G.S.Singhvi, J.

1. The Sales Tax Tribunal, Haryana (for short, "the Tribunal") has referred the following questions for the opinion of this Court:

"(i) Whether in the facts and circumstances of the case, the Tribunal was justified in upholding the penalty under Section 48 of the Haryana General Sales Tax Act, 1973 ?

(ii) Whether in the facts and circumstances of the case, the Tribunal was justified in inferring deliberateness in filing the third quarterly return by ignoring the explanation of the petitioner?

(iii) Whether in the facts and circumstances of the case, the Tribunal was justified in confusing the words withholding with the words evasion of tax and was right in law in upholding the penalty when the turnover for the whole of the year as returned by the petitioner in the return of paddy has been accepted and the assessment made for the whole of the year?" (In the original reference order as well as statement of case sent to this Court, the Tribunal has, by mistake used the word "concluding" but with the consent of the learned Counsel for the parties, we have read the word "confusing" instead of the word "concluding" because the said word does not make any sense).

2. The petitioner is running a rice sheller at Kaithal and is also doing the business of commission agency. It is registered as a dealer under the Haryana General Sales Tax Act, 1973 (for short, "the 1973 Act"). It has been filing returns under Section 25(2) of the 1973 Act on quarterly basis. In the third quarterly return filed for the period ending on December 31, 1975 (assessment year 1975-76), the petitioner did not disclose the purchase of paddy valued at Rs. 9,20,554 and did not deposit the tax, i.e., Rs. 65,727 as required by Section 25(3). While finalising the assessment, the Assessing Authority noted that the petitioner had not filed correct return and observed that this was done with a view to avoid the payment of tax. He, therefore, issued notice to the petitioner proposing to levy penalty under Section 48 of the 1973 Act. The same was accompanied by a detailed memo containing the facts relating to the incorrect return. In the reply filed on behalf of the petitioner, it was pleaded that difference between quarter to quarter is due to the practice of paying tax on receipt of sale proceeds invoice. It was also pleaded that the legal requirements of paying tax on purchase value at the time of dispatch is impracticable by reason of impossibility of computing the purchase value of paddy. It was further pleaded that the tax due for the third quarter had been paid in the fourth quarter. In the course of hearing before the Assessing Authority, the petitioners representative submitted that the tax was withheld in the third quarter to tide over the financial crisis faced by the firm. The Assessing Authority did not accept the explanation of the petitioner and imposed penalty of Rs. 1,31,455 vide his order dated May 10, 1980 by making the following observations :

"The Act enjoins upon every registered dealer to file quarterly returns and to deposit tax according to such returns before their filing. The offence of depositing less tax than the full amount due according to the returns has been dealt in by way of levying interest under Section 25(5) and imposing penalty escape the painful provisions of Section 48. The correctness and true character of returns is to be examined in respect of each quarter separately and not on the basis of the four quarterly returns for the whole year. Statutory notice in form ST-27 makes it clear when it deals with suppression in sales or purchase on quarterly basis. The overall effect in a year may be relevant for determining the quantum of penalty but it does not exclude the application of Section 48. In the present case, the dealer has wilfully suppressed the purchases and husking of paddy in the third quarter to the tune of Rs. 9,20,554 having a tax effect of Rs. 65,727.46 by filing a false and incorrect third quarterl