In penalty proceedings under Section 15-A (1) (a) and (c) of the U. P. Sales Tax Act, the burden of proof lies on the department to establish positively the mens rea and the fact of deliberate concealment of the particulars of the turnover.

( 1 ) THIS revision under Section 11 (1) of the U. P. Sales Tax Act (for short "the Act"), is directed against the order dated May 24, 1980, passed by the Additional Judge (Revisions), Sales Tax, varanasi Range, Varanasi, by which a revision filed by M/s. Nand Mohan Madan Mohan (hereinafter to be referred to as "the dealer"), Visheshwarganj, Varanasi, against the order of the appellate authority, has been allowed and the penalty imposed on the assessee under Section 15-A (1) (a) and (c) of the Act has been quashed and it is directed that the amount of penalty, if paid, shall be refunded according to law.

( 2 ) IT appears that the Sales Tax Officer inspected the shop of the dealer on January 10, 1973, and took in his possession certain account books. An assessment order was passed on January 20, 1977, relating to the year 1973-74. A notice under Section 15-A (1) (c) was served on the dealer to show cause why a penalty should not be imposed on them for deliberately furnishing inaccurate particulars of turnover and also concealing substantial particulars of the turnover.

( 3 ) THE notice was contested by the dealer and it was asserted that some of the account books which were taken into custody by the Sales Tax Officer on January 10, 1973, did not relate to their business but these relate to the separate business of one of the partners, namely, Sri Madan mohan Bhargava. It was further asserted that they have not deliberately concealed any turnover; nor have furnished wrong turnover. By order dated May 7, 1977, the Sales Tax Officer disbelieving the version of the dealer imposed a penalty of Rs. 20,000 under Section 15-A (1) (c)of the Act. Aggrieved by that order an appeal was filed by the dealer which was partly allowed by the Assistant Commissioner (Judicial), Sales Tax, Varanasi, by the order dated January 9,1979, and the amount of penalty was reduced to Rs. 8,000. Still aggrieved by the said order passed by the Assistant Commissioner (Judicial), Sales Tax, the dealer preferred a revision, which was allowed by the Additional Judge (Revisions), Sales Tax, vide order dated May 24, 1980, and the order imposing penalty was quashed. This order has been challenged by the commissioner, Sales Tax, U. P. , Lucknovv, in this Court through the instant writ petition.

( 4 ) I have heard learned counsel for the parties and I have gone through the impugned orders referred to above.

( 5 ) LEARNED counsel for the applicant urged that when on the facts and circumstances of the case the revising authority had himself held the turnover of the dealer has been suppressed, he erred in not imposing penalty under Section 15-A (1) (c) of the Act. Learned counsel further urged that a concurrent finding was recorded by two authorities below to the effect that the assessees account books did not relate to the private arhat business conducted by one of the partners of the firm Madan Mohan Bhargava, but those relate to the business of the assessee-firm. Learned counsel urged that the lower revisional authority, without setting aside that finding, has acted illegally and with material irregularity in exercise of jurisdiction in quashing the penalty imposed under Section 15-A (1) (q) of the Act. He has further submitted that there was deliberate concealment of particulars and inaccurate turnover was deliberately furnished by the assessee and as such, the penalty imposed under Section 15-A (1) (c) of the Act deserves to be maintained. In reply, learned counsel for the opposite party urged that the burden of proof lay on the department for establishing that the assessee had deliberately concealed the turnover and there is no material or evidence for showing any intention of the assessee to conceal facts nor there is any material on record to indicate that an inaccurate turnover was furnished deliberately concealing material facts regarding business turnover of the assessee. Learned counsel further urged that Sri Madan Mohan Bhargava who had carri