( 1. ) THIS is an application under Articles 226 and 227 of the Constitution for the issue of a writ of certiorari for quashing an order passed by the Additional Assistant Commissioner of Sales Tax, Indore, imposing a penalty of Rs.

20,000 on the petitioner under Section 43 (1) of the Madhya Pradesh General Sales Tax Act, 1958 (hereinafter referred to as the Act ).

( 2. ) THE material facts are that an order for the assessment of sales tax for the year 1962-63 was made by the Additional Assistant Commissioner of Sales Tax on 14th February, 1964. At the conclusion of that order the Assistant Commissioner observed that during assessment it had been noticed that the petitioner had deliberately concealed its turnover and had submitted false returns; and that this called for action under Section 43 (1) of the Act and directed the issue of a notice to the petitioner under that provision.

( 3. ) ON receipt of the order of assessment and a notice of demand as also a notice under Section 43 (1), the petitioner applied for copies of certain documents relied on by the Additional Assistant Commissioner in the order of assessment passed by him. The petitioners grievance is that copies of many documents were not given to it and copies of some documents were furnished to it after the passing of the order of penalty on 16th March, 1964. The petitioner, however, filed its reply to the notice under Section 43 (1 ). Therein it was stated that the applicant had maintained correct accounts; that there was no deliberate concealment of its turnover; and that it had not been supplied with copies of certain statements and documents on the basis of which the order of assessment had been made. The reply also contained a prayer for being allowed to examine some 30 witnesses and for the verification of accounts.

( 4. ) THE Additional Assistant Commissioner rejected the submissions made by the petitioner in its reply. In the impugned order he observed that "the books and documents on which the assessment order was passed were not new to the assessee and that it had. inspected them several times"; that those books and documents had been examined at the time of assessments; that it was not necessary to examine any witnesses; and that they should have been examined at the time of assessment. The Additional Assistant Commissioner rejected the contention of the petitioner that the findings given in assessment proceedings could not operate as res judicata in penalty proceedings by just observing that the petitioner had not been able to prove that the concealment of its turnover was not deliberate. After making these observations the Additional Assistant Commissioner stated his conclusion that the petitioner-assessee had deliberately concealed its turnover and had submitted false returns. It must also be noted that an appeal filed by the petitioner against the order of assessment dated 14th February, 1964, is pending before the appellate authority. The Additional Assistant Commissioner rejected the prayer of the petitioner for staying the penalty proceedings till the disposal of the appeal.

( 5. ) HAVING heard learned Counsel for the parties we have reached the conclusion that this application must be granted. Section 43 (1) of the Act is as follows:-43. Power of Commissioner or appellate authority to impose penalty.-- (1) If the Commissioner or the appellate authority in the course of any proceeding under this Act, is satisfied that a dealer has deliberately concealed his turnover in respect of any goods or furnished a false return, the Commissioner or the appellate authority, as the case may be, may after giving the dealer a reasonable opportunity of being heard, direct that the dealer shall, in addition to the tax payable by him, pay by way of penalty a sum not exceeding the amount of the tax which would have been avoided if the return furnished by the dealer had been accepted as correct. It will be seen that a penalty under Section 43 (1) can be imposed