N.D. Ojha, J.
1. This is a reference under the U. P. Sales Tax Act. The assessee, Shyam Manohar Shyam Sunder, is a dealer in ornaments and bullion. On 10th December, 1959, the Sales Tax Officer (S. B.), raided the business premises of the assessee and recovered double set of account books. The assessee subsequently made a statement on 16th December, 1959, wherein it admitted additional tax liability on account of the escaped turnover for the quarters of the year 1959-60 in respect of which returns had been submitted by that time as also in regard to some earlier years. The assessee on the same date gave a bank draft for Rs. 10,000 and stated that the amount of tax payable by it may be realised out of it and that a sum of Rs. 4,200 may be adjusted as penalty for the year 1959-60. Acting upon the said statement the Sales Tax Officer issued a notice to the assessee to show cause as to why a penalty may not be imposed for the year 1959-60 under Section 15-A of the U. P. Sales Tax Act (hereinafter called the Act). Approval was also sought for imposition of penalty from the Commissioner, Sales Tax, who granted the necessary approval for imposition of penalty of Rs. 4,200 for the year 1959-60. The Sales Tax Officer, after hearing the assessee in reply to the notice, imposed a penalty in the sum of Rs. 4,200 under Section 15-A(l)(b) of the Act. The appeal and the revision filed by the assessee were dismissed by the Judge (Appeals), Sales Tax and the Additional Judge (Revisions), Sales Tax, respectively. The assessee's application for a reference being made to this court also failed, whereupon an application was made in this court under Section 11 (4) of the Act. This court by its order dated 25th November, 1968, held that two points raised questions of law and required the Additional Judge (Revisions), Sales Tax, to draw up a statement of case and refer the said two questions of law to this court for decision. In pursuance of the said order, the Additional Judge (Revisions), Sales Tax, drew up a statement of case and referred the following two questions for the opinion of this court:
(1) Whether on the facts and in the circumstances of the case, it was open to the Sales Tax Officer, Etawah, to impose penalty on 28th March, 1960, although the assessment order for the relevant year was not passed until 27th January, 1961 ?
(2) Whether on the facts and in the circumstances of the case, there was any material on record upon which the imposition of penalty to the extent of Rs. 4,200 could be justified ?
2. As is apparent from question No. (1), the order imposing penalty was passed on 28th March, 1960, whereas the order of assessment for the relevant year, namely 1959-60, was passed on 27th January, 1961. It has been urged by the learned counsel for the assessee that unless the proceedings for assessment for the relevant year were finalised the Sales Tax Officer had no jurisdiction to impose any penalty even if it is accepted for the sake of argument that the quarterly returns contained inaccurate particulars of turnover. It was also urged that since no penalty could be imposed before a final order of assessment was passed, the statement of the assessee on the basis of which the penalty had been imposed was of no consequence and it could not be treated as a material for imposing penalty at that stage. On the other hand, the learned standing counsel submitted that under Sub-clause (b) of Section 15-A(1) of the Act penalty could be imposed at any stage even before final order of assessment was passed if it was established that the particulars furnished even in the quarterly returns were inaccurate. The learned counsel placed reliance upon the decisions of Pavadai Chettiar v. State of Madras  21 S.T.C. 67 and Narain Das Suraj Bhan v. Commissioner of Sales Tax  21 S.T.C.104 (S.C.). In the first case, the assessee was found to have suppressed in his regular accounts as well as monthly returns the correct turnover. However, before final assessment was made the assessee filed a supplementary return in which he included the escaped turnover. On the question whether a penalty could be levied, it was held that the filing of the supplementary return would not be a ground for condoning the assessee's wilful default and the assessing authority would be competent to levy penalty on him. From the facts of the said case, however, it appears that the order imposing penalty was passed either simultaneously or subsequent to the order of final assessment and not prior to that date. This case, therefore, is not relevant for determination of either of the two questions referred to us.
3. In the second case, a return was filed under Section 7 and was accepted by the Sales Tax Officer and assessment was made according to it. Subsequently, on the basis of some information that the turnover of the assessee had escaped assessment, a notice was issued under Section 21(1) of the Act. A fresh assessment was made by the Sales Tax Officer and a notice of demand was issued to pay the additional tax assessed. On the failure to comply with the said notice proceedings for imposition of penalty were started. This case too, therefore, does in no way advance the submission made by the learned standing counsel.
4. The learned counsel for the assessee, on the other hand, has placed reliance upon a Full Bench decision of this Court in I.C. House v. Sales Tax Officer A.I.R. 1971 All. 251, wherein construing the provisions of Rule 41(3) of the U. P. Sales Tax Rules, which applies to a provisional assessment, it has been held that so far as the provisional assessment is concerned the assessing authority has limited jurisdiction. He can determine the turnover to the best of his Judgment and provisionally assess the tax payable only if no return is submitted in respect of any quarter or month within the prescribed period or if the return is submitted without payment of the tax calculated by the dealer of the turnover shown in such return. It was further held that even if a dealer mala fide or without sufficient cause filed a wrong return and asserted that he was not liable to pay tax or was liable to pay tax at a lower rate that would not enable the assessing authority to make a provisional assessment under Sub-rule (3) of Rule 41. Construing the provisions of Section 3 of the Act it was further observed in this case that a tax could not be said to be due unless the amount of tax had been determined and that the tax is determined by the assessing authority as a result of the assessment at the end of the year.
5. Since, after the decision of the aforesaid case, Rule 41(3) has been amended by the U. P. Sales Tax (First Amendment) Rules, 1972, published in the U. P. Gazette, Extraordinary, dated 19th April, 1972 and in pursuance of the said amendment it is now open to the Sales Tax Officer to determine the turnover to the best of his Judgment and provisionally assess the tax payable under the said rule even in those cases where in the opinion of the Sales Tax Officer the return filed is inaccurate or incomplete or contains wrong particulars. The said amendment, however, cannot be of any assistance in the present case inasmuch as Rule 1(ii) of the U. P. Sales Tax (First Amendment) Rules, 1972, lays down that these Rules shall come into force with effect from the date of their publication in the Gazette. As already noticed above, the Rules were published in the U.P. Gazette, Extraordinary, dated 19th April and hence cannot be applied retrospectively to the facts of the instant case. It would thus appear that under the Rules as they stood at the relevant time the question as to whether the return submitted by the assessee contained correct particulars of the turnover or the said particulars were inaccurate could fall for consideration of the assessing authority only at the time of passing the order of assessment at the end of the year. It was not open to the assessing authority to go into the correctness or otherwise of the quarterly returns as and when they were submitted and to pass any order of assessment in respect of them. The following observations made by the Supreme Court in the case of Jaipur Udyog Ltd. v. Income-tax Commissioner, Delhi  71 I.T.R. 799 (S.C.) would be relevant to appreciate the distinction between a provisional assessment and a regular assessment:
The section does not permit an enquiry to be made whether the total income returned by the assessee exceeds the amount admitted by him, nor whether the allowances or deductions claimed are admissible. If there be a discrepancy between the return made and the accounts and documents accompanying the return, the Income-tax Officer may ask the assessee to explain the discrepancy, but he must make a provisional assessment on the basis of the return initially made or clarified and the accounts and documents filed. He cannot make a provisional assessment by holding that certain claims made by the assessee are in law unjustified. If it transpires that the assessee has without reasonable cause concealed particulars of his income or has furnished inaccurate particulars of his income, it may be open to the Income-tax Officer to impose penalty upon him after the regular assessment is completed. But it is not open to him to determine whether there has been any concealment of particulars of income or to decide whether claims which have been made are unwarranted.(Emphasis supplied.)
6. A perusal of Section 15-A of the Act makes it clear that the quantum of penalty to be imposed under either of the three sub-sections of the said section is dependent upon the tax payable by the dealer. Unless an order of assessment is passed, which could be passed only at the end of the year and not after every quarter, the tax payable could not be determined. In Income-tax Officer v. Firm Madan Mohan Damma Mal  70 I.T.R. 293, it was held :
Since penalty has to be calculated and then imposed according to the tax assessed, the penalty being proportionate to the tax, the imposing of penalty must necessarily follow the assessment. The question of imposition of penalty thus arises after the assessment has been completed....
7. Even on this ground the order of penalty could not be passed on 28th March, 1960.
8. In this view of the matter on an interpretation of Rule 41(3) of the Rules as they stood at the relevant time it is apparent that on 28th March, 1960, when the order imposing the penalty was passed it was not open to the Sales Tax Officer to determine whether the assessee had concealed the particulars of the turnover or deliberately furnished inaccurate particulars of such turnover within the meaning of Sub-section (b) of Section 15-A(1) of the Act nor was it open to the Sales Tax Officer to impose any penalty on the said date under Section 15-A(l)(b) and our answer to question No. (1) is in the negative.
9. In view of our aforesaid answer, question No. (2) remains only of academic importance. If the Sales Tax Officer could not go into the question of correctness or otherwise of the quarterly returns on 28th March, 1960, the statement made by the assessee in regard to the escaped turnover, which is the basis of imposition of penalty, could also not be taken into consideration on the said date. An admission does not fall beyond the purview of evidence and the question of consideration of the evidence arises only at that stage where a finding is to be recorded on a fact sought to be proved by the said evidence. It, therefore, follows that the statement on the basis of which a penalty has been imposed could not be treated as material for imposing penalty on 28th March, 1960 and our answer to question No. (2) is, therefore, in the negative.
10. The assessee will be entitled to its costs. The fee of the learned counsel is assessed at Rs. 100.