Bishambhar Dayal, C.J.
1. This is a reference Under Section 44 of the M.P. General Sales Tax Act. The point referred is :
Whether on the facts and circumstances of the case, the penalty of Rs. 7,500 imposed on the applicant Under Section 43(1) of the Act was so imposed lawfully and for reasons sustainable in law.
2. The facts are not in dispute. During the assessment year 1963-64, the assessee collected Rs. 3,10,252.48 and Rs. 5,161.46 as sales tax upon its turnover from its customers. While filing its return, it did not show this amount as part of the turnover. The Sales Tax Officer added back this amount and enhanced the sales tax by Rs. 15,617.85. Since these amounts of sales tax had not been shown in the turnover, penalty proceedings were started and a sum of Rs. 7,500 has been imposed as penalty.
3. The contention on behalf of the assessee is that there was no intention either to conceal the income or to file a false return within the meaning of Section 43(1) of the M.P. General Sales Tax Act. During the previous years also having received bona fide advice from the senio counsel the assessee did not pay tax on the amount which it separately realised as sales tax. It had not added this amount in its turnover. The Board of Revenue accepted all the facts of the case but held that there was a technical metis rea in the case. We are unable to accept this proposition. Either a man had the guilty intention at the time of filing his return or he had not. It is not a matter of technicality at all. It is a matter of decision of fact based on the facts and circumstances of a case. In the present case, we are clearly of the opinion that the assessee had no intention to deceive the sales tax department. The expression 'has deliberately concealed his turnover ...or furnished a false return' in Section 43(1) of the Act necessarily indicates a guilty intention of trying to deceive the department. In the present case, no such intention can be inferred. In Delhi Cloth General Mills Co. Ltd., Gwalior v. Commissioner of Sales Tax, M.P. Miscellanous Civil Case No. 199 of 1967 decided on 1st May, 1968, it was held by a Division Bench of this Court in very similar circumstances that the assessee was not liable to penalty.
4. We accordingly answer the question referred as follows :
On the facts and circumstances of the case, the penalty of Rs. 7,500 imposed on the applicant Under Section 43(1) of the Act was not imposed lawfully and for reasons sustainable in law.
Parties shall bear their own costs of this reference.