Bishambhar Dayal, C.J.
1. The order passed in this writ petition (Miscellaneous Petition No. 388 of 1970) shall also govern the disposal of the connected three writ petitions, namely, Miscellaneous Petitions Nos. 387 of 1970, 73 of 1970 and 74 of 1970, filed by the same company, M/s. Jiwanrnal Sons Private Limited, against the imposition of penalty under Section 17(3) of the Madhya Pradesh General Sales Tax Act. These four writ petitions relate to four different periods. Miscellaneous Petition No. 388 of 1970 relates to the year 1962-63, No. 387 of 1970 relates to the year 1963-64, No. 73 of 1970 relates to the year 1964-65 and No. 74 of 1970 relates to the year 1965-66. Since the material facts which have given rise to the common point in these writ petitions are the same, we are disposing of all the four petitions by one common order, giving the facts of the first case (M.P. No. 388 of 1970) which relates to the year 1962-63. The facts of the remaining three cases are materially the same except in respect of dates and figures which do not affect the point in question.
2. Under the Madhya Pradesh General Sales Tax Act, an assessee, who is a registered dealer, has to submit quarterly returns and before filing a return he has to deposit the amount of tax payable under the Act according to his own return and the treasury receipt in respect of such deposit has to be submitted along with the return. In the present cases the petitioner had to file a return under the Central Sales Tax Act. He filed the relevant returns but, according to him, due to financial difficulties he could not deposit in advance the tax as per his return. It is, however, admitted that subsequently before actual assessment he deposited a sum of Rs. 24,524.70. The assessment was made by order dated 1st January, 1969, and tax was assessed at Rs. 21,308.89. A penalty of Rs. 1,500 was imposed for not having complied with Section 17(3) of the M.P. General Sales Tax Act. Thus a total amount of Rs. 22,808.89 was assessed as tax. The petitioner had already deposited more than this amount as noted above and therefore he was entitled to a refund. In some other cases the deposit made by the petitioner was not more than the amount ultimately assessed, but he did make the deposit according to his return in all the cases before he was actually assessed. In all these cases it is also admitted that no notice for depositing the assessed amount had yet been served on the petitioner when these writ petitions were filed.
3. On these facts the contention of the learned counsel for the petitioner is that penalty under Section 17(3) of the M.P. General Sales Tax Act was not payable. Relevant parts of Sub-sections (1) and (3) of Section 17 are quoted below:
(1)...Every registered dealer shall furnish returns in such form, in such manner, for such period, by such date and to such authority as may be prescribed.
(3) If...a registered dealer fails without sufficient cause to furnish under the said sub-section his return for any period, the Commissioner may...direct him to pay, by way of penalty, a sum not exceeding one-fourth of the amount of the tax which may be assessed...
From the above quotations it will be seen that Sub-section (3) of Section 17 provides for imposition of penalty in case a return is not filed. In Sub-section (1) the manner of filing of the return is provided for in detail. But Sub-section (3) does not make penal any defect in the manner of filing the return. If there is complete failure of filing of return it is penal. But if the manner prescribed is not followed fully, there is no provision that even in that case penalty can be imposed. If that had been the intention of the Legislature, the language would have been very different. It could have been easily provided, that penalty can be imposed if the return is either not filed at all or not filed in the form or in the manner, on such dates and to such authority as may be prescribed.
4. Apart from this the department relied on Rule 15 of the Rules made under the M.P. General Sales Tax Act which provides as follows :
Every registered dealer...shall furnish to the appropriate Sales Tax Officer for each quarter of a year a return in form VIII within 30 days from the expiry of the quarter to which the return relates.... Each of such return submitted shall be accompanied by a treasury receipted challan in form VI in respect of tax due according to return.
The contention on behalf of the department was that since the return when filed was not accompanied by a treasury receipted challan in form VI, it cannot be said that a proper return was filed by the assessee and therefore within the meaning of Section 17(3) it must be held that no return had been filed. We are unable to agree with this contention. Rule 15 makes a clear distinction between the return which has to be filed according to the details mentioned above and the treasury receipted challan, which is merely to accompany the return. The treasury challan is not the return and the failure to submit the challan along with the return cannot possibly amount to a failure to file the return itself.
5. The matter can be looked at from another aspect also. Section 17 deals with the filing of the return and provides for penalty if the return is not filed, while Section 22 deals with the deposit of the tax and provides for penalty in case tax is not deposited under certain circumstances only. Sub-section (2) of Section 22 requires that tax which is due according to the return shall be deposited before the return is filed. Sub-section (3) provides that in case the assessee subsequently finds that by mistake he has under-calculated the tax in his return, he may subsequently deposit the balance due. Sub-section (4)(i) provides for the deposit of tax which is due by such date as may be specified in a notice to be issued by the Commissioner for this purpose and such date (to be specified) shall be 'not earlier than 30 days from the date of service of such notice'. This tax, for which the Commissioner may serve a notice, includes tax due where returns have been furnished without full payment: [(4)(i)(a)]. This provision clearly means that in case the assessee has not paid full tax before furnishing the return, the deficiency can be demanded by service of notice which notice has to give at least 30 days' time after its service to make the deposit. Sub-section (4-A) then provides for penalty in case the amount is not deposited according to the notice. The provisions of Section 22, which deals directly with the deposit of tax and which makes penalty payable only when a notice for deposit has been served and has not been complied with, are special provisions relating to the payment of tax, and in the face of this special provision the right to impose penalty for non-deposit of tax cannot be assumed by inference from Section 17(3) which only deals with the furnishing of returns.
6. From another point of view also imposition of penalty for not having deposited the tax in advance is unreasonable because the assessee may over-estimate his liability of tax which, in fact, may never be due and it would be difficult to ascribe to the Legislature the intention of imposition of penalty on an assessee for not having deposited any such over-estimated tax which has not been assessed and found due. In the case under consideration, it has already been mentioned that the assessee had estimated his liability of tax at an amount of Rs. 24,524.70, while ultimately he was found liable only to pay Rs. 21,308.89 as tax. Unless a very clear and unequivocal language is used by the Legislature, such a power to impose penalty for not having deposited advance tax cannot be inferred. Penal provisions have to be strictly construed and, if ambiguous, are construed in favour of the assessee. We are therefore clearly of opinion that the imposition of penalty under Section 17(3) in these cases is wholly without jurisdiction.
7. Learned counsel appearing for the petitioner relied on a decision of the Gujarat High Court in Viswa and Co. v. State of Gujarat A.I.R. 1967 Guj. 19. The Gujarat case was slightly different as penalty had been imposed under the provisions similar to Section 22 of the M.P. General Sales Tax Act mentioned above and not on the basis of a provision like Section 17 of the above Act which we have to consider in these cases. We therefore need not say anything further about the Gujarat case.
8. Learned counsel for the petitioner also contended that the Central Sales Tax Act came into force in the year 1956 when, in the area to which these cases relate, the Central Provinces and Berar Sales Tax Act was in force which did not contain any provision like Section 17 of the M.P. General Sales Tax Act. The M.P. General Sales Tax Act came into force in 1959 and the provisions of this Act cannot be utilised for the assessment of penalty under the Central Sales Tax Act. The contention of the learned counsel was that the machinery of assessment and collection contemplated under Section 9(3) of the Central Act would be the machinery available under the State Act in force at the time when the Central Act was passed and not the machinery available during the period for which the assessment was made. He relies upon the principle of legislation by reference. This argument was accepted by the Madras High Court in two decisions: D.H. Shah and Co. v. State of Madras  20 S.T.C. 146 and State of Madras v. M. Angappa Chettiar and Sons  22 S.T.C. 226. With due respect to the learned Judges of the Madras High Court who decided those cases, we are unable to agree with this contention. The relevant words of Sub-section (3) of Section 9 of the Central Act may be quoted:
The authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and enforce payment of any tax....
It will be seen that this sub-section does not incorporate any part of the State legislation by reference. It merely provides that the machinery which is being utilized for the State tax, 'for the time being', will also do the work on behalf of the Central Government under the Central Act. The words 'for the time being' are very significant. Moreover, the definition of the term 'sales tax law' contained in Section 2(i) is as follows :
'Sales tax law' means any law for the time being in force in any State or part thereof which provides for the levy of taxes on the sale or purchase of goods generally or on any specified goods....'
Thus, the words used in Sub-section (3) of Section 9 relating to State law have been made further clear by this definition that they relate to the law which is in force 'for the time being', i.e., during the period for which assessment is to be made. In the face of these clear provisions we are unable to agree with the learned Counsel that the old law which was applicable on the date when the Central Sales Tax Act came into force can only be made use of. However, as stated above, on the first point we find the contention of the assessee to be unanswerable.
9. Learned counsel appearing for the State also contended that two of these writ petitions, namely, Miscellaneous Petitions Nos. 73 and 74 of 1970, were not filed within (he usual 90 days after the last order passed in revision and hence those petitions should be rejected on the ground of delay. Since we have come, to the conclusion that the assessment of penalty was wholly without jurisdiction, we do not agree that those petitions should be dismissed merely on the ground of delay. There is no limitation prescribed for filing a writ petition and imposition of a large amount of penalty certainly affects the fundamental rights of the petitioner.
10. The result, therefore, is that all the four writ petitions are allowed, the assessment of penalty under Section 17(3) in all these cases is quashed and we direct that the amount of penalty so assessed shall not be realised from the petitioner in any of these four cases. The petitioner will get his costs from the respondents in all these cases. Counsel's fee Rs. 100, if certified. The amount of security for costs shall be refunded to the petitioner in all the four cases.