G.P. Singh, Ag. C.J.
1. This is a reference made by the Sales Tax Appellate Tribunal (Board of Revenue) at the instance of the assessee. The period of assessment is from 15th November, 1963, to 3rd November, 1964. The assessee filed first quarterly return for this period one day late showing the turnover of Rs. 1,25,200. The assessee's shop was inspected by the Sales Tax Inspector on 17th November, 1964. The inspection showed that the total turnover for the first quarter amounted to about Rs. 3,26,000. The assessee deposited Rs. 20,000 as the amount of tax on the excess turnover on 18th November, 1964 and submitted a revised return on 30th November, 1964, giving the correct figure of the turnover as detected by the Inspector. The Sales Tax Officer completed the assessment by his order dated 28th February, 1966. By the same order, a penalty of Rs. 20,000 was imposed under Section 43(1) of the Madhya Pradesh General Sales Tax Act, 1958, for deliberately concealing the taxable turnover and filing a false return. A penalty of Rs. 2,000 was also imposed under Section 17(3) for late filing of the return. The assessee went up in appeal to the Appellate Assistant Commissioner who decided the appeal by his order dated 13th January, 1969. The Appellate Assistant Commissioner came to the conclusion that there was reason for believing that the real turnover of the assessee was even more than Rs. 3,26,000 which was detected by the Inspector and which was later on accepted by the assessee in its revised return. In the opinion of the Appellate Assistant Commissioner the case needed further inquiry to find out the true measure of turnover. In this view of the matter, the Appellate Assistant Commissioner set aside the assessment and remanded the case for fresh assessment of the turnover. The order levying the penalty was, however, maintained on the view that concealment of turnover in the return filed by the assessee was deliberate. The assessee then went up in second appeal to the Appellate Tribunal. The Tribunal dismissed the appeal. The Tribunal also held that the concealment of turnover was deliberate and it was not a case of bona fide mistake. The Tribunal upheld the order of penalty of Rs. 20,000 under Section 43(1). It, however, reduced the penalty under Section 17(3) to Rs. 500. The assessee then applied for reference on which the following questions have been referred by the Tribunal for our answer:
(1) Under the facts and circumstances of the case, when the case has been remanded for fresh assessment after enquiry, whether the Tribunal was justified in law in maintaining the orders of penalties under Section 43(1) and Section 17(3) ?
(2) If the answer to the first question is against the assessee, whether the penalties are justified in the circumstances of the case ?
2. Learned counsel appearing for the assessee has first submitted that under Sections 17(3) and 43(1), the order imposing penalty must follow the order of assessment of tax and that when the assessment was set aside by the Appellate Assistant Commissioner and the case was remanded, the order imposing penalty ought to have been set aside.
3. Sections 17(3) and 43(1) read as follows:
17. (3) If a dealer fails without sufficient cause to comply with the requirements of a notice issued under Sub-section (1) or a registered dealer fails without sufficient cause to furnish under the said Sub-section, his return for any period, the Commissioner may, after giving such dealer a reasonable opportunity of being heard, direct him to pay, by way of penalty, a sum not exceeding one-fourth of the amount of the tax which may be assessed on him under Section 18 or where no tax is payable a sum not exceeding one hundred rupees.
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.
4. Under Section 17(3), the penalty that can be imposed is 'a sum not exceeding one-fourth of the amount of tax which may be assessed'. This shows that the penalty under Section 17(3) can be imposed only after the tax is assessed. Under Section 43(1), when the Commissioner, after giving an opportunity to the assessee of being heard, comes to the conclusioin that a penalty is imposable, he has to '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 tax which would have been avoided if the return furnished by the dealer had been accepted as correct'. These words as they occur in Section 43(1) also go to show that the penalty under Section 43(1) can be imposed only after the completion of the assessment. The question as to at what stage the penalty can be imposed has been considered by the Supreme Court in the context of Section 271 of the Income-tax Act, 1961, in the case of Jain Bros. v. Union of India  77 I.T.R. 107 (S.C.). It was observed in that case that penalty has to be calculated and imposed according to the tax assessed and that it logically followed that imposition of penalty can take place only after the assessment is completed. In our opinion, the same view has to be taken of Sections 17(3) and 43(1) of the Sales Tax Act with which we are concerned. Under Section 17(3), the maximum penalty cannot exceed one-fourth of the amount of tax. Under Section 43(1), the Commissioner directs the dealer to pay in addition to the tax payable the amount of penalty which is not to exceed the amount of tax which would have been avoided if the return furnished had been accepted. The direction for payment of penalty in view of the language employed in Section 43(1) can be issued only when the tax payable is determined. The tax payable means that tax which the assessee is called upon to pay after the assessment. The words 'amount of tax, if any, payable', as used in Section 271 of the Income-tax Act, have been construed by the Supreme Court in Commissioner of Income-tax v. Vegetable Products Ltd.  88 I.T.R. 192 (S.C.) to mean tax assessed minus the tax already paid. The words 'tax payable' as used in Section 43(1) of the Sales Tax Act, in our opinion, bear the same meaning. It appears, therefore, that both under Section 17(3) and Section 43(1) penalty can be imposed after the assessment is completed. However, in the instant case, the Sales Tax Officer imposed the penalty only after completing the assessment. There was, therefore, no violation of Section 17(3) or Section 43(1) in that matter.
5. The question then is whether, when the Appellate Assistant Commissioner set aside the assessment and remanded the case for fresh assess-ment, he was bound to set aside the order imposing the penalty on the ground that the assessment was reopened. The consideration of this question brings us to Section 38 of the Act. An assessee objecting to an original order of assessment, with or without penalty, can file an appeal under Section 38(1). The powers of the Appellate Assistant Commissioner in disposing of the appeal are contained in Section 38(5), which reads :
38. (5) Subject to such procedure as may be prescribed and after such further inquiry as it may think fit, the appellate authority, in disposing of any appeal under Sub-section (1) or (2), may-
(a) confirm, reduce, enhance or annul the assessment or the penalty or both; or
(b) set aside the assessment or the penalty or both and direct the officer, whose assessment order has been appealed against, to make a fresh assessment, after such further inquiry, as may be directed ; or
(c) pass such orders, as it may think fit.
6. It will be seen from Clauses (a) and (b) of Section 38(5) that the Appellate Assistant Commissioner is not bound to set aside the penalty whenever he sets aside the assessment. The words 'confirm, reduce, enhance or annul the assessment or the penalty or both' as used in Clause (a) envisage that the Appellate Assistant Commissioner may annul the assessment without annulling the penalty. Similarly, the words 'set aside the assessment or the penalty or both' as used in Clause (b) show that while setting aside the assessment the Appellate Assistant Commissioner is not bound to set aside the penalty in all cases. Although the amount of penalty is generally relatable to the amount of tax that may be finally assessed, yet there may be circumstances which may make it clear that reopening of assessment would not reduce the amount of tax or the amount of penalty already imposed. In such cases, the appellate authority in its discretion, while ordering reopening of the assessment, may not think it useful to set aside the order of penalty. That is indeed the position in the instant case. The assessment was set aside by the Appellate Assistant Commissioner to find out whether there was more concealment of turnover than that was actually detected by the Sales Tax Inspector during his inspection and later accepted by the assessee. We have earlier stated that the turnover in the return was originally Rs. 1,25,200. On inspection by the Inspector, it was found that the turnover was really Rs. 3,26,000. This position was accepted by the assessee by filing a revised return on 30th November, 1964. The assessee also paid the deficit tax of Rs. 20,000. From these facts, it is clear that even though the assessment has been set aside and the Sales Tax Officer has been directed to make a fresh assessment, yet there is no possibility that the turnover would be reduced from Rs. 3,26,000, which has already been accepted by the assessee. Further, there is no possibility that the amount of tax that would have been avoided had the original return been accepted would be less than Rs. 20,000. Indeed, as already noticed, the assessee itself deposited Rs. 20,000 as the excess tax on the concealed turnover detected by the Inspector. In this situation, as there was no possibility that on reassessment the amount of penalty already imposed would go beyond the maximum imposable under Sections 17(3) and 43(1), it was open to the Appellate Assistant Commissioner not to disturb the order of penalty. The conclusion that whenever an assessment is reopened it does not invariably mean that the order imposing penalty is also reopened gets support from the Supreme Court case of N.A. Malbary and Bros. v. Commissioner of Income-tax  51 I.T.R. 295 (S.C.). In this case, the facts were that the Income-tax Officer having assessed the income by an estimate levied a penalty on the basis of that estimate. Later, when the Income-tax Officer found that there was concealment of income, he issued notice for reopening the assessment and after completing the assessment recalled the previous order of penalty and passed another order imposing higher penalty. The second order imposing penalty was challenged. It was observed by the Supreme Court in that context that the Income-tax Officer had full jurisdiction to recall the earlier order and to pass another order. It was also observed that the Income-tax Officer had full jurisdiction to make the second order and this he could do even if he had omitted to recall the earlier order. It was pointed out that if he had omitted to recall the earlier order, that would not have made the second order invalid though the two orders could not be enforced simultaneously. It will be seen from this case that the earlier order imposing penalty could not be said to have become invalid or inoperative till the passing of the second order simply because the assessment was reopened. This supports our conclusion that simply because the assessment was set aside by the Appellate Assistant Commissioner and the case was remanded for making fresh assessment, he was not bound to set aside the order imposing penalty. As indicated by us, there is absolutely no possibility that the amount of tax imposed or the amount of concealment is going to be reduced after fresh assessment is made and, therefore, the Appellate Assistant Commissioner was competent not to set aside the order of penalty. For the same reason, the Tribunal was justified in maintaining the order of the Appellate Assistant Commissioner. The question whether it would be open to the Sales Tax Officer to pass fresh order imposing higher penalty and to recall the previous order is not before us and we decline to express any opinion on it.
7. As regards the second question, it is argued by the learned counsel for the assessee that there was no mens rea in not disclosing the turnover in the return and that it was a mistake of the munim and further that the munim ought to have been examined by the Sales Tax Officer before the order of penalty was passed. It is true that there should be some element of mens rea before it can be said that there was concealment of turnover or that a false return was furnished. In this case, however, the Tribunal has clearly found that the motive in showing the abnormal low figure in the return was obvious and that the mistake was not made in good faith. The finding of mens rea is implicit in the finding of the Tribunal. The concealment of turnover was to the tune of rupees two lacs. The concealment of such a magnitude prima facie raises a presumption that it was deliberate. If the assessee wanted to show that it was a case of bona fide mistake, it could have examined the munim. It cannot be said that it was for the department to examine the munim.
8. Next it is argued in the same context that immediately after the mistake was discovered, the assessee filed a revised return and, therefore, there can be no levy of penalty for concealment or for filing a false return. A revised return can be filed under Section 17(2) 'if any dealer discovers any omission, error or wrong statement in any return furnished by him'. This provision is similar to the provision in Section 139(5) of the Income-tax Act, 1961. The benefit of this provision cannot be claimed by a person who has made a false return knowing it to be false and a penalty may be imposed in respect of the previous false return notwithstanding the filing of the revised return : see Kanga and Palkhivala, 'The Law and Practice of Income-tax', 7th Edition, Vol. I, page 826 and Commissioner of Income-tax v. Badridas Ramrai  7 I.T.R. 613 and Commissioner of Income-tax v. Angara Satyam  37 I.T.R. 230 at 238. In the instant case, the position is that the assessee filed the revised return only after his shop was inspected by the Sales Tax Inspector on 17th November, 1964, who detected the concealment of the turnover. Having regard to the extent of concealment, it follows that the previous return must have been false to the knowledge of the assessee and, therefore, the assessee cannot get the benefit of the revised return. The Tribunal was, therefore, right in holding that the imposition of penalty was proper.
9. For the reasons given above, our answer to both the questions is in the affirmative. The assessee shall pay the costs of this reference to the department. Counsel's fee Rs. 100.