G.G. Sohani, J.
1. By this reference under Section 44(1) of the M. P. General Sales Tax Act, 1958, hereinafter referred to as the 'Act' the Board of Revenue has referred the following question of law to this Court for its opinion :
Whether, under the facts and circumstances of the case, the imposition of penalty under Section 43 of the State Act was justified ?
2. The material facts giving rise to this reference, as set out in the statement of the case, are as follows : The assessee is a dealer in tendu patta, cotton-seeds, bidis, etc., and was assessed to sales tax for the Diwali year 1966-67 under the Central Sales Tax Act, 1956. The turnover shown in the original returns was Rs. 15,96,463.87. The assessee, however, submitted a revised return in which an additional turnover of Rs. 3,01,527 was shown. The assessing authority commenced penalty proceedings under Section 43 of the Act and held that the assessee had concealed his turnover of Rs. 3,01,527. In this view of the matter, penalty of Rs. 3,000 was imposed on the assessee under Section 43 of the Act. The appeal npreferred by the assessee before the Deputy Commissioner of Sales Tax was dismissed. On further appeal, the learned Member of the Board of Revenue held that from the material on record it was not proved that there was any intentional concealment of turnover by the assessee or that he had furnished a false return with dishonest intention. In this view of the matter the learned Member held that imposition of penalty under Section 43(1) of the Act was not called for. At the instance of the department, the Board has referred the aforesaid question of law to this Court for its opinion.
3. At the time of hearing of this reference, learned counsel for the department conceded that the question, as framed by the Board did not bring out the real issue involved in this case. The question is, therefore, reframed as under :
Whether, on the facts and in the circumstances of the case, the Board was right in holding that imposition of penalty under Section 43(1) of the Act was not justified ?
4. Now, the finding of the Board that the assessee had not concealed its turnover or had not filed a false return with dishonest intention is a finding based on the material on record. The Board took into consideration the fact that revised return showing the additional turnover was voluntarily filed by the assessee before the assessment was finalised. Learned counsel for the department was unable to satisfy us that the finding of the Board was based on no evidence or was based on surmises. Under the circumstances, our answer to the question reframed by us is in the affirmative and against the department.
5. Reference answered accordingly. Parties to bear their own costs.