R.N. Misra, C.J.
1. The Member, Additional Sales Tax Tribunal, Orissa, has stated this case and referred three questions for opinion of the court at the assessee's instance on an application under Section 24(1) of the Orissa Sales Tax Act, 1947. The questions referred are:
(1) Whether, in the facts and circumstances of the case, the fixation of liability from 1st April, 1972, is justified ?
(2) Whether, in the facts and circumstances of the case, the assessment under Section 12(5) of the Orissa Sales Tax Act is justified after 13th, December, 1972?
(3) Whether, in the facts and circumstances of the case, the levy of penalty is justified when the petitioner has applied for registration
2. We are concerned with the period 1972-73. It is conceded that liability would not accrue unless the gross turnover exceeded Rs. 25,000 within 12 months preceding 1st April, 1972. The learned standing counsel concedes that on the basis of the findings of the Additional Tribunal, the turnover up to 31st March, 1972, was in the range of Rs. 22,000 and odd. Therefore, with effect from 1st April, 1972, there could be no liability. The concession appears to be fair. Therefore, the answer to the first question must be that in the facts and circumstances of the case, the fixation of liability from 1st April, 1972, was not justified. When the matter goes back to the Additional Tribunal in terms of Section 24(5) of the Act, the Additional Tribunal will hear the parties and find out what exactly is the date from which liability can be saddled.
3. So far as the imposition of penalty is concerned, the assessment in the instant case is by taking the year as a unit. The application for registration was dated 13th December, 1972, but was allowed long after on 3rd September, 1973. It has already been held by this Court in the case of Bhanja Bhandar v. State of Orissa  37 S.T.C. 169, that in a case of this type when registration is granted, it must date back to the date of the application for registration. Since the assessee became a registered dealer during the period, he cannot be assessed under Section 12(5) of the Act for that period and there could also be no liability for penalty under the Act for non-registration. The second and the third questions are, therefore, answered in favour of the assessee by holding that the assessment under Section 12(5) of the Act was not called for nor was any justification available for visiting him with any penalty.There would be no order for costs.
B.K. Behera, J.
4. I agree.