ORDER Bishambhar Dayal, C. J.- 1. In this case four assessment orders are challenged for periods from 1st April 1961 to 31st March 1962, 1st April 1962 to 31st March 1963, 1st April 1963 to 31st March 1964 and 1st April 1964 to 31st March 1965. There are appeals pending against these assessment orders and the questions raised by learned counsel for the applicant with regard to the merits of the assessment need not be gone into in this writ petition for they will be considered by the appellate tribunal. 2. Learned counsel has, however, contended that the imposition of penalty in this case was without jurisdiction and without following the proper procedure. Learned counsel has contended that after the arguments were heard on the 26th October 1967 the case was closed and the applicant was asked whether he would waive the service of notice regarding the imposition of penalty and the applicant waived the service of notice. Thereafter nothing happened and the ultimate order of imposing the penalty and assessment was passed on 27th October 1967. 3. The contention of learned counsel for the applicant is that apart from giving a notice before imposing penalty it is also the duty of the assessing officer under rule 33 (2) of the Rules framed under the M. P. General Sales Tax Act to give an opportunity to the applicant to show cause why penalty should not be imposed; and that consequently the mere waiver by the applicant of the service of notice did not obviate the necessity of giving an opportunity to show cause why penalty should not be imposed. Sub-rule (2) of rule 33 is as follows :- On the date fixed in the notice issued under sub-rule (i) or in case the notice is waived on such date which may be fixed in this behalf the assessing authority shall, after considering the objections raised by the dealer and examining such evidence as may be produced by him and after taking such other evidence as may be available, assess or reassess, the dealer to tax and/or impose a penalty or pass any other suitable order." The rule makes it quite clear that before imposing a penalty is the duty of the assessing officer, even when a notice is waived, to hear the assesssee's objections and to decide them before imposing penalty. In the present case, as stated above, a statement waiving the notice was given by the assessee and no further opportunity was given to the assessee to show cause why penalty should not be imposed. The case was closed on that very date and no further date was fixed for hearing the assessee on the point. Imposition of penalty in the assessment orders dated 27th October 1967 is, therefore, without jurisdiction and without following the procedure prescribed by law and is also against all principles of natural justice. The part of the assessment order imposing penalty upon, the applicant is, therefore, quashed in all the four assessment orders. The appeals against these orders are already pending before the appellate tribunal and this order does not prejudice the - right of the appellate authority to take such action according to law as it thinks proper. 4. It is also contended by learned counsel for the applicant that in this case the appeals are to be heard by Shri P. S. Verma on account of a special order passed by the learned Commissioner. Shri P. S. Verma has been transferred to Raipur and he is now no more in Jabalpur to decide the cases of this area. In his explanation given to the Commissioner about the delay in deciding the appeals the learned officer has stated that he had a mild heart attack and was suffering for a few months on account of which he could not dispose of the appeals in these circumstances it does not appear to be a proper order by the Commissioner to direct him to come every time from Rajpur to Jabalpur merely for the purpose of hearing these appeals. After all he has not disposed of the appeals yet; he has merely heard them for some time. It would not be difficult for another officer to deal with these appeals according to law. We, therefore, set aside the order of the Commissioner directing these appeals to be heard by this particular officer. 5. On behalf of the Department a question has been raised that this petition should not be entertained on behalf of the applicant Naraindas Sindhwani who has filed the petition in his personal capacity. We, therefore, set aside the order of the Commissioner directing these appeals to be heard by this particular officer. 5. On behalf of the Department a question has been raised that this petition should not be entertained on behalf of the applicant Naraindas Sindhwani who has filed the petition in his personal capacity. We have considered this question in paragraph 4 of our order in M. P. No. 264 of 1959 1969 JLJ=1969 RN 547, For the reasons given there this contention is overruled. 6. The writ petition is accordingly partly allowed with costs, Counsel's fee is fixed at Rs. 75/- The outstanding amount of the security deposit shall be refunded to the petitioner.