JUDGMENT : ( 1. ) THIS reference has been made by the learned Tribunal under Section 44 (1) of the Madhya Pradesh General Sales Tax Act, 1958 (hereinafter referred to as "the Act") at the instance of the Commissioner of Sales Tax, referring the following question of law for our decision : Whether, under the facts and circumstances of this case, the Board of Revenue was justified in holding where a case has been reopened under Section 19 (1) of the Madhya Pradesh General Sales Tax Act, 1958 and no penalty has been imposed thereunder where all the returns have been furnished during the assessment period and tax has been deposited along with the returns during the assessment period, that the case of the non-applicant was covered under Section 38 (3) (a) of the Act and not under Section 38 (3) (e) of the Act ? ( 2. ) THE material facts giving rise to this reference, briefly stated, are as under : The non-applicant, assessee-firm, was assessed to tax for the period 1st January, 1976 to 31st December, 1976. Thereafter, the case was reopened under Section 19 (1) of the Act and an additional demand of Rs. 15,555 was made on the ground that a wrong rate of tax had been applied to the case of the assessee. The assessee then preferred a first appeal and deposited a tax of Rs. 1,600 [i. e. , 10 per cent as per Section 38 (3) (a) of the Act]. The first appellate authority dismissed the appeal summarily as according to that authority the assessee should have deposited 50 per cent of the additional tax under Section 38 (3) (d) of the Act. The assessee preferred a second appeal before the Tribunal and contended that the order of the first appellate authority was illegal. The contention of the assessee was that it had filed all the returns during the assessment period and had paid tax as per returns and as such, when the matter was reopened it was only liable to pay 10 per cent of the additional demand while preferring first appeal under Section 38 (1) of the Act. ( 3. The contention of the assessee was that it had filed all the returns during the assessment period and had paid tax as per returns and as such, when the matter was reopened it was only liable to pay 10 per cent of the additional demand while preferring first appeal under Section 38 (1) of the Act. ( 3. ) BEFORE the Tribunal the contention on behalf of the department was that the assessees case was covered under Section 38 (3) (e) of the Act and accordingly 25 per cent of the balance demand should have been deposited while preferring first appeal under Section 38 (1) of the Act. Thus, the department by implication, conceded that the order of the first appellate authority raising demand of 50 per cent under Section 38 (3) (d) of the Act was liable to be struck down. The learned Tribunal allowed the appeal of the assessee and directed the case to be sent back to the first appellate authority to hear the assessee and to decide the first appeal on merits. ( 4. ) AS regards the amount, the assessee should have paid, at the time of presentation of the first appeal, the learned Tribunal held that since the non-applicant had filed all the returns in time and had deposited the necessary tax in accordance with the returns and since no penalty was imposed on the assessee in proceedings under Section 19 (1) of the Act, the case of the assessee will be covered by Section 38 (3) (a) of the Act and accordingly, the assessee was liable to pay only 10 per cent of the balance demand at the time of the presentation of the first appeal. ( 5. ) THE Commissioner of Sales Tax made an application for reference under Section 44 (1) stating that when the assessment has been reopened under Section 19 (1) of the Act and no penalty has been imposed, a question of law has arisen as to whether the amount to be deposited on the presentation of the appeal should be under Section 38 (3) (a) or under Section 38 (3) (e) of the Act. ( 6. ) THE learned Tribunal, after hearing the parties, has referred the question of law as stated at the outset. ( 7. ( 6. ) THE learned Tribunal, after hearing the parties, has referred the question of law as stated at the outset. ( 7. ) HAVING heard the learned counsel for the parties and having considered the facts and circumstances of this case we have come to the conclusion that the Board of Revenue was right in holding that where a case has been reopened under Section 19 (1) of the Act and no penalty has been imposed thereunder, where all the returns have been furnished during the assessment period and tax has been deposited along with returns during the assessment period, the case of the assessee, non-applicant, would be covered under Section 38 (3) (a) of the Act and not under Section 38 (3) (e) of the Act. ( 8. ) ACCORDINGLY, we answer the question referred to us in the affirmative and against the department. In the circumstances of the case there shall be no order as to costs of this reference which shall be borne by the parties as incurred.