Judgment :- Paripoornan, J. These are connected cases. The common appellant in this batch of three cases is a firm manufacturing Liquid Paints and is an assessee under the Kerala General Sales tax Act. It is Small Scale Industrial Unit. The Revenue is the respondent herein. The assessee claims to be eligible for exemption from Sales tax as per Government Notification No.S.R.O. 968/80. Originally. the assessee was allowed exemption by the District Industries Centre. Kottayam in the sum of Rs.55.231/- from 10-6-1982. The assessee made additional investments. In submitting the annual returns for the three years 1983-84.1984-85 and 1985-86. the assessee claimed exemption from sales tax for the entire turnover conceded for the above three years. The total turnover disclosed. exemption claimed and the date of filing of returns are as follows: The Sales Tax Officer allowed exemption to the extent of 90% of the capital fixed assets on the basis of the certificate issued by the District Industries Centre. Kottayam dated 27-10-1986. The General Manager. District Industries Centre. Kottayam informed the assessing authority that the certificate dated 27-10-1986 is a forged one. On this basis. the assessments for the years 1983-84.1984-85 and 1985-86 were taken up in suo mote revision under S.35 of the K.G.S.T. Act by the Deputy Commissioner of Agricultural Income tax and Sales tax. Kottayam and the assessments were cancelled. The revisional authority ordered a remit of the matter. It is stated that the assessments are still pending. While so. the Sales tax Officer initiated penalty proceedings against the assessee under S.45A of the KG.S.T. Act. He proposed to levy penalty. for the three years. against the assessee for filing untrue and incorrect returns. alleged to be based on forged certificate of the District Industries Centre. Kottayam. The assessee objected to the same. Even so. by various proceedings. the Sales tax Officer imposed a penalty for the year 1983-84 in the sum of Rs.59.622/-. for the year 1984-85 in the sum of Rs.1.4_ ; °.o and for the year 1985-86 in the sum of Rs.1.56.547.50. In the revisions filed before the Deputy Commissioner. Kottayam. the penal ties were cancelled. The Board of Revenue initiated suo mote revision under S.37 of the KG.S.T. Act to revise the order passed In the revisions by the Deputy Commissioner of Sales tax. Kottayam. Notice was given to the assessee to show-cause why the ore "of the Deputy Commissioner. In the revisions filed before the Deputy Commissioner. Kottayam. the penal ties were cancelled. The Board of Revenue initiated suo mote revision under S.37 of the KG.S.T. Act to revise the order passed In the revisions by the Deputy Commissioner of Sales tax. Kottayam. Notice was given to the assessee to show-cause why the ore "of the Deputy Commissioner. Kottayam should not be cancelled. The Board of Rev- t- - stated that the assessee filed returns "claiming" exemption on the turnover supported by a forged document and the claim was baseless. since the statutory returns filed Claiming exemption. on the strength of forged documents is not permissible. Notwithstanding the objections of the assessee. the Board of Revenue. by its order dated 26-2-1990 cancelled the order passed by the Deputy Commissioner of Sales tax. Kottayam in the revisions and restored the orders of penalty passed by the assessing authority for the three years. In these three appeals. the attack is against the common order passed by the Board of Revenue dated 26-2-1990 suo mote cancelling the order passed in the revisions by the Deputy Commissioner of Sales tax. Kottayam and restoring the orders passed by the assessing authority levying various penalties. The appeals are filed under S.40 of the Act. 2. We heard counsel for the appellant as also counsel for the respondents/ Revenue. Appellant's counsel raised three points. (1) The assesses did not file any incorrect or false return; if at all exemption was improperly Claimed. (2) No mens rea is alleged or proved to attract the provisions of S.45A of the Act. (3) In the final analysis. there is no evasion of tax. So. even if penalty is exigible. the maximum penalty cannot exceed Rs. 5000/-. Counsel for the Revenue supported the order passed by the Board of Revenue stating. that the assessee filed false and incorrect returns based on a forged certificate of the General Manager. District Industries Centre. Kottayam and so penalty is exigible. We are of the view that the entire matter is in a narrow compass. In judging the issues involved. we should bear in mind that S.45A of the Act is a penal provision. It should be strictly construed. Initially. the burden is on the Revenue to prove that the assessee submitted incorrect or untrue returns under S.45A(1)(d) of the Act. That is fundamental. Has it been proved. in this case? We are afraid. In judging the issues involved. we should bear in mind that S.45A of the Act is a penal provision. It should be strictly construed. Initially. the burden is on the Revenue to prove that the assessee submitted incorrect or untrue returns under S.45A(1)(d) of the Act. That is fundamental. Has it been proved. in this case? We are afraid. the authorities have wholly confused the issue by importing extraneous and irrelevant matters. Shortly stated. the assessee filed the returns for the year 1983-1984 on 26-4-1984. for the year 1984-85 on 30-4-1985 and for the year 1985-86 on 30-6-1986. It simply claimed exemption. No particular material was relied on or reason stated there for. then. In the revisional order. passed by the Board dated 26-2-1990. it is categorically stated that the assessee filed the certificate of the General Manager. Dist. Industries Centre. Kottayam dated 27-10-1986 at the time of assessments and claimed exemption. It was produced before the assessing authority in April. 1987. A further certificate enhancing the exemption limit. dated 8-3-1989 was also filed for the identical period. In para 9 of the order. the Board of Revenue categorically states that the return for all the three years were signed and filed by the firm before the assessing authority before 30-4-1986. It is further stated that at the time of filing of Form 8 return for the three years. the firm was not in possession of any order enhancing the exemption limit. As stated in para 13 of the said order. the firm was not in possession of the certificate nor even filed the application for getting exemption before the General Manager. District Industries Centre. Kottayam. at the time of filing of the returns. It is nearly an year after the filing of the returns. in April 1987. the assessee 1 " ^' £ certificate from the General Manager dated 27-10-1986. A further certificate showing an enhanced entitlement dated 8-3-1989 was also filed. But. it is common ground that the assessee did not file the alleged forged certificate along with the. returns or at the time of filing of the returns. It was done only long thereafter. According to the Board of Rever'e. the firm was not in possession of the certificate. at the time when he returns were filed. 3. But. it is common ground that the assessee did not file the alleged forged certificate along with the. returns or at the time of filing of the returns. It was done only long thereafter. According to the Board of Rever'e. the firm was not in possession of the certificate. at the time when he returns were filed. 3. The offence with which the assessee- is charged is the submission of an untrue or incorrect return under S.45A(1)(d) of the K.G.S.T. Act. It is so stated because. according to the Board of Revenue. the certificate of the General Manager of the District Industries Centre. Kottayam filed was a forged document and it was produced by the Managing Partner of the firm in support of "the claim" for enhanced sales tax exemption and so the firm cannot retreat from the responsibility of filing an untrue or incorrect return. We are afraid that the approach and conclusion of the Board of Revenue has failed to give effect to the glaring and patent facts appearing in the case. The returns were filed. for the three years. long before 30-4-1986. No doubt. exemption was claimed for all the three years. But. it is common ground that in the returns the exemption was not claimed. by relying on the certificate of the District Industries Centre. Kottayam. The certificate of the General Manager of the District Industries Centre. which is stated to be forged. admittedly is filed dated 27-10-1986. It was produced one year after the filing of the returns. in April. 1987. The second certificate showing enhanced entitlement was filed still later on 8-3-1989. On the dates when the returns were filed. the assessee had riot even filed an application to obtain the certificate; nor was it in possession of the certificates. It was not in possession of the forged certificates put forward at the time of assessment claiming exemption. In these circumstances. can it be said that the assessing authority could be satisfied that the assessee has submitted an untrue and incorrect return on the basis of a forged certificate? The relevant point of time. to consider whether the assessee submitted an untrue and incorrect return is when the return was filed. In this case. the returns were filed before 30-4-1986. The gravamen of the charge is that the returns submitted are untrue or incorrect. The relevant point of time. to consider whether the assessee submitted an untrue and incorrect return is when the return was filed. In this case. the returns were filed before 30-4-1986. The gravamen of the charge is that the returns submitted are untrue or incorrect. since the claim for exemption was based on a forged document. The document was filed later it was not in existence at all when the returns were filed. No reliance was placed on such forged documents. at the time when the returns were filed. The offence with which the assessee is charged is submission of "untrue or incorrect return" and not putting forward or substantiating the returns filed. by a false plea or document. put forward later. This point was overlooked. 4. In these circumstances. we are unable to hold that the assessee committed an "offence" of submission of untrue or incorrect returns. by producing a forged document. for claiming exemption. The basic or fundamental factor necessary to attract S.45A(1)(d) of the Act is absent. Unless that minimal requirement is satisfied and the initial burden cast on the Revenue on the score is discharged. the assessee cannot be penalised under S.45A(1) (d) of the Act. In this view. the Board of Revenue was in error in holding that penalty is exigible for all the three years. Counsel for the Revenue was not able to point out that there was any independent investigation. either by the assessing authority or by the Board of Revenue. to show that apart from a certificate which came into existence long after the returns were filed. there was independent material to show that the exemption claimed by the assessee in the returns was not bona fide and was unfounded. so as to say that the returns filed were incorrect or untrue. Such a case was not put forward; nor was it found. 5. In these circumstances. we set aside the order passed by the Board of Revenue dated 26-2-1990 for the three years (1983-84.1984-85 and 1985-86) and restore the order passed in revisions by the Deputy Commissioner. The appeals are allowed. Appellant succeeds on point No. (1) formulated in para 2 supra. The other points are left open. Dated this the 5th day of June. 1990.