JUDGMENT B. C. CHAKRABARTI (Chairman). - This writ application under article 226 of the Constitution of India was originally filed before the High Court and has since been transferred to this Tribunal for disposal under the provisions of the West Bengal Taxation Tribunal Act, 1987. 2. In this application the assessments for the period 1983-84 including the order for imposition of penalty under the Central Sales Tax Act, 1956 and the Bengal Finance (Sales Tax) Act, 1941 and order for payment of interest under the aforesaid Acts were initially challenged. At the time of hearing, however, the challenge was confined only to the order of imposition of penalty and the order charging interest. 3. The facts leading to the case may be briefly stated thus : The applicant is engaged in the business of selling, inter alia, woollen carpets. It is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941 (for short "the BFST Act"). Rule 3 of the Rules framed under the BFST Act provided that a dealer liable to pay tax may deduct from his gross turnover, its turnover on the sales of various types of goods mentioned in the several sub-clauses of the rule. Clause (28), prior to April, 1975, related to sales of cotton fabrics, rayon or artificial silk fabrics, woollen fabrics, dyed or printed, and sales of mill-made cotton fabrics embroidered after they came out of the mill. By a notification bearing No. 1823-F.T. dated April 1, 1975, clause (28) of rule 3 was substituted with effect from April 7, 1975. The substituted clause is reproduced below : "28(a) Sales of all varieties of textile fabrics (other than satranchi, carpets and druggets) made wholly or partly of cotton, staple fibre, rayon, artificial silk or wool including handkerchiefs, towels, bed-sheets, bed spreads, table cloths, napkins, dusters, cotton velvets and velveteen, tapes, niwars and laces. Explanation. - In this sub-clause the expression 'textile fabrics' includes embroidered textile fabrics, but does not include pure silk cloth, rubberised cloth, belting and pipes including hosepipes. (b) Sales of tobacco other than cigarettes. Explanation. Explanation. - In this sub-clause the expression 'textile fabrics' includes embroidered textile fabrics, but does not include pure silk cloth, rubberised cloth, belting and pipes including hosepipes. (b) Sales of tobacco other than cigarettes. Explanation. - In this sub-clause the expression 'tobacco' has the same meaning as attributed to it in the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944)." The result of the substitution of clause (28) in the manner aforesaid was that sales of carpets made by the applicant which was heretofore exempt from payment of any sales tax, became liable to sales tax at the rate of 15 per cent/11 per cent under the Schedule of the Act. 4. The applicant filed a writ application before the High Court being C.R. No. 12324(W) of 1975 challenging the said notification. A rule was issued and an interim order of injunction was passed restraining the sales tax authorities from giving effect to the said notification and from making any assessment or collecting any sum if already assessed. By the said order liberty was given to the applicant to submit returns showing the sales of carpets exempted from the payment of tax till the disposal of the rule. In terms of the said order the applicant filed its returns from time to time showing sales of carpets exempt under rule 3(28) of the Rules. In the returns the gross turnover of sales of all goods including the carpets were shown but the sales of carpets were deducted with reference to rule 3(28) for arriving at the taxable turnover. The said writ application was disposed of in November, 1979, by making the rule absolute. The notification by which rule 3(28) was amended, was declared ultra vires and void. The sales tax authorities, however, preferred an appeal before the Division Bench against the said judgment and also prayed for interim orders before the appellate Bench. In March, 1981, the Division Bench directed the sales tax authorities to complete the assessment but restrained them from giving effect to or communicate the same to the applicant. The appeal eventually was dismissed in March, 1987, with certain modifications. In March, 1981, the Division Bench directed the sales tax authorities to complete the assessment but restrained them from giving effect to or communicate the same to the applicant. The appeal eventually was dismissed in March, 1987, with certain modifications. The judgment of the trial Judge setting aside the impugned notification amending rule 3(28) of the Rules, was set aside but it was held that the applicant was entitled to the declaration that carpets having more than 40 per cent wool by weight, could not be assessed to tax at a rate higher than the rate prescribed under section 15(a) of the Central Sales Tax Act, 1956, that is to say, at a rate exceeding 4 per cent. The sales tax authorities not having preferred any appeal against the decision it has become final and binding between the parties. 5. After the aforesaid decision the authorities made assessment for the period 1983-84 which is the subject-matter of the writ application. During the pendency of the appeal before the Division Bench, the BFST Act, 1941, was amended by introducing section 10A with effect from October 1, 1983, providing for payment of interest under circumstances mentioned in the various sub-sections of the said section. 6. As already stated, in the present application, three orders made under the BFST Act, 1941 and three orders made under the Central Sales Tax Act, 1956, for the period 1983-84 are involved. The orders relate to assessment, imposition of penalty and charging of interest. We have already indicated that at the time of hearing the challenge was confined only to the imposition of penalty and the charging of interest. It may be mentioned here that the Tribunal has no jurisdiction to decide the questions raised relating to the Central Sales Tax Act, the said Act not being a specified State Act under the West Bengal Taxation Tribunal Act, 1987. We shall, therefore, confine ourselves to the imposition of penalty and the charging of interest under the BFST Act, 1941 only. 7. It appears that the applicant preferred appeals against the three impugned orders before the appellate authority under the Sales Tax Act. At the time of hearing, Mr. Bajoria, appearing on behalf of the applicant, undertook that the applicant shall not pursue the appeals. 8. 7. It appears that the applicant preferred appeals against the three impugned orders before the appellate authority under the Sales Tax Act. At the time of hearing, Mr. Bajoria, appearing on behalf of the applicant, undertook that the applicant shall not pursue the appeals. 8. The case of the applicant before us, in short, is that the imposition of penalty under section 11(1) of the BFST Act, 1941, amounting to Rs. 2 lakhs and the charging of interest under section 10A of the BFST Act, 1941, are both without the authority of law and hence not sustainable. 9. The respondents have opposed the application. 10. In the first place, Mr. P. K. Chakraborty, appearing on behalf of the respondents, raised a preliminary objection as to the maintainability of the application itself. His contention is that the applicant having resorted to a remedial measure by filing appeals against the impugned orders, should pursue the same and should not be permitted to invoke the extraordinary jurisdiction by filing a writ application under article 226 of the Constitution. It is submitted that no constitutional question is involved and the appellate court would be quite competent to decide the disputed issues. Mr. Bajoria, appearing on behalf of the applicant, on the other hand, submitted that the question of chargeability of interest was considered by this Tribunal in the case of Kingsway & Co. v. Commercial Tax Officer reported in [1990] 76 STC 119 and the interpretation given therein to section 10A would be binding on the authorities below. Consequently, it was contended that it may be an exercise in futility to pursue the appeals there. It was further contended that the question involved is a recurring one and in all assessments completed after the disposal of the appeal by the Division Bench of the High Court, interest and penalty are being levied. If the point raised in this case is decided here in the Tribunal, multiplicity of proceedings could be avoided. In support of the contention of Mr. P. K. Chakraborty reliance was placed in the case of Titaghur Paper Mills Co. Ltd. v. Store of Orissa reported in [1983] 53 STC 315 (SC). In that case the High Court dismissed the writ petitions in limine. In support of the contention of Mr. P. K. Chakraborty reliance was placed in the case of Titaghur Paper Mills Co. Ltd. v. Store of Orissa reported in [1983] 53 STC 315 (SC). In that case the High Court dismissed the writ petitions in limine. On appeal, the Supreme Court observed that under the scheme of the Act there is a hierarchy of authorities before which the petitioners would get adequate redress against the wrongful acts complained of. The Supreme Court observed that it is well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, remedy provided by the statute only must be availed of. As against this Mr. Bajoria relied upon several decisions of the Supreme Court in justification of the presentation of the writ application in spite of provisions for preferring appeal under the statute. The first case relied on by Mr. Bajoria, is the case of Onkarlal Nandlal v. State of Rajasthan reported in [1985] 60 STC 314. In this case the Supreme Court observed that "ordinarily we do not entertain an appeal directly against an order made by an officer in the hierarchy, when there are other remedies by way of appeal or revision provided to an assessee under the statute". In that case the question at issue was whether a resale made by an assessee in the course of inter-State trade or commerce, can be regarded as a resale within the State with all its consequences. The Supreme Court observed that the High Court had in another case already taken a view on the disputed question. It was, therefore, argued on behalf of the assessee that it would be futile to drive the assessee to the procedure of appeal and revision and then a writ petition to the High Court. The contention was upheld by the Supreme Court and, accordingly, special leave was granted and the appeal was entertained. The next case relied on by Mr. Bajoria is the case of Jaswant Sahakari Sakhar Ltd. v. Union of India reported in [1986] 26 ELT 904. This is a decision of the Bombay High Court which held that if the highest authority stated under the Act had already predetermined the question, the statutory remedy has ceased to be a remedy and the filing of an appeal/revision becomes an exercise in futility. 11. Mr. This is a decision of the Bombay High Court which held that if the highest authority stated under the Act had already predetermined the question, the statutory remedy has ceased to be a remedy and the filing of an appeal/revision becomes an exercise in futility. 11. Mr. Bajoria then referred to a decision of the Supreme Court in Filterco v. Commissioner of Sales Tax reported in [1986] 61 STC 318 (SC); [1986] 24 ELT 180 (SC). In that case too it was observed that when the superior officer, namely, the Commissioner of Sales Tax has already passed a well-considered order in exercise of his statutory jurisdiction and a substantial portion of the tax has to be deposited before an appeal or revision can be filed, filing of an appeal before the Appellate Assistant Commissioner as urged by the High Court, would be an exercise in futility. Finally, reliance was placed on a Division Bench decision of the Calcutta High Court in the case of Collector of Central Excise v. Madura Coats Ltd. reported in [1982] ELT 129. A point was taken in that case against the maintainability of the writ petition on the ground of alternative remedy. It was pointed out that the respondent-company made an application for refund of the excise duty paid by it under protest. That application was rejected and thereafter an appeal was preferred by the respondent-company and during the pendency of the appeal, the writ petition was filed before the High Court. In the circumstances, it was contended that the respondent-company having availed itself of an alternative remedy is debarred from moving the High Court under article 226 of the Constitution. It was contended on behalf of the respondent-company that every year the company has to pay the duty on warp sheets under protest and also to make an application for refund. After the application is rejected, the company has to file an appeal. Even if the appeal succeeds that does not prevent the excise authorities from charging excise duty and so there will be no final determination of the matter. The relief that the respondent-company may get in respect of a particular year, it was contended, was not an effective and adequate relief, for in the next year the respondent-company has again to ask for refund and to prefer an appeal if the application for refund is rejected. The relief that the respondent-company may get in respect of a particular year, it was contended, was not an effective and adequate relief, for in the next year the respondent-company has again to ask for refund and to prefer an appeal if the application for refund is rejected. The contention thus urged on behalf of the respondent-company was upheld and it was observed that unless an alternative remedy can give full and effective relief to the aggrieved party, it will not stand in the way of his moving the High Court under article 226 of the Constitution. 12. Hence, upon a preponderance of judicial opinion, it is clear that although ordinarily a writ application under article 226 is not to be entertained where alternative remedy is available, yet in the special circumstances of the case where the alternative remedy available is not adequate and is a mere formality, it would be not in the interest of justice to drive the assessee to pursue the relief in all stages of the hierarchy contemplated by the statute before moving the High Court. In the instant case it is evident that the issues involved in this case do not relate to any disputed question of fact but to the jurisdiction of the authorities to levy the interest and penalty in the peculiar circumstance of the case. In such a situation we are of the opinion that the writ application is entertainable even though the applicant had preferred an appeal. It will bear repetition, Mr. Bajoria on behalf of the applicant undertook that the applicant shall not pursue the appeals. The High Court had, in fact, entertained the applications and it does not appear that any objection to that was taken as a preliminary point. After the matter has been thrashed out in full, we are not inclined to throw out the application on this ground alone. 13. As we have already indicated, the only two points urged before us relate to the imposition of penalty and charging of interest. With regard to the imposition of penalty the relevant portion of the impugned order indicates as if the penalty was imposed because the return filed by the dealer was found not to be a valid return. 13. As we have already indicated, the only two points urged before us relate to the imposition of penalty and charging of interest. With regard to the imposition of penalty the relevant portion of the impugned order indicates as if the penalty was imposed because the return filed by the dealer was found not to be a valid return. However, in view of the fact that the case was pending before the High Court and the court was pleased to pass the ultimate order on March 6, 1987, the assessing officer observed that the default of the dealer was for about 9 months only and considering that aspect he imposed upon the dealer a sum of Rs. 2 lakhs by way of penalty under section 11(1) of the BFST Act, 1941. 14. It was submitted on behalf of the applicant that at no stage there was any question of the applicant admitting any tax due and payable and whatever was payable, according to the applicant, was paid along with the return. It was further submitted that at the time when the returns for the impugned year were filed the notification dated April 1, 1975, stood quashed by the order of the learned single Judge of the Calcutta High Court and an appeal preferred by the respondents was pending before the Division Bench. In terms of the interim order, the applicant was allowed to file the returns claiming exemption under rule 3(28) of the Rules. It was, accordingly, contended that the assumption that the admitted tax was not paid is without foundation. It was then submitted that the omission or default for which the penalty was imposed was found to relate to the period of 9 months only after the judgment of the Division Bench was delivered on March 6, 1987. Whether tax was admittedly payable or required to be paid is to be considered with reference to the time when the returns were filed and at that time the applicant was not under any obligation to pay the tax in view of the interim order of the High Court although it was required to show the amount of tax payable under rule 3(28). 15. The penalty was imposed under section 11(1) of the BFST Act, 1941. 15. The penalty was imposed under section 11(1) of the BFST Act, 1941. The section in substance empowers the Commissioner if he is satisfied that default was made without reasonable cause, to direct that the dealer shall pay by way of penalty in addition to the amount of tax so assessed, a sum not exceeding one and a half times of that amount. It was further submitted by Mr. Bajoria that penalty can only be imposed for contumacious conduct or where there is wilful disregard of the statutory obligations. In support of this contention reliance was placed in the case of Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC); AIR 1970 SC 253 . There the question whether imposition of penalty for failure by a dealer to get itself registered in the honest and genuine belief that it was not a dealer, was in question. It was observed that the liability to pay penalty does not arise merely upon proof of default in registering as a dealer and penalty will not ordinarily be imposed unless the party either acted deliberately in defiance of law or was guilty of conduct - contumacious or dishonest - or acted in conscious disregard of its obligations. The penalty will not also be imposed merely because it is lawful to do so. In the instant case before us we have already indicated that at the time when the returns were filed for the impugned year, the notification which is the sheet-anchor of the respondents' case, stood quashed and an appeal therefrom was pending. The applicant had obtained an interim order to the effect that it is to submit the return with regard to the item, namely, woollen carpets, but would be entitled to claim exemption from payment thereof. In such a situation it cannot be said that the default, if any, was made without reasonable cause as contemplated by section 11(1) of the BFST Act. Even if there was any default, it was not an act of commission or omission made deliberately and in contumacious disregard of statutory obligations. In that view of the matter, we find that the order imposing penalty under section 11(1) of the BFST Act cannot be sustained. Mr. Even if there was any default, it was not an act of commission or omission made deliberately and in contumacious disregard of statutory obligations. In that view of the matter, we find that the order imposing penalty under section 11(1) of the BFST Act cannot be sustained. Mr. P. K. Chakraborty, appearing on behalf of the respondents, argued upon a reference to section 10 of the BFST Act that the returns contemplated by the said section, must be a true and proper return and not just one prepared casually without reflecting the correct turnover. In the instant case, it may be stated that the turnover was indicated but exemption was claimed on the authority of the interim order. It was then contended by Mr. Chakraborty that even if the applicant could not file a revised return after the judgment of the Division Bench was delivered in March, 1987, nothing prevented the applicant to make the deposit soon after the Division Bench judgment was delivered. The question of imposition of penalty had to be considered in the context of the returns filed and not in the context of the time when additional amounts became payable by virtue of the judgment of the Division Bench rendered long thereafter. Accordingly, we are unable to accept the contention of Mr. Chakraborty. The order imposing penalty under section 11(1) of the BFST Act has to be set aside. 16. The next point relates to the charging of interest and this is a point involving considerable difficulty. Before we come to consider the question it may be relevant to refer to the grounds for levy of interest as found by the assessing authority. It may be stated thus : As per revised statement in the form of return the dealer admits liability to pay tax on sales on woollen carpets. As the dealer himself has admitted his liability to pay sales tax on woollen carpets, the dealer is liable to pay interest at the rate of 2 per cent on the admitted sale of woollen carpets. It is submitted on behalf of the applicant that it had not, in fact, filed any revised return admitting liability to pay tax for the sale of woollen carpets. It is submitted on behalf of the applicant that it had not, in fact, filed any revised return admitting liability to pay tax for the sale of woollen carpets. There is a provision in sub-section (4) of section 10 of the BFST Act, 1941, enabling a dealer to furnish a revised return if the dealer discovers any omission or other error in any return furnished by him. But sub-section (4) of section 10 prescribes a time-limit for furnishing such return. It has to be filed before the date "prescribed for furnishing of the next return". In the instant case the returns were furnished long ago. In the course of assessments, it is stated by the applicant, that the assessing authority required the applicant to submit a statement showing the break-up of sales and it is complained that such statement was treated as a revised return. The liability to pay interest as provided in section 10A, was introduced with effect from October 1, 1983. Under sub-section (1) the liability accrues if the dealer furnishes a return referred to in section 10 but fails to make full payment of tax in respect of such period at such prescribed rate upon so much of the amount of tax payable by him according to such return as remains unpaid at the commencement of each month referred to in the sub-section. Sub-section (2) contemplates a situation where a dealer fails to furnish a return and thereby incurs the liability for payment of interest. The question before us is whether the applicant could be said to have incurred the liability for payment of interest under sub-section (1) or sub-section (2). According to the applicant it had filed its returns between March, 1983 and January, 1984 and payments were made in accordance with the returns. In the returns sales of the disputed goods were shown but exemption from payment of tax thereon was claimed in terms of the interim order issued by the High Court. Therefore, it was argued that it was not a case where there was failure to pay any admitted tax due under the return nor is there any case of non-furnishing of return. Consequently, it was argued that interest could not be levied either with the aid of sub-section (1) of section 10A or with the aid of sub-section (2) thereof. 17. As against this Mr. Consequently, it was argued that interest could not be levied either with the aid of sub-section (1) of section 10A or with the aid of sub-section (2) thereof. 17. As against this Mr. P. K. Chakraborty, learned State Representative, placed reliance on a decision of this Tribunal in the case of Kingsway & Co. reported in [1990] 76 STC 119. In that case it was observed that the expression "return" as used in section 10A(1) of the BFST Act had to be interpreted to cover a return which is full and complete in all respects. Whether the department could in view of the injunction obtained by the petitioners, demand and collect any tax during the pendency of the injunction, it was held, was a different matter but that the injunction could not prevent the petitioners from furnishing returns in respect of their taxable turnover and then claiming exemption from payment in view of the interim order. That was not done in the case of Kingsway & Co. [1990] 76 STC 119 (WBTT). But, in the instant case, that has exactly been done by the applicant in compliance with the order of the interim injunction passed by the High Court. The plea of the department is that the applicant filed a revised return in the course of assessment proceedings which indicated that a considerable sum had not been paid according to the return. The grievance of Mr. Bajoria is that the applicant did not, in fact, file any revised return and he could not lawfully file any such return at the time when the assessments were made in view of the time-limit prescribed by sub-section (4) of section 10 of the BFST Act. The assessing authority, it seems, was conscious of this legal position. He had called upon the applicant to submit a statement showing the break-up of sales which the applicant did and the assessing officer treated that statement as a revised return. This certainly he was not entitled to do. Mr. Bajoria in support of his contention referred to the decision of Maya Debi Bansal v. Commissioner of Income-tax, West Bengal reported in [1979] 117 ITR 125 (Cal). In that case the question involved was where a return is submitted in a wrong form, can assessment be treated as a best judgment assessment as if no return has been filed. Mr. Bajoria in support of his contention referred to the decision of Maya Debi Bansal v. Commissioner of Income-tax, West Bengal reported in [1979] 117 ITR 125 (Cal). In that case the question involved was where a return is submitted in a wrong form, can assessment be treated as a best judgment assessment as if no return has been filed. It is difficult to apply the facts of that case and the ratio of that decision to the facts of the case before us. The next case relied on by Mr. Bajoria is the decision of the Punjab and Haryana High Court in the case of Commissioner of Income-tax v. Dr. Krishan Lal Goyal reported in [1984] 148 ITR 283. The facts of that case and the points involved are different from the facts of the case before us and necessarily the ratio of the decision cannot be applied to the case of the applicant. But we are in agreement with Mr. Bajoria that the statement furnished by the applicant showing the break-up of sales in the form of the return, cannot be treated as a revised return in view of the provisions of section 10(4) of the BFST Act. It could not be treated as a revised return because it was not filed within the time prescribed by the said section nor was it filed after discovery of any omission or other error in the return. Mr. Bajoria took us through the various provisions for submission of revised returns under the Sales Tax Acts of different States. It appears that in some States there is provision for submission of revised return at any time before the date prescribed for furnishing of the next return as in the BFST Act, 1941, but in some States there is provision for furnishing revised return at any time before the assessment is made on the original return. We do not think it necessary to make a comparative study of the provisions in this regard relating to the time for submission of revised returns. There is no ambiguity in the language used in section 10(4) of the BFST Act. It is clear that under that section a revised return could be filed only when any error or omission is discovered and that too before the date prescribed for furnishing of the next return. There is no ambiguity in the language used in section 10(4) of the BFST Act. It is clear that under that section a revised return could be filed only when any error or omission is discovered and that too before the date prescribed for furnishing of the next return. That date having long expired, any statement obtained from the applicant could not be treated as a revised return. Further, it cannot be found in respect of the submission of such statement that taxes were not paid according to the return initially filed far less that no return was filed. 18. Although Mr. Bajoria in support of his contention relied on a part of the observations made by this Tribunal in the case of Kingsway & Co. [1990] 76 STC 119, however, submitted that the case of Associated Cement Co. Ltd. reported in [1981] 48 STC 466 (SC), which was referred to in the case of Kingsway & Co. [1990] 76 STC 119 (WBTT) was not correctly decided and that the decision has already been referred to a larger Bench by the Supreme Court for reconsideration. In support of the contention that such a reference has been made our attention was drawn to page 5 of the Section, "From our Reporter at the Supreme Court" of 66 STC. In the case of Kingsway & Co. [1990] 76 STC 119, this Tribunal had observed that the applicant could not, while furnishing the return, leave any part of the return blank but that the applicant could furnish the return of the entire taxable turnover and then claim exemption from payment of the tax in view of the interim order of injunction. It is submitted that, that has exactly been done in this case and, therefore, on the authority of the decision rendered in the case of Kingsway & Co. [1990] 76 STC 119 (WBTT) there is no question of charging interest under section 10A of the BFST Act. Mr. Bajoria also referred to the case of Annapurna Biscuit Manufacturing Co. v. State of Uttar Pradesh reported in [1982] 50 STC 56 (All.), Capital Packers v. Commissioner of Sales Tax reported in [1989] 75 STC 42 (All.) and Haji Lal Mohd. Mr. Bajoria also referred to the case of Annapurna Biscuit Manufacturing Co. v. State of Uttar Pradesh reported in [1982] 50 STC 56 (All.), Capital Packers v. Commissioner of Sales Tax reported in [1989] 75 STC 42 (All.) and Haji Lal Mohd. Biri Works v. State of U.P. [1973] 32 STC 496 (SC) in support of his contention that where a dealer calculated the tax in consonance with the decision of the concerned authority or the court, which at the time of making the calculation held the field, it could not be said that the tax payable was calculated wrongly and the subsequent change of view would not fasten any liability for interest on the assessee. Mr. P. K. Chakraborty appearing for the respondents, in support of his contention that interest was chargeable in the facts of the case, referred to several decisions of different High Courts, namely. Associated Cement Co. Ltd. v. Commercial Tax Officer [1981] 48 STC 466 (SC), Haji Lal Mohd. Biri Works v. State of U.P. reported in [1973] 32 STC 496 (SC), Hajee Mohammed Meera Sahib and Sons v. Assistant Commissioner of Sales Tax reported in [1980] 46 STC 134 (Ker), Bir Sein Anand v. State of Jammu and Kashmir reported in [1983] 54 STC 354 (J& K), Padma Oil Company v. State of Andhra Pradesh reported in [1983] 54 STC 364 (AP) and East India Hotels Ltd. v. State reported in [1988] 70 STC 10 (J & K). It is held in these cases that when a writ petition is dismissed, interest on arrears of sales tax could be realised for the period during which the recovery of sales tax was stayed by the court. 19. The facts of the case clearly indicate that the applicant while submitting the return, indicated the tax but claimed exemption in view of the stay order permitting the applicant to file its returns and pay tax in the said manner. It is also significant to note that at the time when the returns were submitted, the decision of the trial Judge quashing the notification held the field. It is not a case where it can be said that the applicant did not submit a correct return or that the applicant failed to submit a return. In the case of Kingsway & Co. It is not a case where it can be said that the applicant did not submit a correct return or that the applicant failed to submit a return. In the case of Kingsway & Co. [1990] 76 STC 119 (WBTT), it was found on fact that the applicants in that group of cases had not submitted any return with regard to turnover tax. Therefore, it was held that the return was incomplete and the statement made according to that incomplete return could not exonerate the applicants of those cases from the liability to pay interest under section 10A(1). It was also held in that case that since the return did not indicate the turnover tax, there was strictly no return so to say with regard to the liability for turnover tax and consequently sub-section (2) also was found to be applicable in those cases. In the present case, however, the facts are different in the sense that the returns submitted by the applicant could not be said to be incomplete far less that there was no return. It is true that it had not paid the tax as per the return but it did so under the authority of the interim order passed by the High Court which permitted the applicant to submit its return in that manner and then claim exemption from the payment of tax. In such a situation even though the ultimate decision by the Division Bench went partly against the applicant, it would be iniquitous to call upon it to pay interest for the amount which it was authorised by the order of the court not to pay till disposal of the matter. To this extent the facts of this case are different from the facts in the case of Kingsway & Co. [1990] 76 STC 119 (WBTT). While it may be theoretically correct that when a writ petition is dismissed, interest on arrears becomes payable since there is nothing which prevents the running of interest merely because of the operation of the stay order. But in the fact situation of the case, we feel that the charging of interest was unjust. The grounds for levy of the interest as found by the assessing authority is that the dealer admitted liability to pay tax on sale of woollen carpets as per revised statement in the form of return. But in the fact situation of the case, we feel that the charging of interest was unjust. The grounds for levy of the interest as found by the assessing authority is that the dealer admitted liability to pay tax on sale of woollen carpets as per revised statement in the form of return. We have already stated that there was no question of submission of any revised return because the time for doing so had already expired and there was no occasion for submission of a revised return on the discovery of any omission or other error in the return initially filed. Therefore, the very foundation of the order, namely, that the dealer had admitted his liability to pay sales tax on sales of woollen carpets as per the revised return, is unfounded. The levy of interest can be made only under the provisions of section 10A. Since we have found in this case that neither sub-section (1) nor sub-section (2) is attracted, there is no question of levy of interest under those sub-sections. Sub-section (3) of section 10A contemplates a case where a dealer fails to make payment of any tax payable after the assessment by the date specified in the notice issued under sub-section (3) of section 11. The interest has not been levied under sub-section (3). It has been levied in course of the assessment and not because of failure to make payment of tax payable after assessment. Consequently, we find that this is a case where the imposition of penalty or the charging of interest cannot be justified in the facts and circumstances of the case. The case is accordingly, liable to succeed. We make it clear that our finding is confined to the demands for interest and penalty relating to the assessment under the BFST Act, 1941 only. We refrain from making any observations with regard to the demands on those accounts under the Central Sales Tax Act, 1956. 20. The case, therefore, succeeds in part in so far as it relates to the BFST Act, 1941. The claim of the applicant relating to interest and penalty under the Central Sales Tax Act, 1956, may be pursued by them before the appropriate forum. The case, accordingly, is allowed in part. Parties to bear their own costs. P. C. BANERJI (Technical Member). - I agree. L. N. RAY (Judicial Member). - I agree. Application partly allowed.