JUDGMENT V. D. GYANI, J. - By this petition under article 226 of the Constitution of India, the petitioner challenges the imposition of penalty under section 45-B of the M.P. General Sales Tax Act, 1958 (Act No. 2 of 1959) (for short "the Act"). 2. This petition relates to the assessment and levying of penalty under section 45-B for the period 1983-84 (July 1, 1983 to June 30, 1984) under the provisions of the M.P. General Sales Tax Act, 1958 (Act No. 2 of 1959). The petitioner was carrying on the wholesale business of selling hair-oils, tooth-powder and ayurvedic medicines, etc. The company was holding Registration No. Ind/1/XXIV/322 granted by the Sales Tax Officer, Circle-I, Indore, under the M.P. General Sales Tax Act. 3. The assessment and penalty order - annexure 1 was made by the Additional Assistant Commissioner of Sales Tax, Indore (respondent No. 5) by his order dated September 30, 1986. The respondent No. 5 levied a penalty of Rs. 65,000 under section 45-B of the Act. 4. The petitioner's case before the respondent No. 5, the Additional Assistant Commissioner of Sales Tax, was that he had appointed stockists and dealers who purchased the goods. It is a trade practice that incentive bonus is given at the close of the year on the basis of targets achieved by them. If some stockists or dealer achieve the target they get maximum incentive bonus. In case the purchases are below the target, the incentive bonus is less depending upon their periodical purchases. The respondent No. 5 allowed the incentive bonus and deduction from gross and taxable turnover amounting to Rs. 7,13,761 was given on the basis of list submitted before him at the time of assessment. The petitioner had deposited the amount of tax collected by him in the Government treasury. The total deposit amounted to Rs. 7,65,881.24 while the tax assessed was Rs. 7,19,577.04 resulting in a refund of Rs. 46,302.50 which was demanded by the petitioner but respondent No. 5 levied a penalty of Rs. 65,000 under section 45-B of the Act. 5. Against the above order the petitioner-company appealed to respondent No. 4. It was contended by the petitioner-company that the tax was charged in accordance with the provision of section 6 read with Schedule II of the Act at the time when the sales invoices were made. 65,000 under section 45-B of the Act. 5. Against the above order the petitioner-company appealed to respondent No. 4. It was contended by the petitioner-company that the tax was charged in accordance with the provision of section 6 read with Schedule II of the Act at the time when the sales invoices were made. Therefore, the petitioner had not committed any offence under section 45-B of the Act. Respondent No. 4, did not accept this contention. However, the penalty was reduced from Rs. 65,000 to Rs. 46,000 by respondent No. 4 by his order dated May 1, 1987, filed as annexure 2 to the petition. 6. Being aggrieved by this order the petitioner filed an appeal before the Board of Revenue, Gwalior (respondent No. 3). The petitioner has contended that he had collected tax in accordance with the provisions of the Act, and being a registered dealer was authorised to collect the tax. He did not contravene any provisions of the Act. 7. The crucial question that arises for consideration is whether the collection as made by the petitioner was in contravention of any of the provisions of the Act or Rules made thereunder, so as to attract the second clause of section 45-B of the Act. The Board has placed reliance on its own order dated April 28, 1986 in Appeal No. 129-IV-185. Shri Garg, learned counsel for the petitioner referred to 1986 C.T.S. 485, wherein the same Board has held as follows : "Whether the tax was collected unauthorisedly is a matter to be decided on the final conclusions and findings of the assessment; the legality of the tax collection cannot change from time to time depending upon how and to what extent the procedural requirements were met. To say that at one stage it appeared that tax was due and at a subsequent stage it was felt that it was not due would be a stand contrary to the scheme of the Act." Shri Garg invited attention to para 9 of the impugned order and submitted that no reason as such has been assigned. A mere reading of this para (quoted below) would show that the submission made by the learned counsel, has substance and force : "In the present case the appellant himself devised his 'target incentive scheme' and knew very well that at the end of the year turnover will be lower. A mere reading of this para (quoted below) would show that the submission made by the learned counsel, has substance and force : "In the present case the appellant himself devised his 'target incentive scheme' and knew very well that at the end of the year turnover will be lower. He could have, therefore, taken care that he does not fall into the 'over recovery' trap. In view of the above discussion there remains no case for not levying the penalty under section 45-B on him." 8. It is a well-settled principle of interpretation of taxing law, that the taxing statute must be strictly construed and it applies with greater force when penalty is sought to be imposed under the taxing statute. See [1961] 12 STC 182 (SC); AIR 1961 SC 1047 (Commissioner of Sales Tax v. Modi Sugar Mills Ltd.). The Supreme Court in C.S.T. v. M.G. Mills AIR 1979 SC 2434 (sic), held as follows : Equitable considerations in interpreting a taxing statute, are entirely out of place; nor can taxing statutes be interpreted on any presumptions or assumptions. (See [1961] 12 STC 182 (SC); AIR 1961 SC 1047 ) (Commissioner of Sales Tax v. Modi Sugar Mills Ltd.). 9. Section 45-B of the Act, reads as follows : "Section 45-B. Collection of tax by dealers. - (1) No person other than a registered dealer or a person who is deemed to be dealer who has failed to apply for registration under the provisions of clause (b) of sub-section (11) of section 15 or sub-section (7) of section 16-A shall collect any amount by way of tax under this Act and no collection of tax shall be made except in accordance with the provisions of this Act and the Rules made thereunder. (2) If any person collects any amount by way of tax in contravention of the provisions of sub-section (1), he shall be liable to pay a penalty not less than the amount so collected, but not exceeding double the amount of such tax." 10. Before I proceed to deal with the attractability of section 45-B, it would not be out of place to dispose of an objection raised by Shri Samvatsar, learned Government Advocate, who referring to a decision of this Court, as reported in Keveyan & Co. Before I proceed to deal with the attractability of section 45-B, it would not be out of place to dispose of an objection raised by Shri Samvatsar, learned Government Advocate, who referring to a decision of this Court, as reported in Keveyan & Co. v. G. S. Bagehal, Additional Assistant Commissioner of Sales Tax [1988] 68 STC 308, contended that the petition under article 226, should be dismissed as alternative remedy is available to the petitioner by way of reference. The case relied upon by the respondents turns on its own facts. There was material suppression on the part of the petitioner as can be gathered from para 9 of the order, as quoted below : "The petitioners have suppressed all these material facts in their petition and the petition deserves to be dismissed on that ground alone. .......... They have suppressed material facts in the petition that the enquiry had commenced prior to 22nd September, 1986. Therefore, this is not a fit case, in our opinion, for exercising the extraordinary powers of this Court under article 226 of the Constitution." 11. Such is not position obtaining in the instant case. It is not even the respondents' case that the petitioner has made any suppression. The case relied upon by the respondents does not help them. 12. The provision for levy of tax under the Act is made under section 6(1) of the Act, which reads as follows : "Section 6(1). Levy of tax. - (1) Subject to the provisions of sub-sections (2) and (3) the tax payable by a dealer under this Act shall be levied on the taxable turnover relating to goods specified in Schedule II at the rate mentioned in corresponding entry in column 3 of the said Schedule." 13. The petitioner, in para 7 of the petition, has made a specific averment to the effect that there was no dispute that the petitioner collected tax in accordance with the Schedule II. The respondents, in their reply to this averment, have contended in their return : "It is admitted that the petitioner had collected sales tax as per rate mentioned in Schedule II." They however qualified this admission by saying that "the collection exceeds the tax that is found ultimately payable by it". 14. The respondents, in their reply to this averment, have contended in their return : "It is admitted that the petitioner had collected sales tax as per rate mentioned in Schedule II." They however qualified this admission by saying that "the collection exceeds the tax that is found ultimately payable by it". 14. The Board also in para 9 of its order, as already quoted above, has observed that the petitioner had devised target incentive scheme and he ought to have known that at end of the year the turnover will be lower, and he should have therefore, taken care to see that he does not fall into the over recovery trap. 15. Having admitted the position that the collection made by the petitioner was in accordance with Schedule II it does not stand to reason as to how the petitioner could know the actual annual turnover before the end of the year. 16. The penalty provision incorporated in section 45-B, is attracted only where a registered dealer makes a collection by way of tax either not in accordance with conditions and restrictions, prescribed by the law, or in excess thereof. In face of the clear admission by the respondents that the collection made by the petitioner was in accordance with Schedule II, there is hardly any justification in imposing the penalty. 17. A similar provision came up for consideration before the Division Bench of the Mysore High Court in Hindustan Drug House v. State of Mysore [1970] 25 STC 182, and this is what the court said : "On a reading of sections 18 and 18-A, it is clear to our mind that the penalty provision of section 18-A is attracted only where a registered dealer makes collection of amounts by way of tax, or purporting to be by way of tax, either not in accordance with the conditions and restrictions prescribed or at the rate or rates in excess of that specified in respect of the sale or purchase of the goods; section 18-A is not attracted where section 18 is not contravened. Where on the individual transaction of sale or purchase, the dealer under section 18(1) collects amounts in excess of the rate or rates specified under the Act or, where he purports to collect amounts by way of tax, where there is no tax charged on the transaction under the Act, section 18(1) is contravened, which attracts the penalty provision of section 18-A. Where sub-section (1) of section 18 is not contravened, even though the aggregate amounts collected on all the transactions of the dealer during the accounting period exceed the tax chargeable on the total turnover of the dealer, there is no power to invoke the penalty provision." 18. Placing reliance on a decision of the Supreme Court, as reported in State of Madhya Pradesh v. Vyankatlal [1987] 64 STC 6, it was contended by the respondents that no refund should be allowed. The facts of the case relied upon are materially different. It was held that - "Under a notification issued by the Director of Civil Supplies under the Madhya Bharat Sugar Control Order, 1949, the respondents who were owners of certain sugar mills, had to deposit the difference between the supply price and ex-factory price of sugar produced by them. They had, however, collected the amount from the purchasers. The sum so deposited, was credited to the Madhya Bharat Government Sugar Fund to be utilised for augmenting production of sugarcane. The respondents filed a suit for refund of the amount deposited and interest claiming the levy of the difference to be illegal. The trial court dismissed the suit but on appeal the High Court held the levy to be illegal and decreed the suit for refund of the amount and interest. On appeal to the Supreme Court by the State." It was in this background that the Supreme Court held : "Held, that a mere declaration that levy was illegal did not automatically entitle the respondents to refund because the burden of paying the amount has been transferred by the respondents to the purchasers, therefore the respondents were not entitled to get the refund." The facts of the case at hand are plain and simple. Even while penalty imposed by the respondents that the petitioner's collection was in accordance with the Schedule and whether such a penalty can be maintained, that is a short question involved in this petition. 19. Even while penalty imposed by the respondents that the petitioner's collection was in accordance with the Schedule and whether such a penalty can be maintained, that is a short question involved in this petition. 19. What is to be seen is whether the petitioner made collection of tax in a manner except in accordance with the provisions of the Act and the Rules made thereunder ? In face of the admission made by the respondents, as noted above, there is absolutely no justification for imposition of the penalty, as done by the respondents. 20. For the foregoing reasons this petition deserves to be allowed; it is accordingly allowed with costs. Counsel's fee Rs. 1,000 (one thousand) if certified. Order annexures 3, 4 and 5 are quashed. The amount of penalty as imposed is set aside and be refunded to the petitioner. Petition allowed.