JUDGMENT N. K. JAIN, J. - These two revision petitions are directed against the common judgment dated June 29, 1989 passed by the Sales Tax Tribunal, Ajmer, whereby the learned Member of the Rajasthan Sales Tax Tribunal accepted both the appeals of the assessee and set aside the penalty of Rs. 1,823.80 and Rs. 2,610 imposed under section 7AA of the Rajasthan Sales Tax Act, 1954, for the assessment years 1979-80 and 1981-82. The following questions of law arise out of the said order of the Rajasthan Sales Tax Tribunal : 1. Whether in the facts and circumstances of the case the Tribunal was justified in allowing the appeals of the assessee by holding that no rectification was permissible. 2. Whether in the facts and circumstances of the case the levy of penalty is sustainable under section 7AA even without recourse to section 17 of the Rajasthan Sales Tax Act. The brief facts giving rise to these revisions are as under : The non-petitioner is a registered dealer under the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act"). The assessee filed returns for the assessment years 1979-80 and 1981-82 beyond the prescribed time. The assessment orders were made on July 30, 1983 and October 29, 1983 respectively. A notice under section 7AA in the form of S.T. 12 was issued to the assessee for the respective assessment years, as the assessee failed to file returns in time, calling upon him to show cause as to why the penalty be not levied against him, and after hearing two separate orders on May 7, 1985, were passed by the assessing authority and imposed the penalty of Rs. 1,823.80 and Rs. 2,610 for the respective assessment period. The assessee preferred an appeal before the Deputy Commissioner (Appeals) I, Udaipur, who vide his order dated December 18, 1985, dismissed the appeal. It was held that mere mentioning of section 17 in the order does not make the assessment order illegal as the action was taken under section 7AA only and it was held that the penalty was rightly imposed under section 7AA for late filing of the returns. The Deputy Commissioner (Appeals) I, Udaipur, was also of the view that the assessment order also falls within the purview of section 17 of the Act. The Deputy Commissioner (Appeals) I, Udaipur, was also of the view that the assessment order also falls within the purview of section 17 of the Act. The assessee feeling aggrieved, preferred two separate appeals before the Rajasthan Sales Tax Tribunal, Ajmer, the Tribunal held that the provisions of section 17 were not available to the assessing authority for imposing penalty and consequently notice issued under section 7AA in the form of S.T. 12 cannot be construed under section 17 and further held that the levy of penalty under section 7AA is being discriminatory. The appeals were allowed vide common order dated June 29, 1989. Hence, the department has come up in the revisions. The learned counsel for the department Shri Rajesh Balia, contended that there is a provision to impose penalty for late filing of return and penalty has been imposed under section 7AA and mere mentioning of wrong section, i.e., section 17 in the assessment order, does not make the assessment order illegal. He further contended that in view of the provisions of section 19A the department is entitled to get benefit and order shall not be quashed for want of any form, or mistake, defect or omission therein, and thus, the Tribunal is wrong in accepting the appeals. Mr. Kothari, learned counsel for the assessee contended that rectification can be made only for error apparent from the assessment order and it prohibits imposing of penalty. He further submitted that the imposing of the penalty is not mandatory and not necessarily be imposed, even if, it is lawful to do so and as such the discretion exercised by the Tribunal could not be interfered in the revision. The learned counsel for the assessee has also submitted that after considering the record, the Tribunal has rightly set aside the findings of the assessing authority while imposing penalty on the ground that the explanation is not satisfactory. I have considered thoroughly the arguments advanced by both the learned counsel for the parties and have gone through the relevant provisions of law and the judgments. The facts and the proposition of law have not been disputed in this case, so far as it relates to the imposing of the penalty under section 7AA of the Act for late filing of the returns. The facts and the proposition of law have not been disputed in this case, so far as it relates to the imposing of the penalty under section 7AA of the Act for late filing of the returns. I am of the opinion that the order is according to provisions of the Act, i.e., section 7AA but mere mentioning of wrong provisions of law as source of power, i.e., section 17, cannot vitiate the order which is otherwise in accordance with the provisions of the Act. Admittedly, the returns were not filed in time and there is provision to impose penalty for late filing of the returns. The legislator has also specifically made it clear, that no order passed under the Act will be defeated merely for want of form or be affected by reason of a mistake, defect or omission therein and for that section 19A has been added, and therefore, looking to the peculiar facts of the case, the Tribunal is wrong in accepting the appeals even when no prejudice has been shown by the assessee. The contention with regard to showing sufficient reasons for not filing returns in time, the Tribunal has not given any finding on this aspect. The assessee has also stated that the assessing authorities have not stated any reasons regarding his explanation, therefore, it will be deemed to have been decided in favour of assessee. The question is whether assessee has shown sufficient cause or not for not filing the returns in time. The assessee was wrong in presuming that the explanation given by him is sufficient and wrongly assumed that it will be deemed that explanation regarding sufficient cause shown has been decided in his favour but looking to the facts the Tribunal has not considered and has not given any finding on this issue. On the above facts and without explanation, it could not be said that the discretion with regard to imposing of the penalty has been exercised. The question whether the findings of the assessing authority below with regard to levy of penalty is sustainable on the material on record should be decided by the Tribunal only, as a fact - finding authority, after considering sufficient cause. The question whether the findings of the assessing authority below with regard to levy of penalty is sustainable on the material on record should be decided by the Tribunal only, as a fact - finding authority, after considering sufficient cause. Under the facts of this case and in view of section 19A, penalty is sustainable under section 7AA of the Act even without recourse to section 17 of the Rajasthan Sales Tax Act is answered in favour of the department, but it will not prejudice the assessee's case on merits on remand. It is, therefore, appropriate that the case be remanded back to the Tribunal to decide afresh. The Tribunal after giving proper opportunity to the assessee, will decide whether mere was any reasonable or sufficient cause existed or not for filing return after prescribed period. In the light of the above observations, both the cases are sent back by this common order to the Tribunal to decide the cases afresh. These revisions are partly allowed with no order as to costs. Petitions partly allowed.