JUDGMENT B. P. Saraf, J. By this reference under section 61(1) of the Bombay Sales Tax Act, 1959, made at the instance of the Revenue, the Maharashtra Sales Tax Tribunal has referred the following questions of law to this Court for opinion : "1. Whether, on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the assessment of the respondent - dealer, who had filed all the returns late, i.e., beyond the prescribed time, could only be made under section 33(5) of the Act ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal erred in holding that the case of the respondent - dealer is not covered by the mischief of Explanation (I) to section 36(2)(c) ? 3. When, admittedly, all the returns were not filed within the prescribed time, whether the Tribunal erred in law in not considering the alternative prayer of the department for converting the penalty imposed under section 36(2)(c) Explanation (I) to penalty under section 36(2)(c) Explanation (II) of the Bombay Sales Tax Act, 1959 ?" The facts of the case relevant for determination of the controversy in this case are as follows : The assessee, M/s. Malbar Products, is a dealer registered under the Bombay Sales Tax Act, 1959 ("the Act") and carries on the business of manufacture, sale and supply of desiccated coconuts. This reference pertains to the period November 12, 1977 to October 31, 1978. The assessee did not submit his returns for this period within the prescribed time. They were filed belatedly. The return for the quarter ending February 7, 1978, was furnished on March 17, 1978, for the quarter ending May 6, 1978 on June 16, 1978, for the quarter ending August 31, 1978 on September 14, 1978 and for the quarter ending October 31, 1978 on January 6, 1979. All these returns were accepted and taken on record by the Sales Tax Officer. On January 9, 1981, after two years of the furnishing of the above returns, the Sales Tax Officer issued a notice to the assessee in Form 27 requiring him to produce evidence in support of his returns. All these returns were accepted and taken on record by the Sales Tax Officer. On January 9, 1981, after two years of the furnishing of the above returns, the Sales Tax Officer issued a notice to the assessee in Form 27 requiring him to produce evidence in support of his returns. In the above notice, it was also stated that all the four returns filed by the assessee were filed late and the assessee was asked to show cause why penalty should not be imposed under section 36(3) of the Act. In response to the above notice, the assessee appeared before the Sales Tax Officer and produced his books of account and documents as evidence in support of his returns. After considering the same, the Sales Tax Officer assessed the amount of tax due from the assessee. The amount of tax assessed including the Additional Tax worked out at Rs. 50,448 as against Rs. 23,789 paid by the assessee as per returns. A penalty of Rs. 390 was also levied under section 36(3) of the Act for failure to pay the taxes within time. The Sales Tax Officer also initiated proceedings for levy of penalty under section 36(2)(c) of the Act for concealment of turnover and furnishing of inaccurate particulars of taxable turnover. As the total amount of tax paid by the assessee was found to be less than eighty per cent of the amount of tax assessed, the Sales Tax Officer issued notice to the assessee to show cause why penalty should not be levied under section 36(2)(c) read with Explanation (I) thereto and after hearing the assessee, levied a sum of Rs. 16,000 as penalty under section 36(2)(c) of the Act read with Explanation (1) thereto. The assessee appealed to the Assistant Commissioner of Sales Tax (Appeals), Nagpur Division, Nagpur. Though in the appeal, the assessee had challenged the order of assessment also, at the time of hearing, the challenge was restricted to the levy of penalty of Rs. 16,000 under section 36(2)(c). The Assistant Commissioner of Sales Tax (Appeals) did not find any infirmity in the imposition of penalty by the Sales Tax Officer under section 36(2)(c) read with Explanation (1) thereto. However, on consideration of the facts of the case, he reduced the quantum of the penalty from Rs. 16,000 to Rs. 11,500. 16,000 under section 36(2)(c). The Assistant Commissioner of Sales Tax (Appeals) did not find any infirmity in the imposition of penalty by the Sales Tax Officer under section 36(2)(c) read with Explanation (1) thereto. However, on consideration of the facts of the case, he reduced the quantum of the penalty from Rs. 16,000 to Rs. 11,500. The assessee went in appeal against the above order of the Assistant Commissioner to the Maharashtra Sales Tax Tribunal ("the Tribunal"). The case of the assessee before the Tribunal was that Explanation (I) to section 36(2) was not attracted as the returns had not been furnished by him within the prescribed time. The contention of the assessee was that returns having been filed beyond the prescribed date, assessment could be made only under sub-section (5) of section 33 of the Act and not under sub-section (3) or (4) thereof. It was contended by the assessee that Explanation (I) to section 36(2)(c) would be applicable only to cases where assessment had been made under sub-section (3) or sub-section (4) of section 33 of the Act. The case of the assessee before the Tribunal was that in the instant case, as the returns had admittedly been furnished beyond the prescribed date, the assessment made by the Sales Tax Officer was in effect an assessment under sub-section (5) of section 33 of the Act and Explanation (I) to section 36(2)(c) did not apply to such assessment. According to the assessee, the deeming provision contained in Explanation (I) to section 36(2)(c) was applicable only to an assessee who had submitted his returns within the prescribed dale and not to those who failed to do so. The Tribunal accepted the above contention of the assessee and held that the assessment of a dealer who had filed his return late or did not file the return at all, would be an assessment under sub-section (5) of section 33 which did not fall under Explanation (I) to section 36(2)(c). The Tribunal, therefore, held that the penalty levied by the Sales Tax Officer with the aid of Explanation (I) could not be sustained. The Tribunal, therefore, held that the penalty levied by the Sales Tax Officer with the aid of Explanation (I) could not be sustained. In view of the above findings of the Tribunal, it was contended by the Revenue before the Tribunal that if Explanation (I) was held not to be applicable, the deeming provision contained in Explanation (2) would be applicable and the penalty should be confirmed on the basis of the deeming provision contained therein, as the assessee had failed to refute the presumption of concealment by adducing necessary evidence or material to the contrary. The Tribunal did not consider this contention of the Revenue, as according to it, acceptance of the same would require reopening of the case and passing of a fresh order after giving opportunity to the assessee of refuting the presumption of deemed concealment. According to the Tribunal, it was not possible to do so at the stage of Second Appeal before it. Hence the above contention of the Revenue was also rejected. Consequently, the Tribunal set aside the penalty. Hence this reference at the instance of the Revenue. The first question that arises for consideration is whether the assessment of a dealer who had filed his returns late, i.e., beyond the prescribed date, has to be made under sub-section (3) or sub-section (4) of section 33 of the Act or a best judgment assessment can be made in such a case under sub-section (5) thereof. The answer to this question will depend upon a proper construction of section 33 of the Act in the light of the provisions of section 32 and the relevant rules framed thereunder. Section 32 deals with returns. Sub-section (1) of section 32 requires every registered dealer to furnish returns for such period, by such dates, and to such authority, as may be prescribed. Rule 22 of the Rules prescribes the periods for which returns are to be furnished, the authority to whom it is to be furnished and the dale by which it should be furnished. In the instant case, the assessee was required to furnish the returns quarterly to the Sales Tax Officer "on or before the last day of the month immediately succeeding". Section 33 of the Act deals with assessment of tax. This section, so far as relevant, as it stood at the material time, read as follows : "33. In the instant case, the assessee was required to furnish the returns quarterly to the Sales Tax Officer "on or before the last day of the month immediately succeeding". Section 33 of the Act deals with assessment of tax. This section, so far as relevant, as it stood at the material time, read as follows : "33. Assessment of taxes - The amount of tax due from a dealer liable to pay tax shall be assessed separately for each year during which he is so liable : Provided that, the Commissioner may, subject to such conditions as may be prescribed, and for reasons to be recorded in writing, assess the tax due from any dealer during a part of a year : Provided further that, when a registered dealer fails to furnish any return relating to any period of any year, by the prescribed date, the Commissioner may, if he thinks fit, assess the tax due from such dealer separately for different parts of such year. (2) If the Commissioner is satisfied that the returns furnished by a registered dealer in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns. (3) If the Commissioner is not satisfied that the returns furnished by a registered dealer in respect of any period are correct and complete, and he thinks it necessary to require the presence of the dealer or the production of further evidence, he shall serve on such dealer in the prescribed manner a notice requiring him on a date and at a place specified therein, either to attend and produce or cause to be produced all evidence on which such dealer relies in support of his return or to produce such evidence as is specified in the notice. On the date specified in the notice, or as soon as may be thereafter the Commissioner shall, after considering all the evidence which may be produced, assess the amount of tax due from the dealer. (4) If a registered dealer fails to comply with the terms of any notice issued under sub-section (3), the Commissioner shall assess, to the best of his judgment, the amount of tax due from him. (4) If a registered dealer fails to comply with the terms of any notice issued under sub-section (3), the Commissioner shall assess, to the best of his judgment, the amount of tax due from him. (5) If a registered dealer does not furnish returns in respect of any period by the prescribed date, the Commissioner shall, at any time within eight years from the end of the year in which such period occurs, after giving dealer a reasonable opportunity of being heard, proceed to assess, to the best of his judgment, the amount of tax (if any) due from him. (7) Any assessment made under this section shall be without prejudice to any penalty, or prosecution for an offence, under this Act." It is clear from a plain reading of the above section that assessments can be made : (i) on the basis of the return [sub-section (2)]; (ii) on the basis of the evidence produced in support of the return [sub-section (3)]; (iii) to the best of the judgment of the Assessing Officer, in the event of failure of the assessee to produce evidence in support of the return in compliance notice issued under sub-section (3) [sub-section (4)]; and (iv) to the best of the judgment of the Assessing Officer, in case of failure of the registered dealer to furnish the return of any period by the prescribed date [sub-section (5)]. An assessment under sub-section (2) or sub-section (3), as also best judgment assessment under sub-section (4), presupposes the existence on record of valid returns for the period of assessment. Once returns are filed and taken on record by the Assessing Authority, assessment has to be under any of these three sub-sections. Resort can be had to sub-section (5) only in a case where no return for any period has been filed at all. In such a case, after the prescribed date, proceedings for assessment can be initiated under sub-section (5) and a best judgment made after giving an opportunity of hearing to the dealer concerned. Assessment cannot be made under sub-section (5) in disregard to a return filed by the assessee even beyond the prescribed date, because a return submitted beyond the prescribed date does not cease to be a valid return under section 32 read with rule 22 of the Rules. Assessment cannot be made under sub-section (5) in disregard to a return filed by the assessee even beyond the prescribed date, because a return submitted beyond the prescribed date does not cease to be a valid return under section 32 read with rule 22 of the Rules. Section 32(1) of the Act merely requires every registered dealer to furnish the return within the prescribed time. Failure to do so is visited with penal consequences. In fact, under section 63(1)(c) of the Act as it stood lat the material time, failure without sufficient cause to furnish any return as required by section 32, by the dale and in the manner prescribed, is an offence punishable with simple imprisonment and fine. This also shows that return can be filed even after the prescribed time. Moreover, there is no prohibition in section 32 of the Act or rule 22 of the Rules against filing of returns after the prescribed date. Hence, returns filed after the expiry of the prescribed date have also to be considered by the assessing authorities as valid returns while making assessment under section 33 of the Act and, depending upon the facts of the case, assessment has to be made under either of the three sub-sections, viz., sub-sections (2), (3) and (4). No assessment can be made under sub-section (S) in such a case. Resort to sub-section (15) would be necessary only where no return for any period is furnished within the prescribed date. The expression "prescribed date" in sub-section (15) has to be read and understood in the context of the scheme of assessment under section 33 and the various sub-sections thereof. It has to be given a harmonious construction. So construed, it merely implies that power under this sub-section can be exercised after the expiry of the prescribed date of filing of returns. If no such return is found to have been filed by that date, the Commissioner may proceed to assess the dealer to the best of his judgment, after giving the dealer an opportunity of being heard. This, however, cannot be done, if in the meantime, the dealer files the return, though belatedly, before a best judgment assessment is made under sub-section (5). This, however, cannot be done, if in the meantime, the dealer files the return, though belatedly, before a best judgment assessment is made under sub-section (5). In such a case, the return will have to be accepted and taken on record and assessment will have to be made under sub-section (2) or sub-section (3) or sub-section (4) of section 33, as the case may be. This conclusion is in consonance with the applicability of Explanation (I) of section 36(2)(c) of the Act to assessments under sub-sections (3) and (4) only and not to assessments under sub-sections (2) and (5). Because, in an assessment under sub-section (2), the return having been accepted as correct and complete, section 36(2)(c) itself would have no application and hence reference of this sub-section in Explanation (I) would have been redundant. Sub-section (5) could not have been mentioned in Explanation (I) because the assessment under that sub-section having been made on the failure of the assessee to furnish the return and pay the tax, question of difference between the tax paid and tax assessed would not arise. In fact, the Legislature has made a clear distinction for the purpose of deemed concealment between dealers who have submitted their returns and paid taxes due as per the returns and assessees who have without sufficient cause failed to do so, and has made much stringent provision in Explanation (2) for the assessees falling in the latter category. In their case, the whole of their turnover is deemed to have been concealed and the onus has been shifted on them to prove the contrary. This is clear from the scheme of section 36(2)(c) of the Act which, at the material time, read as follows : "36. Imposition of penalty in certain cases and bar to prosecution. - (1) ........... This is clear from the scheme of section 36(2)(c) of the Act which, at the material time, read as follows : "36. Imposition of penalty in certain cases and bar to prosecution. - (1) ........... (2) If while assessing or re-assessing the amount of tax due from a dealer under any provisions of this Act or while passing any order in any appeal or revision proceedings, it appears to the Commissioner that such dealer - (c) has concealed the particulars of any transactions or knowingly furnished inaccurate particulars of any transaction liable to tax; the Commissioner may, after giving the dealer an opportunity of being heard, by order in writing, impose upon the dealer by way of penalty, in addition to tax assessed or reassessed or found due in the appeal or revision proceedings be case may be, a sum not exceeding one and one-half times the amount of tax. Explanation. - (1) Where a dealer furnishing returns has been assessed by Commissioner under sub-section (3) or (4) of section 33, or assessed under section (3) of section 41, or reassessed under clause (b) of sub-section (1) section 35, or in whose case an order has been passed under section 55 or clause (a) of sub-section (1) of section 57, and the total amount of tax paid by dealer for any year is found to be less than eighty per cent of the amount 106 tax as so assessed or reassessed or found due in appeal or revision, then, for purpose of clause (c) he shall be deemed to have concealed the turnover, knowingly furnished inaccurate turnover liable to tax, unless he proves to the satisfaction of the Commissioner that the payment of a lesser amount of tax was due to gross or wilful neglect on his part. (2) Where a dealer fails without sufficient cause to furnish returns in respect any period by the prescribed date, then, for the purpose of clause (c), he shall be deemed until the contrary is proved to have concealed the whole turnover liable tax as assessed or reassessed or determined in an order passed under section 55 clause (a) of sub-section (1) of section 57." On a conjoint reading of section 32, sub-sections (2), (3), (4) and (5) section 33, section 36(2)(c) and Explanations (1) and (2) thereto, it is clear that all assessments made on consideration of the returns, whether furnished within the prescribed time or belatedly, and the evidence produced in support thereof, would be assessments under sub-section (3) of section 33 of the Act and not under [sub-section (5)] thereof. In such a case, even a best judgment assessment made the failure of the assessee to produce evidence in support of his return in compliance with notice under sub-section (3) of section 33 would be an assessment under sub-section (4) and not under sub-section (5). We are supported in our above conclusion by the decision of a Division Bench of this Court in Kisanlal Rajmal v. State of Maharashtra [1980] 45 STC 88, here Madon, J., (as His Lordship then was), speaking for the Bench, said in no less clear terms : "Though the Rules made under the said Act prescribe the time within which returns are to be filed, there is no prohibition in the said Act against filing returns after the prescribed date has expired. On the contrary, section 63(1)(c), which makes it an offence for a dealer failing 'without sufficient cause to furnish any return as required by section 32, by the date and in the manner prescribed' would show that returns can be filed after the expiry of the prescribed date." It was accordingly held that, "If, before the Sales Tax Officer came to pass the ex parte order of assessment, the applicants had submitted the returns and these returns were accepted and taken on the record, it was not right for the Sales Tax Officer to ignore the returns and to seek to assess the applicants as if no returns had been filed. The position in law is clear and obvious and no authority is required in support of it." In the above decision, this Court also referred with approval the decision of the Madras High Court in Bata Shoe Company Private Limited v. Joint Commercial Tax Officer [1968] 21 STC 135. That is a case under the Madras General Sales Tax Act, 1959 ("the Madras Act"). Section 12 of the Madras Act was similar to section 33(5) of the Bombay Act. With reference to section 12 of that Act, the Madras High Court observed that there is no provision in the Madras General Sales Tax Act, 1959, which forbids the filing of the returns after the prescribed time, or which forbids returns filed belatedly being considered by the assessing officer in the assessment proceedings. It was held that "the whole object of sub-section (2) is to provide for two contingencies : (1) Where a return has not been filed within the prescribed time and (2) where one is filed and it is in the opinion of the assessing officer incorrect or incomplete. In either of these cases the jurisdiction of the of officer to assess by best judgment does certainly arise. But this does not mean that where before an assessment order is made a return is filed, though belatedly, the assessing officer is at liberty to ignore it and still apply his best judgment. Such a procedure will be wholly unrealistic and unrelated to the task of finding out the true net chargeable turnover which is the object of section 12. Though the jurisdiction to assess by best judgment may arise in the event of an assessee failing to file his return within the prescribed time, nevertheless, the return filed belatedly is bound to be considered by the assessing officer in making the assessment. It necessarily follows from this proposition that he has to look into the return and if he feels that it is incomplete or incorrect, he has to follow the procedure prescribed by the proviso to sub-section (2) and give an opportunity to the assessee to prove the completeness or correctness of the return. Where a true and complete return is filed, though out of time, we do not think that the Act compels the assessing officer to ignore it, indulge in imagination and arrive at something which is not related to facts as shown by the return". Where a true and complete return is filed, though out of time, we do not think that the Act compels the assessing officer to ignore it, indulge in imagination and arrive at something which is not related to facts as shown by the return". We are also fortified in our conclusion by the decision of the Andhra Pradesh High Court in Nav Swadeshi Oil Mills v. State of A.P. [1983] 54 STC 149. In that case also the scheme of section 14 of the Andhra Pradesh General Sales Tax Act, 1957 ("the Andhra Act") was similar to the scheme of section 33 of the Bombay Sales Tax Act, 1959. There too an assessment was to be made under section 14(1) when the Assessing Authority was satisfied that the return submitted by the dealer was correct and complete. In case he was not satisfied about the correctness and completeness of the return, he could make the assessment to the best of his judgment under section 14(1) within a period of four years from the expiry of the year to which the assessment relates. In case of failure to submit return "within the prescribed time", assessment could be completed under sub-section (3) to the best judgment of the Assessing Authority within six years from the end of the year. The assessees in that case had submitted the return for the quarter ending March 31, 1969 on August 7, 1969. The due date of submission of return was May 24, 1969. On the basis of the admitted turnover and other particulars furnished in the return, the assessees were assessed by the Assessing Authority and called upon to pay tax. The assessment was made on August 2, 1973. It was barred by limitation if it was an assessment under sub-section (1) of section 14 but it would be within time if it was held to be an assessment under section 14(3). The Andhra Pradesh High Court on consideration of the scheme of section 14 of the Andhra Act, observed : "The real question, therefore, is whether the dealer failed to submit a return and the assessment was made by the Assessing Authority to the best of his judgment under section 14(3) of the Act. In this case, undisputedly, the assessees submitted a return. It was no doubt not submitted within the due date. In this case, undisputedly, the assessees submitted a return. It was no doubt not submitted within the due date. Can a belated return be treated as a case of no return or, in other words, a case where the dealer failed to submit the return ? We do not think it can be said that there is no return at all when a return is submitted even after the prescribed time. There is no provision in the statute which forbids the filing of a return after a prescribed time or which forbids a return filed belatedly being considered by the assessing officer." In the light of the foregoing discussion, we are of the clear opinion that in the instant case, the assessment made on the basis of returns furnished by the assessee, though belatedly, is an assessment under sub-section (3) of section 33 of the Act and not under sub-section (5) thereof. The Tribunal erred in law in treating the same to be an assessment under sub-section (5) of section 33 and on that basis holding Explanation (I) to section 36(2)(c) inapplicable and setting aside the penalty levied with the aid thereof. Accordingly we answer Question No. I and Question No. 2 in the affirmative and in favour of the Revenue. So far as the Question No. 3 is concerned, in view of our answer to Questions Nos. I and 2, it is now academic for the present purpose. We therefore decline to answer the same. This reference is disposed of accordingly. Under the facts and circumstances of the case, there shall be no order as to costs.