ORDER N. K. JAIN, J. - The Board of Revenue, M.P., Gwalior (hereinafter, for short, "the Tribunal"), on an application made under section 44(1) of the M.P. General Sales Tax Act, 1958 (for short, "the State Act") read with section 9(2) of the Central Sales Tax Act, 1956 (for short, "the Central Act") by the applicant-assessee has stated the case and referred the undernoted questions of law for the opinion of this Court arising out of its order dated February 20, 1987 passed in Appeal No. 332-PBR of 1985 : "1. Whether, on the facts and in the circumstances of the case, where the assessee had filed all the quarterly returns, the Tribunal was justified in law in holding that the penalty imposed on the assessee under section 17(3)(c)(iii) of the M.P. General Sales Tax Act, 1958 read with section 9(2) of the Central Sales Tax Act, 1956 and further that the penalty imposed under section 17(3)(b)(ii) read with section 9(2) of the said Act for late filing of returns and late payment of tax according to such returns was in accordance with the said provision ? 2. If the answer to the question No. 1, above is in the affirmative, whether the penalty of Rs. 30,000 imposed on the assessee is, in the circumstances of the case, excessive and not in accordance with law ?" 2. Briefly stated the facts of the case as unfolded are these : The applicant-assessee is engaged in the business of purchase of wire rods and sales of different types of wires such as annealed wire, electrode wire, galvanised wire drawn from wire rods. He is a registered dealer under the State Act and the Central Act. He was assessed to tax by the Assistant Commissioner of Sales Tax, Indore, by assessment order dated November 26, 1983 for the period July 1, 1979 to June 30, 1980. The assessing authority besides disallowing certain claims of deductions made by the applicant-assessee, also imposed a penalty Rs. 30,000 under section 17(3)(b)(ii) and section 17(3)(c)(iii) of the State Act read with section 9(2) of the Central Act on the applicant for allegedly not filing returns for the first two quarters and late filing of the third and fourth quarterly returns as also the late payment of tax according to such returns. 30,000 under section 17(3)(b)(ii) and section 17(3)(c)(iii) of the State Act read with section 9(2) of the Central Act on the applicant for allegedly not filing returns for the first two quarters and late filing of the third and fourth quarterly returns as also the late payment of tax according to such returns. The assessee's first appeal was dismissed by the first appellate authority and, therefore, he came up before the Tribunal in second appeal. The Tribunal accepted assessee's contention in respect of part of his claims for deductions and remanded the case to the assessing authority for reassessment on that count. The assessee's appeal regarding imposition of penalty was, however, dismissed by the Tribunal (order of the Tribunal is at annexure "B" forming part of the statement of the case). 3. Dissatisfied with the decision of the Tribunal, the applicant-assessee moved reference application requiring the Tribunal to state the case and refer as many as five questions for the opinion of this Court. The Tribunal by its order dated September 14, 1987 has referred the aforesaid two questions only. 4. We have heard Shri G. M. Chafekar, learned Senior Counsel appearing with Smt. Meena Chafekar for the applicant-assessee and Shri Surjeet Singh, learned Government Advocate for the non-applicant-State. The main contention of Shri Chafekar is that the Tribunal could not have taken recourse to both the clauses (b) and (c) of sub-section (3) of section 17 of the State Act as according to him they are independent of each other, the former applies in case of of late filing of return while latter relates to non-filing of the return. He further submitted that the assessee had in fact filed all the quarterly returns and as such clause (c) was wholly inapplicable to the case. 5. In order to appreciate the contention of the learned counsel, it will be proper here to read the relevant provisions of the State Act, which are as follows : "17. Returns. - (1) Every................as may be prescribed : ...................... 2. ..................... 3. 5. In order to appreciate the contention of the learned counsel, it will be proper here to read the relevant provisions of the State Act, which are as follows : "17. Returns. - (1) Every................as may be prescribed : ...................... 2. ..................... 3. If - (a) a dealer fails without sufficient cause to comply with the requirements of a notice issued under sub-section (1); or (b) a registered dealer fails without sufficient cause to pay the amount of tax in the manner prescribed under sub-section (2) of section 22 or to furnish his returns under sub-section (1) or revised return under sub-section (2) for any period in the manner and by the date prescribed thereunder or while furnishing the return fails to furnish along with the return, the proof of payment as required by sub-section (1-A); or (c) a registered dealer fails to furnish return, the Commissioner may, after giving such dealer a reasonable opportunity of being heard, direct him to pay, by way of penalty - (i) in the cases referred to in clause (a), in addition to any tax payable by him a sum not exceeding fifty rupees for each occasion of default, subject to a maximum of five hundred rupees in each case; (ii) in the cases referred to in clause (b), in addition to the amount of tax, if any, payable by him a sum equal to one per cent of the tax for every month or part thereof for the first six months and 1.5 per cent for the next six months of the first year during which the default continued and thereafter 2 per cent of the tax for every month or part thereof during which the default continued but not exceeding in aggregate 25 per cent of the tax which may be assessed on him under section 18 and where no tax is payable a sum not exceeding one hundred rupees; and (iii) in the case referred to in clause (c), a sum not less than 15 per cent and not exceeding 35 per cent of the tax assessed." 6. It will thus be seen that clause (b) applies to a case of late submission of return while clause (c) applies to non-submission of the return. Both the provisions are independent to each other and the consequences flowing from non-compliance thereof would also be different. 7. It will thus be seen that clause (b) applies to a case of late submission of return while clause (c) applies to non-submission of the return. Both the provisions are independent to each other and the consequences flowing from non-compliance thereof would also be different. 7. Although in the statement of the case it is averred that it was a case of non-filing as well as late filing of returns inasmuch as no return was filed for the first two quarters while returns for the third and fourth quarters were filed late. But, the question as referred to this Court proceeds on the assumption that it was a case of late filing of returns only. Shri Chafekar learned counsel has emphatically stated before us that the assessee had filed all the quarterly returns. According to him it was only when the assessee pointed out to the Tribunal that the returns had already been filed that the question has been framed in the aforesaid manner. Be that as it may, we are bound to answer the question as it is referred to us and which as already pointed out clearly proceeds on the assumption that the assessee had filed all the returns. That being so, no composite penalty could be imposed taking recourse to both the clauses (b) and (c). Nothing substantial could be argued by the learned Government Advocate to take a different view in the matter. 8. Imposition of penalty even otherwise is a serious matter. The authority resorting to the relevant provisions permitting such an imposition is required to be absolutely clear as to : (i) the lapse committed, i.e., evident breach of law; (ii) the provision to be applied in the event of adjudged lapse; (iii) the quantum of penalty permissible by the provision and proportionate to the breach of law. 9. The element of mens rea is yet another aspect. In [1984] 55 STC 350 (MP) (Govindram Chatramal v. Commissioner of Sales Tax, Madhya Pradesh), it is ruled that bona fide doubt in the mind of assessee is sufficient to earn immunity from rigour of penalty. Reference was answered in favour of the assessee by this Court in M.C.C. No. 295 of 1986 (Commissioner of Sales Tax v. Malwa Trading Co. Nagda) and M.C.C. No. 286 of 1986 (Commissioner of Sales Tax v. Malwa Trading Co. Nagda). 10. Reference was answered in favour of the assessee by this Court in M.C.C. No. 295 of 1986 (Commissioner of Sales Tax v. Malwa Trading Co. Nagda) and M.C.C. No. 286 of 1986 (Commissioner of Sales Tax v. Malwa Trading Co. Nagda). 10. Undoubtedly, the Tribunal had to be clear as to which provision (penalty on late submission of return or on non-submission of returns) was applicable. Manifestly, one provision in destructive of the other. There cannot be invocation of both the provisions simultaneously. It is here that the error has crept in. 11. In the result, we answer the question No. 1 in favour of the assessee and against the department. In view of this answer to the question No. 1, the question No. 2 does not arise. 12. The reference is accordingly disposed of in the aforesaid terms but without any order as to costs. In view of our answer on technical ground, Tribunal shall now decide the case afresh. Counsel's fee is allowed at Rs. 750 for each side, if certified. 13. A copy of this order be transmitted to the Tribunal. Reference answered accordingly.