JUDGMENT : A. Pasayat, J. - Petitioner calls in question legality of penalty imposed u/s 13(5) of the Orissa Sales-tax Act, 1947 (in short, 'the Act') by the Sales-tax Officer, Cuttack I Central Circle (opposite party No. 1) and confirmation thereof by the Additional Commissioner of Sales-tax, Orissa, Cuttack. 2. Factual backdrop in a nut-shell is as follows : Petitioner is a dealer registered under the Act, and is assessed to tax by opposite party No. 1 for three periods i.e. (a) April and May. 1995, (b) June, 1995 and (c) July, I995, petitioner fled return disclosing the admitted taxable turnover and the tax payable. However, the admitted tax was not deposited. Proceeding u/s 13(5) of the Act was initiated. In response to the show-cause notice, petitioner look a stand that it was to receive large amounts from State Government for the supplies effected and on account of non-receipt thereof there was unintended default in making the deposit of admitted tax. The Sales-tax Officer found that as compared to the sales effected for the periods in question, the amount receivable from the State Government was comparatively low. Penalties of Rs. 50,000/- for the first period, and Rs. 25,000/- each for the subsequent two periods were levied. Rejecting stand of petitioner that sufficient cause existed for not making the payment in time, penalties as indicated above were levied. Petitioner filed revision before the Commissioner of Sales-tax, Orissa (in short, 'the Commissioner'). 3. The following points were urged in support of its stand that penalty was not leviable. (i) That the petitioner being a small scale Industry mostly depends on Government Departments and Govt. undertakings for supplies of goods on credit but the Departments of Government to which such supplies are made do not make regular payments to the petitioner for which the petitioner was not in a position to pay the demand. (ii) That Section 13-AAA of the Act effective from 1.7.1991 enjoins upon the Departments of Government to which the goods are supplied by the S.S.I. Units to deduct the tax amount from the bills and credit the same in favour of the supplier to the Government treasury and therefore the petitioner is not liable to be penalised for non-payment of the tax amount in time. (iii) That realising the problems of the small scale industries, the C.C.T., Orissa in a circular had instructed the Assessing Officers not to impose penalty under Sections 11(3) and 13(5) of the Act on the small scale industries but notwithstanding the said circular the learned Assessing Officer has imposed a heavy penalty of Rs. 1.00 lakh which is beyond the capacity of the petitioner to pay. (iv) That for the belated payment of the demands dues, the petitioner has also been charged interest u/s 13(6) of the Act and as such the present penalty of 13(5) is a double punishment for one offence. (v) That as per provisions of Section 13(5) of the Act, penalties should have been imposed in doses by instalments from time to time but in the instant case the learned Assessing Officer has made a departure from the settled principles of law. The Additional Commissioner who heard and disposed of the revision application endorsed the view of the Sales-tax Officer that the amount receivable from Government departments was of a very small magnitude when compared to the total sales effected. It was further observed that: Section 13-AAA of the Act shifts the burden of collection of tax from the bills of S.S.I. Units of the departments of Government which are to credit the same in favour of the S.S.I. Units supplying the goods into the Government exchequer. Non-deduction by the concerned Departments was held to be of no consequence on the ground that the petitioner received payment and has never shifted the burden of payment of tax on the departments to which the goods were supplied. It was accepted that the Commissioner had issued a circular to be lenient in the matter of imposition of penalty under Sections 11 (3) and 13 (5) of the Act on the small scale industries making supplies to the departments of Government because of the fact that the payments were held up there inordinately. It was observed that the case at hand was one where the circular had no application because the spirit of the circular was not violated and the petitioner having received substantial payments, was not prevented by sufficient cause in depositing the lax amount. In essence it was concluded that there was wilful default in making the payment. 4. Mr. Ch. It was observed that the case at hand was one where the circular had no application because the spirit of the circular was not violated and the petitioner having received substantial payments, was not prevented by sufficient cause in depositing the lax amount. In essence it was concluded that there was wilful default in making the payment. 4. Mr. Ch. P. K. Misra, learned counsel appearing for the petitioner reiterated the stands taken by the petitioner before the lower forums. It was pointed out that the fact situation has been misconstrued by the authorities. Though for the periods in question some payments had been received, the undisputed position being that more than Rs. 40 lakhs was receivable from the Government departments, the details of which were submitted before the authorities, the levy of penalty is not proper. The details placed before the authorities were not properly analysed. Merely because some payments were made to the petitioner, that did not absolve the concerned departments of the liability to make deduction u/s 13-AAA and to make the deposit. Had that procedure been adopted, liability of the petitioner would have been substantially reduced and there would not have been any occasion for resorting to penal provision. It is urged that the relevant factors were not considered by the authorities and on erroneous interpretation of fact situation the conclusions have been arrived at. Mr. S. C. Lal, learned Sr. Standing Counsel for the Revenue, on the other hand submitted that all relevant aspects have been taken into consideration and after detailed analysis penalty has been levied. 5. Section 13(5) of the Act deals with consequences which flow if any amount is not paid by the due date in pursuance of notice issued under Sub-section (4) of Section 13 of the Act. The authorities in such a situation may direct that the delear or the person, as the case may be, shall in addition to the amount not paid, by way of penalty a sum not exceeding one-half of the total amount due. 6. Levy of penalty u/s 13(5) is discretionary, in an appropriate case, the authority concerned has power not to levy penalty. Consideration which has to weigh with the authority in dealing with the question is whether any plausible explanation for not making the payment has been offered. There must be material to show that mala fides were involved while withholding payment. Levy of penalty u/s 13(5) is discretionary, in an appropriate case, the authority concerned has power not to levy penalty. Consideration which has to weigh with the authority in dealing with the question is whether any plausible explanation for not making the payment has been offered. There must be material to show that mala fides were involved while withholding payment. Notwithstanding, the fact that there has been short payment or non-payment, penalty is not to be automatically levied. It would all depend upon the circumstances of the case. In an appropriate case the authority may choose not to levy penalty. The discretion in this regard has to be exercised judiciously. An order imposing penalty to carry out a statutory obligation is the result of a quasi-criminal proceeding and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty also will not be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. 7. There are some unusual features involved in the case. The authorities appear to have laid emphasis on the fact that for the periods in question certain amounts had been received. However, there is no finding recorded as regards the petitioner's claim that substantial amounts were receivable from Government which are to the tune of more than Rs. 40 lakhs. It is the petitioner's case that though certain amounts have been received during the period, considering high amount receivable from the Government, no mala fides are involved in not making the deposit of admitted sales-tax payable. From the records we find that the details of Government departments from whom various sums are to be received have been filed. The financial statements including the Balance-sheet filed prime facie show that more than Rs. 40 lakhs is receivable from various Government departments. 8. Additionally it is noticed that no deduction as required u/s 13-AAA of the Act has been duly done. It is accepted by the Revenue that it was the duty of the concerned authorities to make the deduction. The financial statements including the Balance-sheet filed prime facie show that more than Rs. 40 lakhs is receivable from various Government departments. 8. Additionally it is noticed that no deduction as required u/s 13-AAA of the Act has been duly done. It is accepted by the Revenue that it was the duty of the concerned authorities to make the deduction. Merely because the petitioner has received some amounts, without the authorities making any deduction, the statutory prescription mandating deduction cannot be lost sight of. No importance appears to have been attached to the non-deduction and non-deposit by the concerned authorities. Ultimately what consequences will flow out of such action is another aspect. It certainly is a factor, which throws light on the bona fides of the assessee. Further more, the quantum of penalty which has to be imposed on the facts of a particular case is a factor which the authorities have to keep in mind while levying penalty. Though in such matters, no uniform principle can be applied, yet the quantum of penalty to be imposed would depend upon the amount withheld and the period for which it was withheld. Explanation offered by the concerned parties have to be taken note of by the concerned Sales-tax Officers while considering appropriateness or otherwise of the quantum of penalty to be levied. These aspects do not appear to have been considered by the authorities in their proper perspective. In the fitness of things, a fresh consideration of the entire materials would be appropriate. We direct the revisional authority to consider the materials brought on record by the assessee, and decide whether levy of penalty is called for, and it is to be levied, quantum thereof. The writ application is allowed to the extent indicated above. No costs. S.N. Phukan, C.J. 9. I agree.