ORDER KUMAR RAJARATNAM, C.J. - Perceiving the conflict and irreconcilability between the two judgments passed by the two division Benches of this Court in the cases of Babulal Banwarilal, Rajnandgaon v. Commissioner of Sales Tax, Madhya Pradesh (1984) 17 VKN 63 and Uma Medical Stores, Raipur v. Commissioner of Sales Tax (1993) 10 TLD 398; (1993) 26 VKN 9 a division Bench of this Court on December 19, 2003 thought it appropriate to place the matter before a larger Bench to determine whether the Commissioner of Sales Tax has the jurisdiction or competence to impose, in course of proceeding under section 39(2) of the M.P. General Sales Tax Act, penalty under section 43 of the Act in view of the fact that the assessing officer has not passed any order in that behalf, in course of original assessment. As we intend to finally dispose of the matter and the learned counsel for the parties have no objection for the same and further there is no impediment in that regard it is requisite to state the facts in brief. The respondent - assessee was assessed to entry tax under the M.P. Entry Tax Act (Act No. 52 of 1976) and the said tax was levied and deducted in accordance with the provisions of the M.P. General Sales Tax Act, 1958. The assessee was assessed to tax and there was imposition of nominal penalty of Rs. 100 apart from tax. No penalty for alleged concealment of turnover under section 43(1) of the Act was imposed. The Additional Commissioner of Sales Tax proposed to initiate a proceeding under section 39(2) of the Act for imposition of penalty under section 43(1) of the Act. A notice accompanied by the statement of reasons on which the order passed by the assessing officer was sought to be revised for the purpose of imposition of penalty was issued to the respondent. Being aggrieved by the issuance of such notice the petitioner invoked the extraordinary jurisdiction of this Court. It was contended before the learned single Judge that in the absence of order imposing penalty in the original proceeding of assessment, no action for imposing penalty could be undertaken in exercise of power on the authority under section 39(2) of the Act. Before the learned single Judge strong reliance was placed on the decision rendered in the case of Babulal Banwarilal (1984) 17 VKN 63. Before the learned single Judge strong reliance was placed on the decision rendered in the case of Babulal Banwarilal (1984) 17 VKN 63. The learned single Judge considered the language employed under sections 39 and 43(1) of the Act and placing reliance on the decision rendered in the case of Babulal Banwarilal (1984) 17 VKN 63, quashed the impugned notice issued under section 39(2). We have heard Mr. R. S. Jha, learned Deputy Advocate-General for the appellant/State and Mr. Sumit Nema, learned counsel for the respondent-assessee. It is contended by Mr. Jha, learned Deputy Advocate-General for the appellant, that the division Bench decision rendered in the case of Babulal Banwarilal (1984) 17 VKN 63 does not lay down the correct law inasmuch as the said Bench has not taken note of the provision contained in section 43(1) of the Act. Learned counsel for the State propounded that in the case of Uma Medical Stores (1993) 10 TLD 398; (1993) 26 VKN 9 (MP) the division Bench has taken note of section 43 of the Act and has correctly come to hold that the proceeding for penalty can be initiated in exercise of suo motu power of revision under section 39(2) of the Act though there had been no imposition of penalty in course of proceeding of assessment. Mr. Jha also submitted that sections 39(2) and 43 have to be read in a harmonious, purposive and purposeful manner to subserve the cause of the enactment and to remedy the mischief caused by the unscrupulous dealers. Mr. Sumit Nema, learned counsel appearing for the assessee, in his turn, submitted that the assessment proceeding is quite different than the proceeding initiated for penalty and once the assessing officer has not adverted himself with regard to factum of imposition of penalty the same cannot be dwelled upon for the first time by the revisional authority as such an act would not come within the ambit and sweep of the language in which the section 39(2) has been couched. It is argued by him that section 39(2) employs the terms like "enhancing or modifying the assessment or cancelling the assessment" and hence, a restricted meaning has to be given to the said terms and by no stretch of interpretation the penalty proceeding can be initiated for the first time by the revisional authority, the Commissioner of Sales Tax. It is argued by him that section 39(2) employs the terms like "enhancing or modifying the assessment or cancelling the assessment" and hence, a restricted meaning has to be given to the said terms and by no stretch of interpretation the penalty proceeding can be initiated for the first time by the revisional authority, the Commissioner of Sales Tax. The learned counsel further submitted that the aid taken by the State of section 43(1) is unacceptable as the words used under section 43(1) "any proceeding" cannot be given such broader meaning to include the assessment proceeding wherever the question of penalty has arisen. To substantiate his submission he has placed reliance on the decision rendered in the case of M. Ramaswamy Pillai v. State of Madras [1968] 22 STC 224 (Mad.), Tata Exports Limited v. State of Maharashtra [1995] 98 STC 314 (Bom), Deputy Commissioner of Commercial Taxes, Madurai Division, Madurai v. K.M. Thomas & Co. [1973] 31 STC 529 (Mad.), State of Tamil Nadu v. Sha Kundanmull Bhavarlal & Co. [1993] 90 STC 574 (Mad.), State of Haryana v. Dasaunda Singh Waryam Singh [1996] 103 STC 128 (P&H) and Bhavnagar Chemical Works (1946) Ltd. v. Commissioner of Sales Tax, Ahmedabad [1991] 83 STC 409 (Guj). The crux of the matter is whether initiation of proceeding by the revisional authority under section 39(2) is permissible or is to be annulled because of lack of jurisdiction. To appreciate the submission raised at the Bar it is appropriate to reproduce section 39(2) of the Act. The crux of the matter is whether initiation of proceeding by the revisional authority under section 39(2) is permissible or is to be annulled because of lack of jurisdiction. To appreciate the submission raised at the Bar it is appropriate to reproduce section 39(2) of the Act. It reads as under : "(2) The Commissioner may on his own motion or on information received call for and examine the record of any proceeding under this Act if he considers that any order passed therein by any person appointed under section 3 to assist him including any officer to whom he has delegated his powers under sub-section (1) in pursuance of the provisions of section 30, is erroneous insofar as it is prejudicial to the interests of the revenue, he may after giving the dealer or person a reasonable opportunity of being heard after making or causing to be made such inquiry as he deems necessary, pass such order thereon, within one calendar year from the date of initiation of proceeding as the circumstances of the case justify including an order enhancing or modifying the assessment or cancelling the assessment and directing a fresh assessment." At this juncture it is appropriate to refer to section 43(1) of the Act which is as follows : "43. Power of Commissioner or appellate authority to impose penalty. Power of Commissioner or appellate authority to impose penalty. - (1) If the Commissioner or the appellate authority, in the course of any proceeding under this Act, is satisfied that a dealer has deliberately concealed his turnover in respect of any goods or furnished a false return, the Commissioner or the appellate authority, as the case may be, may after giving the dealer a reasonable opportunity of being heard, direct that the dealer shall, in addition to the tax payable by him, pay by way of penalty a sum not exceeding the amount of the tax which would have been avoided if the return furnished by the dealer had been accepted as correct." It is noticeable that in the case of Babulal Banwarilal (1984) 17 VKN 63 (MP), the division Bench after referring to section 39(2) held that reading of section 39(2) would go to show that the Commissioner's power of interference under that provision arises if he considers that any order passed therein by any person is erroneous insofar as it is prejudicial to the interest of revenue and, therefore, if there is no order passed in the proceeding the Commissioner has no power under section 39(2) to interfere in suo motu revision. The Bench further observed that the existence of power is a must for exercise of power. In the aforesaid case the division Bench did not notice the provision contained under section 43(1) of the Act. In the case of Uma Medical Stores (1993) 10 TLD 398; (1993) 26 VKN 9 (MP) the division Bench answered the reference sent by the Sales Tax Appellate Tribunal. It is pertinent to state here that number of questions were set out by the Tribunal for answer of this Court and question No. (iv)(a) pertained to whether the Commissioner of Sales Tax has jurisdiction or competence to impose in course of proceeding under section 39(2) of the Act to impose penalty under section 43 thereof, particularly in view of the fact that the assessing officer had not passed any order in that behalf or even considered the matter during the course of original assessment. It is worthwhile to mention here that before the division Bench only this singular issue was pressed. While dealing with the said aspect the Bench referred to section 39(2) as well as section 43 of the Act. It is worthwhile to mention here that before the division Bench only this singular issue was pressed. While dealing with the said aspect the Bench referred to section 39(2) as well as section 43 of the Act. After reproducing both the provisions the Bench held as under : "A reading of section 43 will show that the power to impose penalty is conferred on the Commissioner or the appellate authority in the course of any proceeding under the Act. The words 'in course of any proceeding under the Act' are not limited to original or appellate proceedings. These words are wide enough to cover a proceeding under section 39(2). Therefore if the Commissioner, in the course of proceedings under section 39(2), is satisfied that a dealer has deliberately concealed his turnover in respect of any goods or furnished a false return, he can, after giving the dealer a reasonable opportunity of being heard, impose penalty on him under section 43. It cannot, therefore, be said that the Commissioner acted in excess of jurisdiction because the assessing authority in the original assessment had not taken action under section 43," At this stage we may refer with profit to a decision rendered in the case of Food Corporation of India v. Commissioner of Sales Tax, M.P. [1998] 109 STC 131 (SC). In the said case a two-Judge Bench of the Supreme Court referred to section 43 and after reproduction of the same in paragraphs 4 and 5 stated thus : "4. It is clear that the power under section 38(5) is to confirm, reduce, enhance or annul a penalty. It can apply only if a penalty has already been imposed by the assessing authority. Section 43 gives an additional power to the Commissioner or the appellate authority. It is to impose a penalty for the first time in the course of proceedings under the said Act, if satisfied that a dealer has deliberately concealed his turnover or furnished a false return, and he is obliged to give the dealer a reasonable opportunity of being heard before imposing it. 5. It is contended on behalf of the appellant that a penalty imposed under section 43 must be regarded as a fresh assessment and that, therefore, a penalty under section 43 can be imposed only within the period prescribed by section 18(8) of the said Act for the purposes of assessment. 5. It is contended on behalf of the appellant that a penalty imposed under section 43 must be regarded as a fresh assessment and that, therefore, a penalty under section 43 can be imposed only within the period prescribed by section 18(8) of the said Act for the purposes of assessment. We find it difficult to accept the argument, for the power under section 43 can be invoked only in proceedings in appeal from an assessment order or otherwise in proceedings under the said Act. Necessarily, therefore, the imposition of the penalty is a part of such proceedings and cannot be regarded as a fresh assessment. In these circumstances, the limitations of time prescribed under section 18(8) for assessments would not apply to the imposition of penalty under section 43." We have reproduced both the paragraphs to have a clear picture that what the Supreme Court has held in the aforesaid case. As is clear from paragraph 4 which we have reproduced above the section 43 confers additional power to the Commissioner to impose penalty for the first time. True it is, there are certain conditions precedent but presently we are not concerned with the condition precedents. Mr. Nema has also submitted that any proceeding would not mean a proceeding for the first time by the Commissioner. The submission cannot be accepted in view of the law laid down by the Supreme Court in the case of Food Corporation of India [1998] 109 STC 131 (SC). As has been indicated earlier, in the case of Babulal Banwarilal (1984) 17 VKN 63 (MP), the division Bench did not take note of section 43 of the Act; but in the case of Uma Medical Stores (1993) 10 TLD 398; (1993) 26 VKN 9 (MP), section 43(1) was considered and view was expressed. The Supreme Court has already expressed the view that section 43(1) of the Act relates to additional power and confers jurisdiction on the Commissioner to impose penalty. In view of the aforesaid enunciation of law we have to necessarily to hold that the decision rendered in the case of Babulal Banwarilal (1984) 17 VKN 63 (MP) does not state the law correctly. In view of the aforesaid enunciation of law we have to necessarily to hold that the decision rendered in the case of Babulal Banwarilal (1984) 17 VKN 63 (MP) does not state the law correctly. The law laid down in the case of Uma Medical Stores (1993) 10 TLD 398; (1993) 26 VKN 9 (MP) is in consonance with the language of the statute and similar ratio has been laid in the case of Food Corporation of India [1998] 109 STC 131 (SC). Because of existence of section 43(1) of the Act and further what has been stated by the Supreme Court in the case of Food Corporation of India [1998] 109 STC 131 we do not think it necessary to refer to other decisions of various High Courts. Resultantly, we hold that the law laid down in the case of Babulal Banwarilal (1984) 17 VKN 63 (MP) has to be overruled and accordingly we do so and further declare that the law laid down by the case of Uma Medical Stores (1993) 10 TLD 398; (1993) 26 VKN 9 (MP) correctly enunciates the law in the field. In view of the aforesaid, the order passed by the learned single Judge has to be set aside and accordingly we so direct. The Commissioner shall proceed from the stage of show cause and it would be open to the respondent-assessee to raise all the contentions as permissible in law before the said authority. We place on record the valuable assistance rendered to the Full Bench by Mr. Sumit Nema, Advocate. He has brought to our notice the judgment of the Supreme Court reported in Food Corporation of India v. Commissioner of Sales Tax, M.P. [1998] 109 STC 131 which clinches the issue and the assistance rendered to the court by Mr. Jha. The Letters Patent Appeals are accordingly disposed of. Appeals allowed.