ORDER Shantanu Kemkar, J. 1. The petitioner M/s Ind Exports Limited, a company incorporated under the Indian Companies Act, 1956 having its registered office at Mumbai and depot at Indore, claiming to be a registered dealer under the provisions of M. P. Commercial Tax Act, 1994 (for short Act of 1994) has filed this writ petition challenging the order dated 18-1-2003 (Annexure P-2) passed by the Assistant Commissioner,; Commercial Tax Division-II, Indore as also the order dated 29-7-2003 (Annexure P-4) passed in Revision No. 44/2003 by the Additional Commissioner, Commercial Tax, Indore. 2. Brief facts of the case are that the petitioner company dealing in various items also dealt in the edible oil for the relevant year 1-4-1999 to 31-3-2000. The petitioner had filed its quarterly returns in respect of the State Sales Tax as also the Entry Tax and had deposited the taxes on the basis of such returns. It is the case of the petitioner that its entire turnover of sales of all items including edible oil was duly and correctly disclosed in the return. However, on the basis of wrong impression, the rate of tax on edible oil was shown as 2% in place of 4%. The assessment of the petitioner's case was completed on 29-11-2002. While completing the assessment the Assessing Authority levied the tax at the rate of 4% as against 2% which was collected and paid by the petitioner. 3. The case of the petitioner is that the assessment was completed on the basis of turnover disclosed by the petitioner in its return and the said turnover of all the items including edible oil was accepted by the Assessing Authority. It is stated that the additional demand to the tune of Rs. 10,48,301/- was raised vide assessment order dated 29-11-2002 (Annexure P-1) only on account of difference in the rate of tax on edible oil from 2% to 4% on account its increase w.e.f. 1-5-1999. The petitioner's explanation was that the rate of tax on edible oil was 2% since 1-4-1995 and the same was continued upto 30-4-1999. The said rate was increased to 4% from 1-5-1999. According to the petitioner, it could know about the change in the rate only when the entire Schedule II was substituted w.e.f. 1-1-2000 by new Schedule II vide M. P. Commercial Tax (Amendment) Act, 1999. The said rate was increased to 4% from 1-5-1999. According to the petitioner, it could know about the change in the rate only when the entire Schedule II was substituted w.e.f. 1-1-2000 by new Schedule II vide M. P. Commercial Tax (Amendment) Act, 1999. Having got the knowledge of increase in the rate of tax from 2% to 4%, the petitioner immediately paid the correct tax from 1-1-2000 to 31-3-2000. 4. On the basis of the aforesaid assessment order (Annexure P-1), proceedings under section 69 of the Act of 1994 for imposition of penalty was initiated against the petitioner. The said proceedings ended in the order of imposition of penalty on the petitioner to the extent of Rs. 51,98,280/-, (five times to the difference in tax). The said order of penalty dated 18-1-2003 (Annexure P-2) was assailed by the petitioner by filing a revision under section 62 of the Act of 1994 before the Additional Commissioner of Commercial Tax, Indore. The Additional Commissioner, by impugned order dated 29-7-2003 (Annexure P-4) dismissed the petitioner's revision and maintained the order of penalty passed by the Assistant Commissioner, Commercial Tax, Division II, Indore. Aggrieved, the petitioner has filed this petition. 5. According to the petitioner, the impugned orders by which penalty has been imposed have been passed by the authorities without fulfilment of the conditions precedent for imposing penalty. It is the case of the petitioner that deposit of tax at a lower rate without any dishonest intention does not amount to concealment and no penalty could have been imposed. It is the case of the petitioner that 2% rate of tax on edible oil was prevalent since 1-4-1995. It was changed to 4% by mere change of rate in Entry from 1-5-1999. However, petitioner under a bona fide wrong impression that the same is 2% continued to collect and deposit the tax 2%. It is only when the entire Schedule II was substituted by new Schedule II, the petitioner got knowledge of increase in the rate. Thus according to the petitioner under bona fide mistake it had collected and paid the tax at the rate of 2% and there was no concealment of the turnover or furnishing of false particulars of the turnover or furnishing of a false return so as to made it liable for penalty. 6. Thus according to the petitioner under bona fide mistake it had collected and paid the tax at the rate of 2% and there was no concealment of the turnover or furnishing of false particulars of the turnover or furnishing of a false return so as to made it liable for penalty. 6. On the other hand, the respondents have supported the impugned orders and have contended that the petitioner's contention that the commercial tax at the rate of 2% was deposited under a bona fide mistake, cannot be accepted. According to the respondents from the conduct of the petitioner the mens rea of evasion of tax is apparent. The petitioner/assessee has wrongly mentioned the rate of tax to be 2% instead of 4%, in the circumstances the petitioner cannot be absolved from the liability of paying penalty as contemplated under section 69 of the Act of 1994. According to the respondents, the petitioner's contention that it had no knowledge of increase in tax w.e.f. 1-5-1999 till 1-1-2000 cannot be accepted. It is the case of the respondents that the petitioner-company though having knowledge about the increase in rate of tax has furnished false rate in its return and as such the penalty has rightly been imposed. 7. Heard learned counsel for the parties and perused the record. 8. It is not in dispute that the petitioner's return about disclosure of turnover of sale of all items including edible oil has been accepted by the Assessing Authority. The only ground on which the petitioner was held liable by the Assessing Authority to pay additional demand of Rs. 10,48,301/- was on account of difference in rate of tax on edible oil shown by the petitioner and the actual rate of tax from 1-5-1999. 9. It is undisputed that in Part VI Schedule II Entry No. 12 the rate of tax on edible oil was 2% from 1-4-1995 to 30-4-1999. The said Entry No. 12 was amended by M. P. Commercial Tax (Amendment) Act, 1999 w.e.f. 1-5-1999. It was deleted from Part VI of Schedule II and was inserted in Part V of Schedule II in Entry 38 and the rate of tax was changed from 2% to 4%. Thereafter, the entire Schedule II was substituted by new Schedule by Amendment Act, 1999 w.e.f. 1-1-2000 and the edible oil was shifted to Entry 22 in Part IV of Schedule II. Thereafter, the entire Schedule II was substituted by new Schedule by Amendment Act, 1999 w.e.f. 1-1-2000 and the edible oil was shifted to Entry 22 in Part IV of Schedule II. It was again substituted by Amendment Act, 2000 w.e.f. 15-3-2000 and the edible oil was shifted to Entry No. 75 Part V Schedule II and the rate of tax was again reduced to 2% w.e.f. 10-4-2000 vide Notification No. 27 issued on 10-4-2000. 10. In order to appreciate the controversy involved in this petition which is restricted as to whether the penalty has been rightly imposed upon the petitioner we feel it necessary to extract section 69 of the Commercial Tax Act which reads thus : 69. Power of Commissioner or appellate or revisional authority to impose penalty in certain circumstances. -- (1) If the Commissioner or the appellate or revisional authority, in the course of any proceedings under this Act is satisfied that a dealer has concealed his turnover or the aggregate amount of purchase prices in respect of any goods or has furnished false particulars of his sales or purchases, as the case may be, in his return or returns for any year or part thereof or has furnished a false return or returns for such period, the Commissioner or the appellate or the revisional authority as the case may be, may initiate proceeding separately for imposition of penalty under this section. (2) The proceeding under sub-section (1) shall be initiated by the Commissioner or the appellate or revisional authority as the case may be, by issue of a notice in the prescribed form for giving the dealer an opportunity of being heard. On hearing the dealer, the Commissioner or the appellate or the revisional authority as the case may be, shall pass an order not later than one calendar year from the date of initiation of such proceeding or within such further time as allowed by the State Government, directing the dealer that, he shall in addition to the tax payable by him pay by way of penalty a sum which shall not be less than three times but shall not exceed five times of the amount of tax evaded. (3) If the total tax shown as payable according to the return or returns and paid by a dealer for any period or part thereof is less than eighty per cent of the total tax assessed under section 27 such dealer shall be deemed to have concealed his turnover or aggregate of his purchase prices or to have furnished false particulars of his sales or purchases in his return or returns or to have furnished a false return or returns for the purpose of sub-section (1) unless he proves to the satisfaction of the Commissioner or the appellate or the revisional authority, as the case may be, that the concealment of the said turnover or the aggregate of purchase prices or furnishing of particulars of sales or furnishing of the false return or returns was not due to any fraud or gross negligence on his part. 11. On a plain reading of the section 69 of the Act of 1994 it is clear that the imposition of penalty is attracted if the Commissioner or the appellate or the Revisional Authority is satisfied that the dealer has concealed his turnover or the aggregate amount of purchase prices in respect of any goods or has furnished false particulars of his sale or purchases, as the case may be, in his return or returns for any year or part thereof, or has furnished a false return or returns for such period. Thus, it has to be seen that whether the petitioner has concealed his turnover or has furnished false particulars of his sale or purchases in his return or has furnished a false return. 12. Undoubtedly, there is no allegation or findings that the petitioner has concealed his turnover or has furnished false particulars of sale or purchases in the return. On the other hand the petitioner's turnover as was disclosed in the return was duly accepted. So far as furnishing of false return, the petitioner has stated that there is no furnishing of false return. The mistake about rate of tax was a bona fide mistake on its part and it had occurred due to lack of knowledge to the petitioner about the increase in the rate of tax from 2% to 4% w.e.f. 1-5-1999. It is not in dispute that though the petitioner recovered and paid the tax at the rate of 2% but when the additional demand of Rs. It is not in dispute that though the petitioner recovered and paid the tax at the rate of 2% but when the additional demand of Rs. 10,48,301/- was raised, the same was deposited. 13. It is now well settled that the order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceedings, 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. To make the assessee liable for penalty fallacy should be in the disclosure of the facts required to be stated in the return. When the facts are fully disclosed in a return and are not misstated, the raising of a legal plea of exemption cannot make the return a false return within the meaning of section 69 unless there is an element of deliberateness in it. Where the assessee does not include a particular item in the taxable turnover under a bona fide belief that he is not liable so to include it, it would not be right to condemn the return as a "false" return inviting imposition of penalty. The concealment of turnover and furnishing of a false return, to fall within the ambit of this section must be accompanied with mens rea. If the assessee had a bona fide doubt whether the particular item is taxable or not and for the reason if he did not show the purchases in the return, it cannot be said that there was any mens rea. The expressions "concealment of turnover", "furnished false particulars of sales or purchase" and "furnished false returns" used in section 69 (1) clearly shows that the element of mens rea is a necessary component. In order to expose the assessee to penalty, unless the case is strictly covered under the provision of penalty, the same cannot be invoked. See Hindustan Steel Ltd, vs. The State of Orissa, 25 STC 211, Dadabhoy's New Chirimiri Ponri Hill Colliery Company Private Ltd. vs. Commissioner of Sales Tax, M. P., 1979 MPLJ 56 : 44 STC 100, The Cement Marketing Co. See Hindustan Steel Ltd, vs. The State of Orissa, 25 STC 211, Dadabhoy's New Chirimiri Ponri Hill Colliery Company Private Ltd. vs. Commissioner of Sales Tax, M. P., 1979 MPLJ 56 : 44 STC 100, The Cement Marketing Co. of India Ltd. vs. The Assistant Commissioner of Sales Tax, Indore and others, 45 STC 197; Govindram Chatramal vs. Commissioner of Sales Tax, Madhya Pradesh, 55 STC 350, Commissioner of Sales Tax, M. P. vs. Shivandas Tekchand, 67 STC 174, Jayshree Chemicals Ltd. vs. Additional Commissioner of Sales Tax, Orissa, 87 STC 359 and Commissioner of Income-Tax vs. Reliance Petroproducts Pvt. Ltd., (2010) 322 ITR 158 (SC). 14. In the light of the aforesaid pronouncement of the Supreme Court and this Court and keeping in view the language of section 69, and the expressions used for making liable for imposition of penalty and the explanation offered by the petitioner in our considered view, it cannot be held that the petitioner deliberately or dishonestly shown rate of tax to be 2% in place of 4% in its return. It is also not a case that the petitioner had recovered the tax at the rate of 4% and deposited it with the department at the rate of 2%. 15. Having regard to the aforesaid, we are of the view that no case under section 69 of the Act of 1994 for imposition of penalty is made out, as according to us there was no deliberate action on the part of the petitioner therefore, in the absence of mens rea, the Provision of penally could not have been invoked against the petitioner. 16. Accordingly, the petition is allowed, the impugned orders Annexure P-2 and P-4 are hereby quashed and the respondents are restrained from recovering the amount of penalty on the basis of the said orders. 17. No orders as to costs.