1. Heard and perused the record. Main question that needs determination in the aforesaid matter is: (i) Whether the Ld. Appellate Authority on having found that the Assessing Authority while imposing penalty under section 69(1) (b) of J&K Value Added Tax Act (hereinafter referred as VAT Act) did not issue notice in terms of that section and having noticed such lacuna; can the Appellate Authority remand the matter back to Assessing Authority for fresh consideration. (ii) That the reasonable opportunity of being heard had to be provided before levying of penalty and not therefor. 2. The facts leading to the case in hand happen to be that appellant is a registered dealer with Commercial Tax Department for trading of stationery paper and allied items and is registered with Assessing Authority, Circle-K, Jammu. The appellant stated to have filed complete documents for completion of assessment for the accounting year 2006-07. According to the Assessing Authority appellant had submitted late return for 2nd quarter, late by one month and one day, 3rd quarter by 27 days. 4th quarter by one month and four days which he was required to file under section 32 of the VAT ACT and on his failure to file returns within the stipulated time and failure on his part to show reasonable cause, has passed order of imposing penalty on 01-12-2009 requiring appellant to furnish penalty of Rs. 22,000/ . 3. Feeling aggrieved of the order of imposing penalty appellant herein agitated the matter before the Ld. Appellate Authority who vide order dated 20-08-2011 has observed as under:- "The record was called for from the concerned circle the Assessing Authority was discussed. It transpires from the record that the dealer has deposited tax alongwith the interest due but all the returns have been filed late. No notice for late filing of returns have been issued to the appellant nor any mention thereof has been made in the order under section 69(l)(b) of the Act. In the light of above, the impugned order of penalty cannot sustain and is hence set aside. The case is remanded to the Assessing Authority with the direction to look into the matter afresh after affording the appellant a reasonable opportunity of being heard" 4. In the light of above, the impugned order of penalty cannot sustain and is hence set aside. The case is remanded to the Assessing Authority with the direction to look into the matter afresh after affording the appellant a reasonable opportunity of being heard" 4. Before considering the grounds urged in support of the present appeal, it is pertinent to reason here as to what is the nature of penalty proceedings envisaged under Value Added Tax Act or for that any other fisical statute inviting penalty. 5. The Hon'ble Apex Court of India In Hindustan Steel Ltd. v. State of Orissa reported at 1970 (211) Sales Tax Cases Volume XXV (SC) noted as under:- "An 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 a guilty or conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also 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. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute." 6. So being quasi-criminal proceedings penalty is not to be imposed for the sake of imposition of penalty, rather the Authority under the Act is to proceed in accordance with law; must see that the party obliged to file returns or submit assessment proceedings has either acted deliberately in defiance of law or is guilty of conscious misconduct, section 32 of the VAT Act requires filing of returns by every registered dealer and whereas Section 69 Clause (I) (b) speaks of that if any person without reasonable cause fails to furnish returns or revised returns as the case may be, shall be amendable to imposition of penalty. In terms of sub clause (2) to Sec 69 the Authority concerned while exercising power of imposition of penalty under sub clause (I), shall give the person in default an opportunity of being heard. Use of word "shall" in sub-clause(2) makes this provision mandatory and any non-compliance thereto would make whole penalty proceedings bad in law. The Ld. Appellate Authority is right in holding that Assessing Authority's power of order of the imposition of penalty in terms of 69 clause 1(b) was bad due to failure in providing opportunity of being heard to the appellant, to that extent no fault can be found in the order impugned. But the question herein would be whether the Appellate Authority is justified in passing direction for fresh hearing in the case of appellant or provided him an opportunity of being heard? 7. Section 72(2) declares the ambit and scope of powers to be exercised by the Appellate Authority which speaks of appeal against assessment and appeal against penalty. In an appeal against an order imposing penalty, the Appellate Authority has been conferred with the powers to confirm, or cancel such order or vary it so as to either enhance or reduce the penalty. No power has been given, as in case of an appeal against the order of assessment, to set aside the order of penalty and refer the case back to the Authority which passed the order for making a fresh order in accordance with the direction given by it or after making such further enquiry as may be necessary. There is thus a clear distinction in the power of the Appellate Authority in an appeal against an order of assessment and in appeal against an order of penalty. While dealing with an appeal against an order of assessment it has been specifically conferred with the power to set aside the assessment and refer the case back to the assessing authority for making a fresh assessment in the manner specified therein but no such power is there while deciding an appeal against an order of penalty. The omission of this power of setting aside and referring back for fresh order is not accidental but deliberate. The omission of this power of setting aside and referring back for fresh order is not accidental but deliberate. The Legislature has given to the Appellate Authority while dealing with an appeal against an order of penalty, in addition to the power to confirm or cancel such order, also the power to vary it so as either to enhance or reduce the penalty. Similar is the position in case of an appeal against interest. It is, therefore, clear that the Appellate Authority while disposing an appeal against an order of penalty cannot set aside the penalty and refer the case back to the Assessing Authority to make a fresh order of penalty. (Reference can be drawn from Balaji Cotton Company case (1995) 97 STC 613 ). 8. Even otherwise also once the proceedings are held to be quasi-criminal proceedings any non compliance of the provision cannot be given fresh lease of life after penalty has been imposed. Since giving of fresh lease of life, would make the very existence of provision of providing opportunity of being heard redundant and all Authorities created under the statute would first thwart applying of due process and than take cover under superior forums; which would usurp the intention of the legislature. When the law speaks of that an act is to be done in a particular manner than it has to be done in that manner alone, and any circumvention of procedure would lead to an anomalous situation and cause mis-carriage of justice. So the order passed by the Ld. Appellate Authority in so far it pertains to setting-aside of the order of penalty for non compliance of sub clause (2) of Section 69 is upheld, but the other part of the order whereby it directed for conduct of fresh enquiry that direction is held contrary to statute is thus quashed. The appeal is accordingly allowed. Record, summoned, if any be returned forthwith.