JUDGMENT B.P. Dharmadhikari, J. 1. Heard learned Additional Government Pleader Shri S.M. Uike for the applicant The Commissioner of Sales Tax, Maharashtra State, Bombay and learned counsel for the respondent Shri Rishikesh Chitale. 2. Following questions are referred to this Court under Section 61 of the Maharashtra Sales Tax Act, 1959 (earlier Bombay Sales Act, 1959) (for short, “the said Act”), thus : (1) Whether on the facts and circumstances of the case, the Tribunal was justified in coming to the conclusion that the order of assessment was governed by Sub section (5) of Section 33 of the Act and not by Sub section (3) of Section 33 of the Act inspite of the fact that the sales tax officer had assessed the dealer under Sub section (3) of Section 33 of the Act and, therefore, Explanation (1) to Section 36(2)(c) could not have been invoked for levy of penalty under the said Section 36(2)(c)? (2) Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in rejecting the contention of the Department that penalties are levied under Section 36(2)(c) of the Act and Explanations (1) and (2) of the said Section are merely rules of evidence enabling the levy of penalty in two different sets of circumstances and that penalty can be converted from Explanation (1) to Explanation (2) or Section 36(2)(c) of the Act? 3. By placing reliance upon the order passed by the sales tax officer on 5.8.1980, learned Additional Government Pleader for the applicant Shri S.M. Uike submits that it expressly refers to Section 33(3) of the said Act and also points out the actual figures of sales and purchases from books of account. Thereafter, the tax paid along with returns is compared with the tax worked out. As it is found to be less than 80% of the demand so worked out, presumption under Section 36(2)(c) Explanation I has been rightly applied. He contends that effort of assassee to urge that said Explanation I has no application and Explanation II has to be applied, must fail because here assessment has not been undertaken under Section 33(5) of the said Act. 4. Learned counsel for the respondent Shri Rishikesh Chitale relies upon Section 33 of the said Act. He contends that effort of assassee to urge that said Explanation I has no application and Explanation II has to be applied, must fail because here assessment has not been undertaken under Section 33(5) of the said Act. 4. Learned counsel for the respondent Shri Rishikesh Chitale relies upon Section 33 of the said Act. According to him, Section 33(3) of the said Act proceeds on the basis of information furnished in the return while Section 33(5) of the said Act can be invoked in cases where return is not filed within prescribed time. In the present matter, as returns have not been filed within prescribed time, Section 33(5) of the said Act is squarely attracted. As Section 33(5) of the said Act is attracted, Explanation I to Section 36(2)(c) cannot have any application as in that event it is later Explanation which squarely occupies the field. In order to explain mutually exclusive scope of two Explanations, he has relied upon the judgment of the Division Bench of this Court in the case of Indoswe Engineers (P.) Ltd. vs. State of Maharashtra, reported at 1996 (Vol.101) 177, particularly paragraph No.24 thereof. He points out that this judgment has been looked into by later Division Bench of this Court while answering Sales Tax Reference No.17 of 2003 on 26.12.2015 and the very same view has been taken. 5. Learned counsel for the respondent Shri Rishikesh Chitale invites our attention to order of sales tax officer dated 5.8.1980 to urge that it does not mention any return filed by the assassee and, therefore, it has been passed by exercising best judgment and, hence, essentially falls under Section 33(5) of the said Act. 6. Learned Additional Government Pleader for the applicant Shri S.M. Uike invites our attention to the provisions of Section 36(2) as prevailing on the date when the returns were filed and as looked into by the later Division Bench of this Court while answering Sales Tax Reference No.17 of 2003. We need not go into those details because it is not in dispute that the provisions, prevailing on the date relevant for present adjudication, have been looked into in the case of Indoswe Engineers (P.) Ltd. mentioned supra. In the said reported judgment, the period of assessment was from 1.7.1977 to 30.6.1978. 7. The facts at hand show that we are concerned with the period from 1.7.1977 to 30.6.1978. In the said reported judgment, the period of assessment was from 1.7.1977 to 30.6.1978. 7. The facts at hand show that we are concerned with the period from 1.7.1977 to 30.6.1978. The returns for the quarters ending of 30.9.1977, 31.12.1977, and 31.3.1978 were filed late and return for the quarter ending on 30.6.1978 was not filed at all. The sales tax officer imposed penalties under Section 36(2)(c) of the said Act with reference to Explanations I, II, and also under Section 36(3) of the said Act. In statement of case forwarded to this Court, amount of penalty imposed under Explanation II of Section 36(2)(c) of the said Act is mentioned as Rs.880/while in the order of sales tax officer dated 5.8.1980 that amount is mentioned as Rs.88/. In the judgment dated 31.10.1984, allowing the reference to be made, the Tribunal has mentioned the amount as Rs.88/and has further noted that, in first appeal against order of assessment and penalty, ground relating to imposition of said penalty with reference to Explanation II was not pressed. 8. At this juncture, it will be proper to refer to the provisions of Sections 33(3) and 33(5) of the said Act. Section 33(3) of the said Act contemplates non-satisfaction of the Commissioner and, hence, when that authority is satisfied that the return furnished by assessee is not correct or complete, and thinks it necessary to require the presence of dealer or production of further evidence, he is empowered to serve upon such dealer a notice to attend and to produce all evidence on which such dealer relies in support of his return or to produce such evidence as is specified in the notice. As against this, Section 33(5) of the said Act empowers the Commissioner to proceed to assess any dealer to the best of his judgment, if at any time within 8 years, the registered dealer has not furnished returns in respect of any period by prescribed date. 9. Arguments raised above, therefore, show an attempt on the part of the department to demonstrate that the returns filed belatedly can also be processed under Section 33(3) of the said Act and an effort on the part of the assessee to urge that the returns so filed cannot be subjected to Section 33(3) of the said Act at all. 10. Arguments raised above, therefore, show an attempt on the part of the department to demonstrate that the returns filed belatedly can also be processed under Section 33(3) of the said Act and an effort on the part of the assessee to urge that the returns so filed cannot be subjected to Section 33(3) of the said Act at all. 10. In present facts, it is not in dispute that the assessee filed the returns belatedly and before imposing penalty, he was also served with a show cause notice on 24.7.1980. The order of assessment dated 5.8.1980 expressly records that no reasonable cause would be shown by him as to why penalty should not be inflicted. Here, for quarters ending 30.9.1977, 31.12.1977, and 31.3.1978 returns have been filed belatedly while for quarter ending 30.6.1978 return was not filed at all. It is in this situation that the sales tax officer has proceeded to pass an order of assessment for Assessment Year 1980-81 for a period from 1.7.1977 to 30.6.1978. What is important to be noted is, by filing returns the quantum of sales and purchases was disclosed for part of this period while it was not so disclosed for quarter ending on 30.6.1978. 11. The order of assessment, looks into the books of account produced by the assessee, draws various transactions from it and ultimately works out tax at Rs.34,575.85. The tax has been worked out on the basis of books of account of assessee after he produced the same in response to notice of department and, therefore, it is not best judgment assessment. The fact that the assessee has paid tax of Rs.22,018.86 has also been taken note of. It is found that the said payment is not 80% of the tax worked out and, therefore, presumption under Explanation I of Section 36(2)(c) of the said Act has been invoked after following due procedure. In respect of quarters in relation to which no return was filed, perhaps the penalty under Explanation II of Rs.88/was levied. 12. Perusal of order of the sales tax officer dated 5.8.1980 does not show that it is in exercise of best judgment that the assessment has been done. On the contrary, the entries in the books of account varying with returns filed are relied upon and then the assessment has been completed. 13. 12. Perusal of order of the sales tax officer dated 5.8.1980 does not show that it is in exercise of best judgment that the assessment has been done. On the contrary, the entries in the books of account varying with returns filed are relied upon and then the assessment has been completed. 13. No provision has been pointed out to this Court which prohibits the department from looking into the returns which are filed belatedly i.e. after prescribed date. The provisions of Explanations I and II of Section 36(2)(c) of the said Act are no doubt mutually exclusive, but then that does mean that the provisions of Sections 33(3) and 33(5) of the said Act are also mutually exclusive. If the return is filed belatedly and it does not give correct and complete figures, the provisions of Section 33(3) of the said Act can be applied by the department to such return. 14. Accordingly, we answer the questions, as referred, against the assessee and in favour of the department. No costs.