ORDER
Govinda Bhat, C.J.
1. This is a revision petition preferred by the State against the order of the learned Judicial Magistrate, First Class I Court, Gadag, in Misc. No. 124 of 1966. The respondents were assessed to sales tax under the Mysore Sales Tax Act, 1957. For the period from 24th October, 1957, to 11th November, 1958, they were assessed to tax. That assessment was challenged before this court in W.P. No. 1235 of 1962 which was allowed and the order of assessment was quashed by order dated 21st August, 1963. Thereafter, the Act was amended by Mysore Act 9 of 1964 published on 27th February, 1964. By the said amendment, the assessment which was quashed by the court was validated. It is stated that the tax assessed was subsequently paid. Proceedings were taken before the learned Magistrate under Section 13(3)(b) of the Act for recovery of penalty of Rs. 1,840 from the assessee. The said application was dismissed by the learned Magistrate on the ground that in the absence of a fresh order of assessment after the Validation Act, the Commercial Tax Officer cannot proceed to recover penalty for the period 24th October, 1957, to 11th November, 1958. This view of the learned Magistrate is clearly erroneous in view of the decision of the Full Bench of this Court in Gill & Co. (P.) Ltd. v. Commercial Tax Officer, II Circle, Gadag, and Others ([1973] 31 S.T.C. 336). The effect of validation as stated by the Full Bench is to revive the earlier order of assessment notwithstanding the order made by this court in W.P. No. 1235 of 1962. The question, however, is whether when an assessment has been validated, the penalty leviable under the Act is also validated. The Full Bench of the Allahabad High Court in Lakshmi Kant Jhunjhunwala v. State of Uttar Pradesh has held that penalty is not validated in such circumstances. It is to be remembered that what is sought to be recovered is penalty and not tax. When the assessment was quashed by this court and it was subsequently validated by an Act of Legislature and further when there were difference of opinion even in this court on the question whether the assessment order is automatically validated when it was quashed earlier and it was only as a result of the Full Bench decision rendered on 15th September, 1972 ([1973] 31 S.T.C. 336), it was held that the assessment order is automatically validated, in our opinion, penalty cannot be levied. Therefore, though the ground given by the learned Magistrate for dismissing the application cannot be sustained, the order dismissing the application can be sustained on the ground that there cannot be an order of penalty in the circumstances of the case. In this view, the sales tax revision petition is dismissed, but without costs.
2. Petition dismissed.
