Penalty is not exigible under section 12(5) of the Tamil Nadu General Sales Tax Act, 1959 read with section 9(2-A) of the Central Sales Tax Act, 1956, when the assessee failed to disclose the taxable turnover in the monthly returns but filed a revised return before the completion of the assessment.

THANIKKACHALAM, J.

The State is the petitioner herein. The assessee is one R. Periyalwar Naidu, dealer in grams at Kumbakonam.

2. The final assessment was made on the turnover found in the books for the assessment year 1980-81. The assessee failed to disclose the taxable turnover of Rs. 2, 30, 688 in the monthly returns in form-I filed for the year 1980-81. Failure to disclose the book taxable turnover in the return warrants levy of penalty under section 9(2-A) of the Central Sales Tax Act, 1956 (hereinafter referred to as "the Act") read with section 12(5) of the Tamil Nadu Sales Tax Act, 1959 (hereinafter referred to as "the Act, 1959"). While the original assessment .was completed, penalty was not levied. Hence, separate penalty proceedings was initiated. The assessee objected to the levy of penalty. According to the assessee only a nominal fees can be levied and penalty under section 12(5) of the Act, 1959 cannot be levied since there is no wilfulness on their part, in the non-disclosure of the turnover. The assessing officer was of the view that whether there is wilfulness or not when there is non-disclosure of turnover which warrants penalty under section 9(2-A) of the Central Act read with section 12(5) of the Act, 1959. Accordingly, penalty was levied to the extent of Rs. 4, 614 under section 9(2-A) of the Act. On appeal, the Appellate Assistant commissioner confirmed the penalty levied by the assessing officer. Aggrieved, the assessee filed further appeal before the Tribunal and the Tribunal pointed out that on March 31, 1981 the assessee has filed a statement showing the undisclosed turnover before the assessment was completed. Therefore, according to the Tribunal there is bona fide on the part of the assessee in non-disclosure of the turnover in the monthly return and even otherwise if the assessee filed the revised return or a statement before the completion of the assessment, penalty is not exigible under section 12(5) of the Act, 1959. Accordingly, the penalty was deleted. As against this order, the department is in revision before this Court.

3. Learned Additional Government Pleader (Taxes) submitted that the Tribunal was not correct in deleting penalty levied under section 12(5) of the Act, 1959 read with section 9(2-A) of the Act. It was further submitted that the Tribunal has failed to note that there was omission to include the turnover in the return and that itself is sufficient for levy of penalty under section 12(5) of the Act, 1959. According to the learned Additional Government Pleader (Taxes), whether there is any bona fide or not, if once the turnover is not disclosed in the return, penalty is exigible under section 12(5) of the Act, 1959. It was further submitted that similar question was pending before this Court for decision in T.C.1414 of 1982. For these reasons, the learned Additional Government Pleader (Taxes) submitted that the Tribunal was not correct in deleting the penalty levied under section 12(5) of the Act, 1959.

4. On the other hand, learned counsel appearing for the assessee while supporting the order passed by the Tribunal submitted that the assessee had a doubt in his mind that prior to March 31, 1981 whether there was out right sale in the goods sent to Calcutta and therefore, the turnover was not disclosed in the monthly return by March 31, 1981. The statement from the Calcutta party would go to show that they have treated the goods sent by the assessee as an out right sale. Therefore, the assessee filed a revised statement showing the turnover. Since the revised statement was filed before the completion of the assessment, no penalty is exigible. Further, inasmuch as the turnover was disclosed, before the completion of the assessment, would go to show the bona fide on the part of the assessee in not disclosing the turnover earlier. For these reasons, the learned counsel appearing for the assessee submitted that penalty is not exigible under section 12(5) of the Act.

5. We ha