S. MOHAN, OFFG. C.J.

No man is penalised for a mistake, which he never intended to commit, but had happened. The case on hand is one such. Having regard to the finding of the Sales Tax Appellate Tribunal :

"The turnover in question, viz., Rs. 6, 77, 719 was shown in the accounts and also furnished to the assessing authority by various statements before initiating the final assessment proceedings.

The appellants have submitted themselves for assessment on the above turnover by furnishing statements which could as well be equated to the filing of returns before final assessment. Hence it may be seen that the omission to include the turnover is not deliberate and wilful. As such there is no case for levy of penalty."

and further having regard to the finding of the Tribunal :

" The turnover in question has been reflected in the books of accounts and also the statement filed before the assessing officer. Considering the pleading of the appellants as the assessment is under best of judgment under section12(2) of the Act, penalty under section 12(5) (iii) is not attracted. Omission to include the turnover in return have not been proved to be wilful." *

We are of the view that there is no scope for invocation of section12(4) of the Tamil Nadu General Sales Tax Act, 1959. The tax case is, therefore, dismissed.