Judgment :- V. RAMASWAMI, J. This batch of revision petitions relates to the asst. yrs. 1962-63 to 1966-67. The petitioner who is the same is all these petitions took on public auction the quarrying right in Karadipatti quary in Karadipatti village for a period of five years from 1st January, 1962. His bid was for a sum of Rs. 20, 500/-. In respect of this transaction, he had paid to the Government a total sum of Rs. 35, 502-20/- which included what is described as the sale amount of the quarry right of Rs. 20, 500/-, sales-tax, local cases, surcharge and cartage charges. It is now seen from the order of the AAC that he took possession of the quarry some time in August 1962. The petitioner did not submit any return for the abovesaid five years in respect of the sale of the building stones and the stone jelly quarried and sold by him or allowed to be quarried and taken by third parties on payment of charges. The intelligence wing of the ST Department, coming to know of the quarrying by the petitioner brought to the notice of the Assessing Authorities about the possibility of the liability for sales-tax. On 19th September, 1966 the petitioner was asked to produce his account books relating to his business. He promised to produce the same on 26th September, 1966 but on that day he appeared without the books and informed the Assessing Officer that the account books were with his partner who is away and he would obtain them and produce them. He was accordingly given time till 30th September, 1966 to produce the accounts. On that day the petition came and reported that he was not maintaining any accounts and that the are no account books to be produced. Thereafter on 27th February, 1967 the Assessing Officer issued a pre-assessment notice proposing to determine the total and taxable turnover on the basis of 7 trips of lorry loads of stone jelly per day, value of each lorry load being Rs. 55/-. He multiplied the value of 7 lorry loads per day by 365 days or 366 days as the case may be for each year and proposed to assess the same under S. 3(1). 55/-. He multiplied the value of 7 lorry loads per day by 365 days or 366 days as the case may be for each year and proposed to assess the same under S. 3(1). The assessee submitted his objection in which he had stated that he himself had not quarried in Karadipatti quarry but he had issued only permits to lorry owners for transporting stone jelly and metal from the quarry, that the quarrying was done by third parties who were not his employees and that he was only collecting seigniorage fee at the rate of Rs. 2.25 per lorry and that therefore he was not liable to be assessed to all. In the assessment proceedings, he also produced one counter foil book containing about 100 leaves in the name of some persons of the village and further stated that it is for each lorry. Even after the pre-assessment notice, the petitioner did not produce any account books or other material to show that he did not sale any jelly or stone. The Assessing Officer, after considering the objections and the only counter-foil book produced by the petitioner held that the petitioner had not revealed the nature of the transactions and that the facts as appearing from the proceedings of the Collector of Madurai granting the petitioner the quarrying right which is described as sale of quarry right and the conditions therein, clearly showed that there was a sale by the petitioner to various third parties of the jelly and stones quarried. He also considered that the quantum of the sales turnover could be estimated at 7 lorry loads per day for 365 days or 366 days as the case may be proposed in the pre-assessment notice and accordingly determined the taxable turnover and the tax payable thereon and assessed the petitioner. The Assessing Officer also considered that since the petitioner had not submitted his return and no account books were also produced, he is liable for a penalty under s. 12(3) and accordingly levied a penalty at 10 times the tax due in respect of each case, except in the year 1966-67. There were five appeals against these assessment orders. The Assessing Officer also considered that since the petitioner had not submitted his return and no account books were also produced, he is liable for a penalty under s. 12(3) and accordingly levied a penalty at 10 times the tax due in respect of each case, except in the year 1966-67. There were five appeals against these assessment orders. At the stage of appeal, the petitioner produced a certificate issued by the Karanam of he village, certain affidavits by various persons who claimed to be persons who actually quarried in that Kardipatti quarry and certain unregistered sale deeds executed by certain individuals. The AAC considered that on importance could be attached to the certificate given by the Karanam or the affidavits filed by the various labours who claimed to have done the actual quarrying work and also the unregistered sale deeds. After a further consideration of the other facts and circumstances, the AAC also came to the same conclusion as that of the Assessing Authority that there was a sale of jelly and stones by the petitioner to the third parties. He then proceeded to estimate. So far as the year 1962-63 is concerned, the AAC thought that since the petitioner himself had taken possession of the quarry only on and from 1st August, 1962. The quantum will have to be determined only with the reference to the period subsequent to 18th August, 1962. Similarly for the year 1966-67, the quarrying right expired on 30th December, 1966 and therefore the period from 1st April, 1966 to 30th June, 1966 alone should be taken into account. He considered that one month period should be allowed for rainy season and the average quarrying per month should also be fixed at only 200 lorry loads and not the uniform principle of 7 lorry loads per day. On that basis he refixed the taxable turnover in respect of each year. He also considered that since there appeared to be no wilful intention on the part of the petitioner to suppress any turnover a nominal penalty would be sufficient. Accordingly he reduced the penalty to 20 per cent of the tax payable in the turnover predetermined by him. On a further appeal the Tribunal while confirming the finding that there were sales and the quantum as fixed by the AAC reduced the penalty to Rs. 50/- per year. 2. Accordingly he reduced the penalty to 20 per cent of the tax payable in the turnover predetermined by him. On a further appeal the Tribunal while confirming the finding that there were sales and the quantum as fixed by the AAC reduced the penalty to Rs. 50/- per year. 2. In these petitions, the learned council for the petitioners strenuously contended that what all happened in this case was after the quarry right was taken over by him, finding that there were number of squatters in the quarry who would not move out and who could not be removed allowed them to quarry themselves and whenever the quarried stones are removed, he charged at a uniform rate of Rs. 2.25 per lorry load as seigniorage fees and that in those circumstances there were no sales at all and that therefore there was no liability on him to be assessed. In this connection he relied on the certificate issued by the Karam of the village and the affidavits filed by the labourers who are said to have actually quarried. In the certificate given by the karnam it is said that the petitioner was never engaged in quarrying himself and that he allowed those who were hereditarily doing that job in that work of quarrying the stones and permitted the quarried stones to be removed after collecting what he terms as licence fees. This certificate was not produced before the Assessing Officer and was not relied on by the AAC when it was produced by him for the first time. We do not also find that this certificate in any way support the case of the petitioner in his contention that there was no sale of the quarried jelly by him in favour of third parties. On the other hand, this clearly shows that whenever he himself did not quarry and sell the jelly, he allowed third parties to engage their own labours, quarry jelly and pay for every lorry load of quarried jelly removed at a particular charge. The affidavits filed by the labourers also are to the same effect. 3. On the other hand, this clearly shows that whenever he himself did not quarry and sell the jelly, he allowed third parties to engage their own labours, quarry jelly and pay for every lorry load of quarried jelly removed at a particular charge. The affidavits filed by the labourers also are to the same effect. 3. The next question therefore to be considered is even if the facts were that the petitioner himself did not quarry but allowed certain other third parties to employ the iron labour and quarry stones and charged the third parties with respect to every load of the stones quarried, was there a sale of the stones quarried. So far as the charges levied are concerned, there is no evidence to show that he was levying only a seigniorage fee of only Rs. 2.25 per lorry load but the finding of the Assessing Officer and the Tribunal was that he might have received at the rate of Rs. 55/- per lorry load. We are unable to interfere with this finding of the authorities below. We are of the view that on these facts there was a sale of the quarried stones to the third parties by the petitioner who is liable to be assessed to sales-tax. 4. A similar question arose for consideration with reference to the right to remove sand in S. Venkatraman vs. State of Madras, That was a case where the assessee acquired the right of removing sand from certain areas of the Cooum river in a public auction. He subsequently permitted third parties requiring sand to remove the same on payment of Rs. 1.50 per lorry load. It was contended by the assessee that there was no sale of sand because he had only sublet his right of removal of sand to such of those third parties and that such a transaction was in nature of a quarrying contract which was exempted under the Government Notification. This Court held that it did not amount to a quarrying contract and that it was really sale of the sand also not a sub-lease of a right acquired by the petitioner. The ratio of this decision is clearly applicable to this case. This Court held that it did not amount to a quarrying contract and that it was really sale of the sand also not a sub-lease of a right acquired by the petitioner. The ratio of this decision is clearly applicable to this case. The learned counsel for the petitioner tried to distinguish this case saying that even in that case the learned Judges have observed that if the right conferred on the third parties was a quarrying contract that would not amount to a sale and in this case what was given to the third parties was a quarrying contract. The transaction that had taken place is only one of the methods in which the petitioner could have sold the stones quarried. Instead of he himself employing his own labour, cutting and removing the stones and then selling them, he allowed third parties to cut and pay for the stones as per the quantities they removed from the quarry. Further the right conferred on the petitioner in the proceedings of the collector of Madurai shows that he had no right to sublease or assign or transfer the right to quarry. In those circumstances, we are of the view that there was really a sale of the quarried stones and not an assignment of the quarrying right itself. The learned counsel, in this connection referred to the meaning of the word 'quarrying' given in the Law Lexicon by Vekataramaiya, Volume 2, pages 1322 and 1323. We do not find any assistance in the meaning given in these pages to support the contention of the petitioner as to what he gave to the third parties was only a quarrying right on payment of a seigniorage fee and not a sale itself. The learned counsel also referred to the decision of the Supreme Court in Ananda Behera vs. State of Orissa (SC). In that case, the sale of a right to catch and carry away fish in specific portions of the lake over, a specified future period was held to amount to a licence to enter on the land coupled, with a grant to catch and carry away the fish and as such it is a 'profit a prendre' which is regarded in India as a benefit that arises out of the land and as such is immovable property. We are wholly at a loss to see how this decision has any bearing on the question for consideration in this case. If the question for consideration was whether the sale of the quarry right to the petitioner by the Government was a right in immovable property requiring any registration or otherwise, this decision might have been of some relevance, but with reference to the transaction between the petitioner and third parties, this decision could not be pressed into service. For the foregoing reasons, we are unable to interfere with the order of the Tribunal so far as the determination of the taxable turnover is concerned. 5. Coming to the question of penalty, though the AAC also held that the assessment orders were made only under S. 12(3), we are unable to accept this finding so far as asst. yrs. 1962-63 to 1965-66 are concerned. Only for the asst. yr. 1966-67 there could have been an assessment order under S. 12(3). For the other assessment years, there could have been only an assessment under S. 16 of the Act. In a number of cases it had been held that the finding that there was a wilful suppression of a taxable turnover is necessary in order to attract the penalty provision under S. 16(2). In this case, though the petitioner did not produce any of his account books he was all along contending that the transaction was not a sale and that therefore he was not liable to be assessed to sales-tax. there is no finding by any of the authorities in this case that the petitioner lacked bona fides in this connection. Therefore, the penal provision of S. 16(2) had not been attracted in this case. Accordingly we are setting aside the penalty of Rs. 50/- levied on the petitioner in respect of 1962-63 to 1965-66. As already stated, even the Assessing Officer did not levy a penalty for 1966-67. Therefore, we only confirm the assessment and not the penalty levied. 6. The learned counsel for the petitioner contended at this stage that the entire turnover even if it is a sale is exempt under Government Notification G.O.Ms. No. 976 Revenue dt. 28th March, 1959 which exempted sales of earth, gravel, laterite, matal, sand and jelly involved in the execution of quarrying contracts for the supply of these articles. 6. The learned counsel for the petitioner contended at this stage that the entire turnover even if it is a sale is exempt under Government Notification G.O.Ms. No. 976 Revenue dt. 28th March, 1959 which exempted sales of earth, gravel, laterite, matal, sand and jelly involved in the execution of quarrying contracts for the supply of these articles. It is not every sale of gravel, metal and sand that is exempt from tax under this provisions. It must be involved in the execution of quarrying contract for the supply of these articles. The petitioner did not raise this point either before the Assessing officer or before the Tribunal. They had also no occasion to consider this point. We are not permitting the petitioner to raise this point at this belated stage. Accordingly the petitions fail and are dismissed, except to the extent of cancellation of the penalty indicated above, with costs. Counsel's fee Rs. 150/- in each case.