JUDGMENT T. L. VISWANATHA IYER, J. - The respondent was a dealer in minor forest produce at Konni in Pathanamthitta District, who had entered into an agreement with the Government for collection of such produce from their forests. He despatched some minor forest produce procured locally to one S. V. Ramalingam of Madurai for sale on consignment basis during the years 1972-73 and 1973-74. An assessment was completed under the Kerala General Sales Tax Act, 1963 (the Act) for the year 1972-73 without taking note of this consignment sale. A proposal was also made for completing the assessment for 1973-74, again without taking note of the consignment sale. But, on the basis of the information furnished at an inspection of the premises of S. V. Ramalingam by the Inter-State Investigation Cell, the order of assessment for 1972-73 was reopened under section 19 of the Act and an additional turnover of Rs. 52,140 was brought to assessment under section 5A as if the goods consigned to Madurai had not born tax within the State. The amount brought to tax in 1973-74 was Rs. 61,542. The respondent-assessee challenged the assessments in appeals before the Appellate Assistant Commissioner, who by a common order dated September 20, 1979, held that there was no liability for tax either under section 5 or section 5A of the Act in relation to the minor forest produce consigned and sold through S. V. Ramalingam. If he had stopped with this finding the order of the Appellate Assistant Commissioner would have passed muster and been beyond challenge. But he went further, set aside the orders of assessments, and remitted them back to the assessing authority for imposing penalty under section 19(2) of the Act. This was on the ground that the respondent-assessee had wilfully suppressed these transactions in the assessment proceedings. The assessee felt aggrieved by this direction and challenged it in separate appeals before the Appellate Tribunal, who by the common order dated May 30, 1990, allowed the appeals holding that section 34 dealing with the powers of the Appellate Assistant Commissioner conferred no power on him to direct imposition of penalty under section 19(2) while dealing with an appeal preferred by the assessee. The Revenue challenges this common order of the Tribunal in these tax revision cases. 2. The Revenue challenges this common order of the Tribunal in these tax revision cases. 2. After hearing counsel on both sides we find it unnecessary to deal with the question of law raised and dealt with by the Tribunal as to whether the Appellate Assistant Commissioner has power under section 34 of the Act to direct the assessing authority to impose penalty under section 19(2), as these tax revision cases can be disposed of on other premises. 3. The assessment for 1972-73 which was impugned before the Appellate Assistant Commissioner was one reopened under section 19. The Appellate Assistant Commissioner held on the facts that the turnover which was brought to assessment by the reopening, was not really liable to tax either under section 5 or section 5A. There was thus no escape of turnover which alone would have justified the reopening under section 19. Section 19(2) postulates imposition of penalty by the assessing authority only if he is satisfied that the escape from assessment was due to wilful non-disclosure of assessable turnover by the dealer. The basic condition precedent for section 19(2) to apply is the escape of turnover from assessment resulting in the reopening of the assessment and the levy of tax on the escaped turnover. In the light of the finding categorically entered by the Appellate Assistant Commissioner that there was no escape of any turnover from assessment, this essential condition of section 19(2) to operate does not exist and no question of levying and penalty under section 19(2) arises. The direction made by the Appellate Assistant Commissioner for the year 1972-73 was outside the purview of section 19(2) and liable to be vacated on this preliminary ground itself. 4. So far as the year 1973-74 is concerned, the order of assessment under challenge was the original order of assessment and not one made under section 19. It is true that in the course of the proceedings the assessing authority felt that the turnover of sales through S. V. Ramalingam was also liable to be brought to tax under the Act, and this resulted in the issue of a notice which though it purported, to be one under section 19, was really only a modified pre-assessment notice. The assessment that was made was not a reopened assessment, but the original assessment itself. The assessment that was made was not a reopened assessment, but the original assessment itself. Section 19(2) did not therefore apply to the assessment and the question of levying penalty thereunder did not arise. In the circumstances, the direction given by the Appellate Assistant Commissioner to impose penalty under section 19(2) for the year 1973-74 was without jurisdiction. The tax revision cases are therefore dismissed without however any order as to costs. Petitions dismissed.