Judgment :- THANIKKACHALAM, J. The assessee is the petitioner herein. The assessee is the proprietor of M/s. Balaji and Company, dealers in cane jaggery and palm jaggery, at Sattur. He filed a return for the assessment year 1984-85, disclosing total turnover of Rs. 7, 24, 611 and taxable turnover of Rs. 7, 21, 355 respectively. The Deputy Commercial Tax Officer determined the total and taxable turnovers as Rs. 8, 29, 912 and Rs. 8, 26, 635 respectively, and while doing so levied penalty under section12(3) of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as "the Act") to the extent of Rs. 7, 298. On appeal, the Appellate Assistant Commissioner granted a relief of tax of Rs. 400 for the turnover of Rs. 800 and reduced the penalty from Rs. 7, 298 to Rs. 4, 865. Aggrieved, the assessee filed a second appeal before the Appellate Tribunal, challenging the turnover for Rs. 97, 300 which is taxable at 5 per cent and the penalty of Rs. 4, 865 sustained by the Appellate Assistant Commissioner. 2. The place of business was inspected on March 29, 1985, by the enforcing officers. A verification of the actual stock with the book stock, revealed a deficit of 25 kgs. of jaggery. The officers secured a triplicate copy bought note numbered as 36 dated March 28, 1985. At the time of verification of accounts, the assessee submitted that he could not produce the original of the bought notes and the form XX delivery note accompanied the purchase. The bought note No. 36 would reveal that jaggery was purchased for Rs. 2, 700. But the assessee could not produce bought note numbers 1 to 35. According to the assessee, these books were given for binding, and therefore he could not produce those books before the assessing authority. The assessing authority completed the assessment on the basis of best judgment by multiplying the sum of Rs. 2, 700, as noted in the bough note No. 36, into 36 times which comes to Rs. 97, 200. The price of 25 kgs. of cane jaggery as on March 29, 1985, was taken as Rs. 100. Thus, the disputed turnover comes to Rs. 97, 300. Treating the abovesaid amounts as suppressed turnover, the assessing officer levied a penalty of Rs. 7, 298 under section12(3) of the Act. 3. 97, 200. The price of 25 kgs. of cane jaggery as on March 29, 1985, was taken as Rs. 100. Thus, the disputed turnover comes to Rs. 97, 300. Treating the abovesaid amounts as suppressed turnover, the assessing officer levied a penalty of Rs. 7, 298 under section12(3) of the Act. 3. Before us, the learned counsel appearing for the assessee, submitted that the estimate adopted by the authorities below for arriving at the figure of Rs. 97, 200 has no basis. According to the learned counsel, the method adopted by the assessing officer by multiplying Rs. 2, 700 into 36 times is on the higher side. There is no evidence on record that the jaggery purchased for Rs. 97, 200 would have been sold for the same amount and therefore, it was submitted that the method of assessment done by the authorities below, is not in line with the established principles of law, in the matter of making best judgment assessment. 4. On the other hand, Mr. A. K. Gopinath, learned Government Advocate, submitted that the assessee has already filed a return disclosing the turnover, in accordance with the account books maintained by him, that on inspection, it was found out that the assessee has suppressed certain sales, that the inspection revealed that the assessee had certain bills for purchasing jaggery outside the books of account, that the enforcing authorities have recovered a bought note No. 36 dated March 28, 1985, which would go to show that jaggery was purchased for a sum of Rs. 2, 700 and that since the assessee suppressed the purchase relating to 35 bills, the assessing officer estimated the suppressed turnover, by multiplying Rs. 2, 700 into 36 times to the tune of Rs. 97, 200. According to the learned Government Advocate, this method in the prevailing circumstances, is the best method to arrive at the suppressed turnover. 5. We have given our careful consideration to the rival submissions of the learned counsel on either side, on this point. Bill No. 36 (bought note No. 36) dated March 28, 1985, was recovered from the assessee. The assessee admitted that he was not having bought note numbers 1 to 35, since they were given for binding. Even bought note No. 36 is only a duplicate bill. This bill would go to show that there are purchases outside the books of account. The assessee admitted that he was not having bought note numbers 1 to 35, since they were given for binding. Even bought note No. 36 is only a duplicate bill. This bill would go to show that there are purchases outside the books of account. This bill would indicate that the assessee has purchased jaggery for Rs. 2, 700. Admittedly, prior 35 bills were not produced. Therefore, the assessing officer estimated that the turnover was suppressed to thee tune of Rs. 97, 200 by adopting the method of multiplying Rs. 2, 700 into 36 times. The assessee was unable to suggest any other method in the matter of finding out the suppressed turnover for the assessment year in question. In the absence of any evidence on the side of the assessee to show as to what method would be proper in estimating the suppressed turnover, we consider that the method adopted by the department in multiplying Rs. 2, 700 into 36 times, appears to be reasonable under these circumstances. Accordingly, we hold that the Tribunal was correct in confirming the suppressed turnover, as determined by the authorities below at Rs. 97, 200. Accordingly, we are not inclined to interfere with the findings given by the Tribunal, on this point. 6. What remains to be considered in this revision, is the penalty levied under section12(3) of the Act. Originally, the penalty was levied at Rs. 7, 298. The Appellate Assistant Commissioner, on appeal, reduced the penalty to Rs. 4, 865. On further appeal, the Tribunal, reduced the penalty to Rs. 2, 432. The assessee is in revision before this Court. The learned counsel for the assessee submitted that simply because addition was made on suppressed turnover, penalty is not exigible under section12(3) of the Act. According to the learned counsel, no definite finding was given by the assessing officer, with regard to the wilfulness in non-disclosure of account. The learned counsel for the assessee relied upon the following decisions, in order to support his contention that the penalty is not exigible : (1) S. G. Jayaraj Nadar & Sons v. State of Madras (2) Deputy Commissioner of Commercial Taxes v. Adam and Company. (3) Kathiresan Yarn Stores v. State of Tamil Nadu;. The learned counsel for the assessee relied upon the following decisions, in order to support his contention that the penalty is not exigible : (1) S. G. Jayaraj Nadar & Sons v. State of Madras (2) Deputy Commissioner of Commercial Taxes v. Adam and Company. (3) Kathiresan Yarn Stores v. State of Tamil Nadu;. On the other hand, the learned Government Advocate appearing for the department submitted that inasmuch as the assessee suppressed turnover, it would amount of furnishing a return with false information. After the inspection by the enforcement authorities, it was found that the assessee was purchasing jaggery which was not disclosed in the accounts. Bought note No. 36 dated March 28, 1985, was recovered which would go to show that the jaggery was purchased for Rs. 2, 700 under that bill. The assessing officer estimated the suppressed turnover by multiplying Rs. 2, 700 into 36 times, since bought note Nos. 1 to 35 were not produced by the assessee. When there is non-disclosure of turnover wilfully, by the assessee, the levy of penalty under section12(3) of the Act, cannot be said to be illegal. 7. We have seen that on the suppressed turnover, penalty was levied under section12(3) of the Act. According to the department, the assessee filed return which was incorrect. Therefore, penalty is exigible under section12(3) of the Act. In S. G. Jayaraj Nadar & Sons v. State of Madras this Court, while considering the provisions of section12(3) of the Madras General Sales Tax Act, has held "that an assessment may be partly under sub-section (1) and partly under sub-section (2), where part of the assessment is not based on estimate or best judgment, it is clearly not within the purview of sub-section (2) and, therefore, in respect of such part of the assessment, there will be a bar to the levy of penalty under sub-section (3)" The abovementioned decision has been confirmed by the Supreme Court in State of Madras v. S. G. Jayaraj Nadar & Sons, wherein while considering the provisions of section12(2) and (3) of the Madras General Sales Tax Act the Supreme Court held as follows : "Where account books are accepted along with other records there can be no ground for making a best judgment assessment. Hence, penalty under sub-section (3) cannot be levied. Hence, penalty under sub-section (3) cannot be levied. If certain items which have not been included in the turnover shown in the returns filed by the assessee are discovered from his own account books and the assessing authority includes those items in his total turnover, the assessment relating to those items cannot be regarded as based on best judgment." So also, while considering the provisions of section12(3) of the Act, this Court in Deputy Commissioner of Commercial Taxes v. Adam and Company has held as under : "......... that though the Deputy Commissioner had the right to look into the records and scrutinise the order of the assessing officer so as to correct it, if such a correction was necessary, it was doubtful whether he could assume that in every case where there was an increase in the assessable turnover as a result of the best judgment assessment made by the assessing authority, there had been a wilful suppression of sales turnover. Levy of penalty springs from the act which amounts to misconduct and being penal in nature ought not to be the product of any assumption. In the present case, the Deputy Commissioner was only reviewing the order of assessment which did not contain any direct or telling finding by the assessing authority that there was any wilful suppression of the assessable turnover. The Tribunal was therefore right in its view that the Deputy Commissioner exceeded the power to impose penalty." Similarly, a Full Bench of this Court, had an occasion to consider the provisions of section12(3) of the Act, in Kathiresan Yarn Stores v. State of Tamil Nadu and held as under : ".......... It cannot be said that the process of imposition of penalty is almost an automatic one whenever an estimate is made when it is found that no return has been filed or that the return filed did not indicate the turnover to the extent fixed on the basis of the best judgment basis. All the circumstances of the case will have to be carefully scrutinised and the question whether penalty should be imposed must be considered on the basis of the judicial determination of the question whether grounds exist for the imposition of such penalty. In order that penalty may be imposed, it must be possible first to come to the conclusion that there was actually turnover and further that turnover was not disclosed. In order that penalty may be imposed, it must be possible first to come to the conclusion that there was actually turnover and further that turnover was not disclosed. The mere fact of a best judgment assessment, particularly when the assessment is based on the inference flowing from the inability of the assessee to establish the case pleaded by him, will not be sufficient for the purpose of imposition of penalty, for the degree of proof required for the imposition of penalty is quite different from and is of a much higher order than that required for the purpose of making a best judgment assessment." 8. According to the facts, which have arisen in the case on hand, the assessing authority has not given any finding, with regard to the element of wilfulness in filing incorrect return. Unless such a finding is given definitely, penalty is not exigible, according to the judicial pronouncements cited supra. In the present case, the assessing officer has merely stated that "as the actual suppression is wilful, penalty under section12(3) of the Act is also levied." What is the element of wilfulness in filing incorrect returns and suppressing the turnover are not mentioned in the assessment penalty order. The order passed by the assessing officer is in contravention of the decisions of this Court as well as the Supreme Court, cited supra. Therefore, the penalty is not leviable in the present case, without a definite finding that an incorrect return was filed wilfully. In that view of the matter, the penalty levied under section12(3) of the Act is not exigible and therefore the same is deleted. 9. In the result, the revision filed by the assessee is allowed in part. No order as to costs. Petition partly allowed.