Judgment :- THANIKKACHALAM, J. The department is the petitioner herein. The assessee did not file the returns in time and the returns filed by the assessee were defective and hence the assessing officer rejected the accounts as well as the returns and on the basis of the best judgment determined the turnover and also levied penalty under section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as "the Act"). On appeal the Appellate Assistant Commissioner confirmed the penalty levied under section 12(5)(iii) of the Act and reduced the quantum of penalty. 2. On further appeal, the Appellate Tribunal following the decision of this Court reported in the case of Devendran and Company v. State of Tamil Nadu 1983 (53) STC 229 deleted the penalty levied by the authorities below. It is against that order, the department is in revision before us. 3. Learned Additional Government Pleader for Taxes submitted that when the assessee failed to submit their returns in time penalty is warranted under section 12(4)(ii) of the Act. The learned counsel appearing for the assessee who supported the order passed by the Tribunal drawn our attention to the decision of this Court reported in the case of State of Tamil Nadu v. O. A. Abdul Samak Sahib Sons 1984 (57) STC 68 [S.L.P. (Civil) No. 12889 of 1984] wherein this Court has held as follows: "Where the assessing authority not only rejected the return filed by the assessee as incorrect and incomplete but also rejected the accounts of the assessee and proceeded to make a best judgment assessment not on the basis of the book entries, that the assessment could not be said to have been made under section12(4) of the Act, and the penalty under section12(5) of the Act could not be justified." Against the above cited decision, the Supreme Court rejected the S.L.P. filed as can be seen from [1991] 83 STC FRSC 18, Sl. No. 63. In view of the abovesaid decision of the Supreme Court, we hold that there is no infirmity in the order of the Tribunal in cancelling the penalty levied under section 12(5) of the Act. Accordingly, the revision is dismissed. No costs.