Judgment :- THANIKKACHALAM, J. The State is the petitioner. The Fertilisers and Chemicals Travancore Limited is the assessee. According to the assessing officer, there was omission to report the correct taxable turnover in the returns for the months in which taxable sales took place and consequently, the failure to pay the tax due on such turnover along with the returns on the prescribed dates, attracts the penalty under section 12(5)(ii) of the Tamil Nadu General Sales Tax Act. The assessee explained that section 12(5)(ii) enables the department to levy penalty only in the case where the assessee fails to submit the prescribed returns within the prescribed time. In fact, the assessee has submitted their returns regularly. The monthly turnovers of mixtures used to be included in the returns, but they have shown them as exempted turnover. This was because the sales turnover of mixtures is not taxable in full. According to the assessee, they have reported the current taxable turnover before completing the final assessment and paid the balance of tax due from them voluntarily even before the assessment was taken up. Therefore, it was submitted that there was no failure on the part of the assessee to submit any returns or disclose any turnover and that therefore, the penalty under section 12(5)(ii) of the Act cannot be levied. 2. However, the assessing officer pointed out that the assessee omitted to include a huge taxable turnover of Rs. 1, 06, 40, 054 in the monthly returns and failed to pay the tax due thereon on the monthly due dates. The difference of tax was paid by the assessee on September 18, 1981, only, i.e., more than five months after the close of the year on March 31, 1981. Hence the penalty is exigible under section 12(5)(ii) of the Act. Accordingly the assessing officer levied penalty of Rs. 76, 663 and surcharge of Rs. 3, 833 and additional tax of Rs. 15, 305, in all Rs. 95, 801. On appeal, the Appellate Assistant Commissioner confirmed the penalty levied by the assessing officer. However, on further appeal, the Tribunal accepted the explanation offered by the assessee and cancelled the penalty levied by the authorities below. This cancellation was also made after taking into consideration the decision rendered by the Tribunal in the case of the same assessee in T.A. No. 1259 of 1982 dated February 8, 1983. 3. However, on further appeal, the Tribunal accepted the explanation offered by the assessee and cancelled the penalty levied by the authorities below. This cancellation was also made after taking into consideration the decision rendered by the Tribunal in the case of the same assessee in T.A. No. 1259 of 1982 dated February 8, 1983. 3. Aggrieved the department is in revision before this Court. The learned Additional Government Pleader (Taxes) submitted that the Tribunal was not correct in cancelling the penalty levied by the authorities below under section 12(5)(ii) of the Act. It was further submitted that the facts on record would go to show that the returns were filed in time, but in the returns submitted there was incorrect and incomplete particulars and therefore, the penalty is exigible under section 12(5)(iii) of the Act. It was further submitted that the assessee used to file monthly returns and for some of the months returns were not filed before due dates and the tax due thereon was also not paid along with the returns, and therefore, the penalty is exigible under section 12(5)(iii) of the Act. According to the learned Additional Government Pleader (Taxes), even if the assessee is said to have paid the entire tax due, even earlier to the assessment, was taken out for conclusion, inasmuch as the tax was not paid along with the monthly returns, penalty under section 12(5)(ii) of the Act cannot be avoided. The learned Additional Government Pleader (Taxes) further submitted that the explanation offered by the assessee for the failure to furnish correct particulars in the returns is not acceptable. Lastly it was submitted that without assigning proper reason the Tribunal cancelled the penalty levied by the authorities below. On the other hand, the learned counsel appearing for the assessee, while supporting the order passed by the Tribunal, submitted that the assessee filed revised returns and also paid the tax in its entirety even before the completion of the assessment and therefore, the penalty under section 12(5)(iii) of the Act on the basis of section 12(5)(ii) of the Act is not possible. Learned counsel further submitted that the tax paid before completing the assessment was accepted by the department. According to the learned counsel, some negligible mistakes occurred in filing the returns since the assessee has got to gather information from various departments. Learned counsel further submitted that the tax paid before completing the assessment was accepted by the department. According to the learned counsel, some negligible mistakes occurred in filing the returns since the assessee has got to gather information from various departments. Learned counsel further submitted that after obtaining such information from the branches, the defects were rectified and tax due thereon was paid before the assessment was completed by the assessing officer. Therefore, it was submitted that the penalty is not exigible in the case of the assessee. 4. We have heard the rival submissions. According to the assessing officer, there was omission to report the correct taxable turnover in the returns for the months in which the taxable sale took place and consequently the failure to pay the tax due on such turnover along with the returns on the prescribed dates, attracts the penalty under section 12(5)(ii) of the Tamil Nadu General Sales Tax Act. The fact remains that the returns were filed in time. Therefore, there to (sic) only defects in filing the returns and hence the penalty under section 12(5)(ii) of the Act is possible. But, in the present case, the facts on record would go to show that the monthly returns were filed in time, but there were some defects in filing the returns. According to the assessing officer, the assessee omitted to include huge net taxable turnover of Rs. 1, 96, 40, 054 in the monthly returns and failed to pay the tax due thereon on the monthly due dates. The difference of tax was paid by the assessee on September 18, 1981, i.e., more than five months after the close of the year on March 31, 1981. 5. The assessee explained that the assessee was submitting the returns regularly and monthly returns were filed before the due dates. The monthly turnover of sales of mixtures used to be included in the returns, but it was shown by the assessee as an exempted turnover because the sales turnover of mixture is not taxable in full. According to the assessee, their practice was to work out the yearly average value of components locally purchased and consumed for mixture production every year and thereby find out the taxable turnover on mixture sales. According to the assessee, their practice was to work out the yearly average value of components locally purchased and consumed for mixture production every year and thereby find out the taxable turnover on mixture sales. The assessee has reported the current taxable turnover before the final assessment and paid the balance of tax due from the assessee voluntarily even before the assessment was taken up. The assessee submitted that no difference in taxable turnover was detected at the time of the check of accounts. Therefore, there was no failure on the part of the assessee to submit the returns in time or disclose any turnover. The monthly returns have been accepted by the department and revised returns filed in form II was also accepted and the tax due thereon was also paid before completing the assessment. 6. The delay in furnishing the correct particulars was stated to be due to the fact that the assessee has got to obtain particulars from the various branch offices of the department and after obtaining the particulars from the branch offices, revised return was filed and the tax due thereon was also paid before the assessment was completed. The facts on record would go to show that the assessee filed the returns in time, but the returns were incomplete and incorrect. Therefore, if at all penalty is exigible, penalty can be levied only under section 12(5)(iii) of the Act. In the present case, penalty under section 12(5)(ii) of the Act for the delay in filing the returns, is not possible. Inasmuch as the revised returns was filed and the difference of tax due thereon was also paid before completing the assessment, the penalty under section 12(5)(iii) of the Act is also not possible. In that view of the matter, we consider that there is not infirmity in the order passed by the Tribunal in cancelling the penalty levied by the authorities below under section 12(5)(ii) of the Act. 7. In the result, this revision is dismissed. No costs.