Judgment :- P. THANGAVEL, J. This tax case (appeal) is filed by the assessee against the order of the Joint Commissioner (SMR), Commercial Taxes, Madras-5, dated January 6, 1995 in Ref. No. M3/112553/93. 2. The assessee reported a total and taxable turnover of Rs. 7, 00, 923 under the Central Sales Tax Act, 1956 for the assessment year 1991-92. The assessing officer, after perusing the relevant records, determined the total and taxable turnover of the assessee at Rs. 7, 00, 923 out of which Rs. 6, 49, 380 was determined to be assessed at 4 per cent and Rs. 51, 543 was determined to be assessed at 10 per cent. 2A. The place of business of the assessee was inspected by the Enforcement Wing of the Commercial Tax Department on September 18, 1991 and note books and one file containing sale bills were recovered. The inspection revealed that the assessee had not registered the business carried on by it till the date of inspection and the said business was registered only after the date of inspection by getting certificates both under the Tamil Nadu General Sales Tax Act, 1959 and Central Sales Tax Act, 1956 3. Aggrieved at the common order of the assessing officer, the assessee preferred appeals in Ap. No. 43193 and Ap. No. 14193 CST and the same was considered together by the Appellate Assistant Commissioner, Kancheepuram. 4. After taking into consideration the completion of assessment by the Commercial Tax Officer, Porur Assessment Circle, up to 1987-88 after the formation of new assessment circle with effect from August 1, 1986, the non-cancellation of the registration of the assessee already made and also the payment of renewal fees with penalty at the time of inspection by the enforcement wing on September 18, 1991 for a period of four years, for which registration certificates were not obtained under the abovesaid Acts, the appellate authority held that the assessee cannot be treated as an unregistered dealer. He, therefore, set aside the levy of higher rate of tax and remitted the matter back to the assessing officer to examine and allow concessional rate of tax at 3 per cent if the forms are valid. He, therefore, set aside the levy of higher rate of tax and remitted the matter back to the assessing officer to examine and allow concessional rate of tax at 3 per cent if the forms are valid. The appellate authority had also taken note of the returns and books produced by the assessee before the assessing officer, and had accepted the same and held that the levy of penalty under section12(3) of the Act, cannot be sustained since there was no assessment under section12(2) of the Act and accordingly set aside the levy of penalty of Rs. 1, 29, 627 under section12(3) of the Act. Since the assessee had submitted the monthly returns form A1 for the months of April, 1991 to August, 1991 in November and December, 1991, levy of penalty under section12(5) (ii) of the Act was held sustainable by the appellate authority. But, taking into consideration the payment of tax of Rs. 1, 73, 254 on January 8, 1991 itself for the month of November, 1991 and also payment of tax of Rs. 6, 77, 000 at the time of inspection on September 18, 1991, the appellate authority set aside the levy of penalty of Rs. 7, 362 levied under section12(5) (ii) of the Act and remitted the same back to the assessing officer with a direction to verify the payment details and the tax paid in advance to give necessary relief to the assesse while calculating the penalty under section 12(5) (ii) of to delay in filing the monthly returns. In fine, the appellate authority directed the assessing officer to give concessional rate of tax, treating the assessee as a registered dealer and also set aside the levy of penalties under section12(3) of the Act as well as under section 12(5) (ii) of the Act read with section9(2A) of the Central Sales Tax Act, thereby partly allowing and partly remanding both the appeals. 5. 5. The Joint Commissioner (CT) III (SMR) had taken suo motu revision of the order of the Appellate Assistant Commissioner and concluded that the inspecting officers have no power to accept the registration fees along with penalty after due date as provided under sub-rule (9-A) of rule 24 of the Tamil Nadu General Sales Tax Rules, 1959 (hereinafter referred to as "the Rules") and therefore die Appellate Assistant Commissioner was not correct in confirming to the conclusion that the assessee has to be treated as a registered dealer in view of the fact of collection of registration fees along with penalty at the time of inspection. Accordingly the order of the assessing officer was held to be correct and the same was restored after setting aside the order of the Appellate Assistant Commissioner in both the appeals. 6. A notice, calling for the objection of the assessee, was issued and after considering the objections raised by the assessee, the Joint Commissioner had come to the conclusion that levy of 50 per cent of the tax lost as penalty under section12(3) of the Act read with section9(2A) of the Central Sales Tax Act will meet the ends of justice and accordingly reduced the penalty to 50 per cent from one and half times. In the result the suo motu revisional authority ordered restoration of Rs. 6, 310 under the Central Sales Tax Act, Rs. 39, 590 under the Act, penalty of Rs. 7, 352 under section12(5) (ii) of the Act, Rs. 5, 271 under section9(2A) of the Central Sales Tax Act read with section12(5) (ii) of the Act and penalty of Rs. 43, 209 under section12(3) of the Act and Rs. 29, 348 under section9(2A) of the Central Sales Tax Act read with section12(3) of the Act with attendant surcharge, additional surcharge and additional sales tax as are applicable in accordance with law. Aggrieved at the said order of the suo motu revisional authority, the assessee has come forward with this appeal. 7. We have carefully considered the submissions made by both the sides. The fact remains that the assessee was a registered dealer on the file of the Commercial Tax Officer, Alandur Assessment Circle, from the year 1982-83 under the Act as well as under the Central Sales Tax Act. 7. We have carefully considered the submissions made by both the sides. The fact remains that the assessee was a registered dealer on the file of the Commercial Tax Officer, Alandur Assessment Circle, from the year 1982-83 under the Act as well as under the Central Sales Tax Act. Admittedly Alandur Circle was bifurcated during the year 1986 and a new assessment circle by name Porur Assessment Circle was formed. The assessee came under the jurisdiction of Commercial Tax Officer, Ambattur Assessment Circle, in the assessment year 1987-88 and thereafter under the new Assessment Circle formed at Koyambedu. The assessee who had registered its dealership under both the abovesaid Acts up to 1987-88, had not renewed the same under the said Acts for four years from 1988-89 to 1991-92 for carrying on its abovesaid business and this was found out by the Enforcement Wing Officers during the course of inspection of the place of business of the assessee on September 18, 1991. The fact remains that the assessee had paid registration fees and penalty for not renewing its registration certificates under both the Acts for the abovesaid four years and the dealership of the assessee was registered for four years on September 18, 1991. 8. It is pertinent to point out that a dealer can pay the renewal fees for renewing the registration along with penalty on or before June 30 of the year for which the registration is to be renewed as per sub-rule (9-A) of rule 24 of the Rules. No provision of law or settled legal position was brought to our notice to the effect that registration fee and penalty can be paid by the assessee and collected by the department for legalising the non-registration contrary to the abovesaid Rules. It cannot, therefore, be said that the suo motu revisional authority has come to any conclusion contrary to the Rules that the appellate authority had committed an error in holding that the assessee has to be deemed to have registered its dealership for the abovesaid four years under both the Acts in view of the collection of registration fees along with the penalty prescribed therefor. Therefore, we hold that the order of the suo motu revisional authority has to be sustained in that respect. Therefore, we hold that the order of the suo motu revisional authority has to be sustained in that respect. In view of the abovesaid reason the order of suo motu revisional authority has also to be sustained subject to the levy of penalty. 9. Levy of penalty under section12(5) (ii) of the Act read with section9(2A) of the Central Sales Tax Act for belated submission of monthly returns cannot be held to be incorrect in view of the circumstances stated supra. Learned counsel for the assessee, though in advanced the arguments with half-heart on other aspects, has vehemently contended that the levy of penalty under section12(3) of the Act, cannot be sustained since the total and taxable turnover reported at Rs. 7, 00, 923 has been accepted by the assessing officer and since it is not a best of judgment assessment. In support of such contention, learned counsel for the assessee brought to the notice of this Court the decision in State of Madras v. Jayaraj Nadar & Sons wherein the apex Court has held that penalty can be levied under section12(3) of the Madras General Sales Tax Act 1959, if the dealer has submitted an incomplete or incorrect return only and if the assessment had to be made to the best of his judgment by the assessing authority. It is also held that where certain items which are not included in the turnover are discovered from the dealer's own account books and the assessing authority includes these items in the dealer's turnover, the assessment cannot be regarded as based on best judgment and penalty cannot be levied in respect of such items. The apex Court has further held that where account books are accepted along with other records, there can be no ground for making a best judgment assessment. It has also been held in State of Tamil Nadu v. Indian Silk Traders that sub-sections (2) and (3) of section12 of the Act operate in a particular field where the assessing authority resorts to best of judgment assessment and that sub-sections (4) and (5) of section 12 operate in a different field where the assessment is made on the basis of the books of account rejecting the return submitted by the assessee as incorrect and incomplete. It was further held in that decision that once an assessment is made on the basis of the books of accounts the penalty under section12(5) of the Act will be attracted, and that while the element of deliberateness, wilfulness or blameworthy conduct on the part of the assessee may not he necessary for invoking section12(5) of the Act, the bona fades of the assessee have to be gone into before imposing penalty. It was also held in the said decision that the guidelines given by the Supreme Court in Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax have to be kept in mind by the assessing authority and that the facts of each case have to be carefully analysed before coming to the conclusion whether, a particular return is incorrect or incomplete and whether the assessee returned an incomplete or incorrect return, more with a view to postpone the tax legitimately due to the Government, or under a bona fade belief that his return was in accordance with law. 10. If the principles laid down in the decisions cited supra are taken into consideration, it is evident that penalty can be levied under section12(5) (ii) of the Act read with section9(2A) of the Central Sales Tax Act, if assessment is made on the basis of books of accounts or for the belated submission of monthly returns, while penalty under section 12(3) of the Act, can be levied based on best of judgment assessment made under section12(2) of the Act. 11. Learned counsel for the assessee fairly concedes that the abovesaid contention was not raised before the suo motu revisional authority while notice was issued and opportunity was given for making submission of the assessee. At the same time it was contended that the question whether penalty can be levied under section12(3) of the Act, while the total turnover of reported by the assessee was accepted by the assessing authority, is a question of law and the same can be raised even at this stage. It is evident from a perusal of the Commissioner that the assessee has taken a plea before the Appellate Assistant Commissioner that penalty under section12(3) of the Act cannot be levied except for best of judgement assessment, though such plea has not been taken before the suo motu revisional authority. It is evident from a perusal of the Commissioner that the assessee has taken a plea before the Appellate Assistant Commissioner that penalty under section12(3) of the Act cannot be levied except for best of judgement assessment, though such plea has not been taken before the suo motu revisional authority. Since it is a question of law raised by the assessee, we are of the opinion that such submission has to be considered to come to a conclusion as to whether there are circumstances to levy penalty under section12(3) of the Act. For the said purpose, it has to be decided whether the assessing authority has accepted the total and taxable turnover reported or whether he has determined the taxable turnover under best of judgment assessment after rejecting the returns submitted by the assessee. This part of the contention of the assessee has to be gone into by the suo motu revisional authority to decide the levy of penalty under section12(3) of the Act. To consider this aspect and other aspects that are required to be decided in this matter, we are of the opinion that the matter should be remitted back to the authority below to reconsider the abovesaid submission made by the learned counsel for the assessee and pass orders in accordance with law. 12. Accordingly the order of the suo motu revisional authority is set aside in part and the matter is remanded to the said authority to consider the abovesaid point and pass orders in accordance with law. Accordingly the appeal shall stand allowed in part. In the circumstances of the case, there will be no order as to costs.