ORDER MRS. PRABHA SRIDEVAN, J. - The assessee is a dealer of kerosene. For the assessment year 1995-96, its return showed a loss of Rs. 20,74,999. The assessing officer found that the huge loss under the first sales is unbelievable and indicates sales omissions. Therefore, on the basis of the net purchase value, he added profit of five per cent and estimated the sales turnover. Against that an appeal was filed, which was confirmed by the appellate authority and before the Tribunal also, the assessee failed to succeed. Hence, the present appeal. In this revision, the following substantial questions of law have been framed. "(1) Whether, in the facts and circumstances, the Tribunal being the highest fact-finding authority has erred by merely affirming the order of the first appellate authority by omitting to take into account the audited balance sheet and trading and profit and loss account duly filed during the hearing of the appeal before the first appellate authority and thus formed part of the appeal records ? (2) Whether the Tribunal has erroneously concluded that there was a huge loss merely based upon the rough trading account furnished for the Chennai branch alone in which value of stock transfer made to Bangalore and Pondicherry as well as proportionate customs duty and other import charges and other expenses had been omitted to be included ? (3) Whether the Tribunal has erred in not following the settled law that mere gross profit or loss cannot be the sole reason for rejecting the accounts when there was no purchase or sale omission ? (4) Whether the consequent penalty levied as affirmed by the Tribunal is valid in law ?" Questions 1 to 3 : The learned counsel for the petitioner submitted that the audited balance-sheet, trading and profit and loss accounts were duly filed during the hearing of the appeal, but the same were not taken into account. The Tribunal, which is the highest fact finding authority, ought not to have merely affirmed the order of the first appellate authority. The learned counsel submitted that in any event there was no justification to levy the penalty under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 when the estimated sales turnover was arrived at only on the basis of the records produced by the assessee showing a loss of Rs. 20,74,999. The learned counsel submitted that in any event there was no justification to levy the penalty under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 when the estimated sales turnover was arrived at only on the basis of the records produced by the assessee showing a loss of Rs. 20,74,999. The learned Government Advocate submits that the order passed by the Tribunal warrants no interference. The assessing authority found that when the kerosene is a scarce commodity the loss recorded, that too for the amount of Rs. 20,74,999, gave raise to suspicion and it is in these circumstances an additional profit of five per cent is made for arriving at the estimated turnover. It is specifically recorded by the appellate authority that "the appellant did not furnish any details or reasons for the loss incurred by them". The Appellate Assistant Commissioner fairly noted that the gross loss and excess profit will not automatically lead to sales or purchase omission, but there must be some reason and that the assessee did not give any reason for the extremely low price at which they had sold the kerosene, when compared to the cost of purchase. As such, in the absence of documentary evidence or any explanation, the Appellate Assistant Commissioner confirmed the assessment. Before the Tribunal, the same grounds were reiterated. In these circumstances, we are unable to accept the submission made by the learned counsel for the petitioner that audited balance-sheet and trading and profit and loss accounts were filed during the hearing of the appeal. If so, at least before the Tribunal, the assessee would have pointed out that these documents were not adverted to by the Appellate Assistant Commissioner. This court in Vel Metal Industries v. State of Tamil Nadu [1998] 68 STC 55 held that the mere fact that only one per cent profit was shown, which was trifling, would not be a sufficient ground for coming to an irresistible conclusion that there had been suppression of sales. The relevant portion reads as follows : "... though the percentage of profits, declared as one per cent, was considered 'trifling' by the assessing officer, this was not a sufficient ground for coming to an irresistible conclusion that there had been suppression of sales on the part of the petitioner." The above referred to case will not apply to the present case. though the percentage of profits, declared as one per cent, was considered 'trifling' by the assessing officer, this was not a sufficient ground for coming to an irresistible conclusion that there had been suppression of sales on the part of the petitioner." The above referred to case will not apply to the present case. The authorities have held that for kerosene, which is a scarce commodity, such a huge loss could not have been recorded unless there was a sale suppression and also there was no explanation, in spite of opportunity being given, as to why the commodity was sold at such a low price compared to the purchase price. These are pure questions of fact and we see no error in the decision that is arrived at by the appellate authority, since there is no material to show that sufficient documents were produced before the appellate authority. Hence, questions 1 to 3 are rejected. As regards the fourth question, the estimated sales turnover was arrived at only on the basis of the records produced by the assessee. In this regard the learned counsel for the petitioner relies on Appollo Saline Pharmaceuticals (P.) Ltd. v. Commercial Tax Officer (FAC) reported in [2002] 125 STC 505 wherein this court has held as under : "7. Though other sub-sections of section 12 were amended by the State Legislature subsequent to the date of the judgment in the case of Jayaraj Nadar & Sons [1971] 28 STC 700 (SC), section 12(1) and 12(2) have remained in the same form. The legislative intention therefore, except during the period December 3, 1979 to May 27, 1993 and on and after April 1, 1996 must be taken to be to, permit the levy of penalty only in case where the assessment is a best judgment assessment made on an estimate and not by relying solely on the accounts furnished by the assessee in the prescribed return. On and after April 1, 1996 an Explanation has been added below section 12(3) which requires the turnover relating to the tax assessed on the basis of the accounts of the assessee, to be disregarded, while determining the turnover on which the penalty is to be levied under section 12(3). 8. On and after April 1, 1996 an Explanation has been added below section 12(3) which requires the turnover relating to the tax assessed on the basis of the accounts of the assessee, to be disregarded, while determining the turnover on which the penalty is to be levied under section 12(3). 8. The assessments for the assessment years 1993-94 and 1994-95 which were assessments made on the basis of the accounts, and not based on any other material and were not estimates, have therefore, to be regarded as assessments made under section 12(1) to which the penal provisions of section 12(3) are not attracted. The levy of penalty for those two assessment years is set aside." As rightly submitted by the learned counsel for the petitioner, once the books of account have been produced and the assessment is made thereon, then the assessment could not be regarded as best judgment assessment. Following Appollo Saline case [2002] 125 STC 505 (Mad) this tax case revision is allowed only in regard to levy of penalty under section 12(3)(b). In the result, the tax case appeal is partly allowed. No costs.