Judgment T.S. Sivagnanam, J. The assessee is on revision as against the common order passed by the Sales Tax Appellate Tribunal (Additional Bench) Chennai 600 104 dated 09.11.2012 in STA Nos.94,149,146, 148 and 173 of 2005 for the assessment years 1997-98, 1998-99, 1999-2000,2000-2001 and 2001-2002 respectively, raising the following questions of law: 1. Whether in view of Section 4(2) of the Entry Tax Act, the Entry Tax paid by the petitioners did not form part of their taxable turnover? 2. Whether in view of the clarification issued by the Principal Commissioner and Commissioner of Commercial Taxes, in K.Dis.Act.Cell/IV/29951/1993 dated 13.05.1993, the Hon'ble Tribunal has erred in confirming liability to pay tax by the petitioners? 3. Whether the Hon'ble Tribunal has erred in confirming the imposition of penalty under Section 16(2) of the erstwhile Tamil Nadu General Sales Tax Act, 1959? 4. Whether the Hon'ble Tribunal has committed an error of law in unilaterally finding that the excess entry tax should have been recovered as penalty under relevant provision? 2. At the time of admission of these Tax Case (Revisions) on 29.11.2013, it was fairly submitted by learned counsel for the assessee that question Nos.1, 2 and 4 raised herein above are covered by the decision of this Court reported in 35 VST 311 [M/s. Khivraj Motors Limited, No.623, Mount Road, Chennai-6 vs. The State of Tamil Nadu rep. by the Assistant Commissioner (CT), Fast Track Assessment Circle-III, Greams Road, Chennai-6) and were answered against the assessee and the Tax Case (Revisions) were admitted only with regard to question No.3 (supra). 3. The only question that survives for our consideration in all these Tax Case (Revisions) is on the levy of penalty, which is as follows: "Whether the Hon'ble Tribunal has erred in confirming the imposition of penalty under Section 16(2) of the erstwhile Tamil Nadu General Sales Tax Act, 1959?" 4. The assessee are dealers in motor cars and during the relevant period they have effected sales of motor cars as well as parts and accessories inside the State of Tamil Nadu. The sales were reported on payment of applicable tax under the provisions of the Tamil Nadu General Sales Tax Act, 1959. The original assessment was completed and orders were passed on 27.09.1999 for the assessment year 1997-98. The sales were reported on payment of applicable tax under the provisions of the Tamil Nadu General Sales Tax Act, 1959. The original assessment was completed and orders were passed on 27.09.1999 for the assessment year 1997-98. During the said period, the entry of motor vehicle into the State of Tamil Nadu attracted entry tax under the provisions of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990. The assessee effected inter-State purchases and also paid the applicable entry tax at the rate of 13% on the purchase value under the Entry Tax Act. Returns, were also filed under the said Act. In the original order of assessment dated 27.09.1999, which provided a set-off to the entry tax already paid by the assessee in terms of Section 4(1) of the Entry Tax Act. On 06.08.2002, the business premises of the assessee was inspected and as a sequel to such inspection a pre-revision notice was issued proposing to treat a sum of Rs.70,13,211/- as escaped turnover. Proposal was also made to impose penalty under Section 16(2) of the Tamil Nadu General Sales Tax Act, 1959. The notice issued by the Assessing Authority proceeded on the basis that the assessee have collected entry tax paid by them from their customers and after providing a set off of 11%, towards tax payable under the Act, the difference of 2% of entry tax over and above the tax due under the Act was proposed to be treated as taxable turnover. The assessee resisted the proposed demand by submitting their objections. The Assessing Authority, however, confirmed the proposal in the notice by order dated 30.10.2003. Aggrieved by such order, the assessee preferred appeal to the Appellate Assistant Commissioner. The First Appellate Authority allowed the appeal by order dated 22.09.2004. Aggrieved by such order, the State preferred appeal before the Sales Tax Appellate Tribunal [The Tribunal] and the Tribunal by order dated 09.11.2012 allowed the appeal and remanded the matter back to the Assessing Officer for imposition of penalty. 5. The other Tax Case (Revisions) also pertain to similar type of transaction for the subsequent assessment years. Only for the assessment year 2001-2002, it is a case of original assessment and in respect of other assessment years, it was a revision of assessment. 6. 5. The other Tax Case (Revisions) also pertain to similar type of transaction for the subsequent assessment years. Only for the assessment year 2001-2002, it is a case of original assessment and in respect of other assessment years, it was a revision of assessment. 6. The only question to be considered is as to whether the Tribunal was justified in confirming the penalty imposed by the Assessing Officer by reversing the decision rendered by the First Appellate Authority. 7. Section 16 of the Tamil Nadu General Sales Tax Act, 1959 deals with the assessment of escaped turnover. The purpose of this Section was to bring to tax any turnover, which has escaped assessment in the original proceedings and also to rectify cases of lower rate of taxes than what is legally applicable has been adopted in the assessment. Re-opening of assessment would be done under Section 16 of the Act only, if the tax turnovers which have been subjected to tax earlier escaped assessment or it had been under assessed, by being subjected to tax at a lower rate and not to refund or review the turnover either actually or escaped, already assessed for which purpose the powers of the Assessing Authority could be exercised under Section 55 of the Act. In terms of Sub-section (1) of Section 16 of the Act, where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the Assessing Authority may, subject to the provisions of sub- section(2) of Section 16 of the Act, at any time, within a period of five years from the date of the final assessment, determine to the best of its judgment the turnover, which has escaped assessment and assess the tax payable on such turnover after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause. 8. A reading of the assessment orders will show that it is not a case of best judgment assessment. The Assessing Officer found that the assessee had paid entry tax at 13% under the Entry Tax Act on the purchase value of Motor Vehicles imported from other States. At the time of sale, the dealers have prepared invoices which include entry tax paid on the purchase value of car in the bills issued to the customers. The Assessing Officer found that the assessee had paid entry tax at 13% under the Entry Tax Act on the purchase value of Motor Vehicles imported from other States. At the time of sale, the dealers have prepared invoices which include entry tax paid on the purchase value of car in the bills issued to the customers. The Assessing Officer held that the dealers should have adopted the method of adding only sales tax value on the purchase value excluding the entry tax and then claim set off of the entry tax only to the extent of sales tax due thereon. Therefore, the Assessing Officer was of the opinion that the dealers have collected excess amount which is not permissible under the Tamil Nadu General Sales Tax Act, 1959. 9. As regards the proposal to levy penalty, the Assessing Officer stated that the dealers have wilfully suppressed the taxable turnover taxable at 11% by adopting incorrect method of computation of taxes, but for the inspection, the turnover would not have come to light. The assessee pointed out that the proposal to levy penalty under Section 16(2) of the Act was not based on best judgment assessment and therefore the question of imposition of penalty does not arise. 10. The First Appellate Authority pointed out that no penalty could be levied under Section 16(2) of the Act, if the assessment is based on the basis of books of accounts and for imposition of penalty finding of mensrea is necessary and the Assessing Officer have not recorded any finding of mensrea and held that imposition of penalty was unjustified and more so when the assessee had disclosed all their transactions in the books of accounts. There is also a clarification in favour of the assessee vide proceedings dated 13.05.1993 issued in Letter No. K. Dis. Act Cell-IV-29951/96 wherein the Special Commissioner and Commissioner of Commercial Taxes has clarified that the entry tax paid cannot be included in the basic cost of the vehicles for working out the Sales Tax (Tamil Nadu General Sales Tax) liability, because the entry tax paid can be adjusted towards the tax due under the Tamil Nadu General Sales Tax and other levies such as surcharge, additional surcharge and additional sales tax. The First Appellate Authority also placed reliance on the decision of this Court reported in (2002) 125 STC 505 [Apollo Saline Pharmaceuticals Ltd., vs. State of Tamil Nadu] and accordingly deleted the penalty levied under Section 16(2) of the Act. 11. The Tribunal referred to the decisions of other assessee's similarly placed, but however distinguished those cases to confirm the levy of penalty holding that wilfulness in not disclosing the facts are established continuously for a period of five years. 12. Aggrieved by this, the assessee has preferred these Tax Case (Revisions), which have been admitted on the question referred to above. 13. As already seen in the preceding paragraphs, levy of penalty under Section 16(2) of the Act would arise only if a dealer evades payment of tax due to wilful non-disclosure. Further the Assessing Authority must record the satisfaction that the escape from assessment is due to wilful non-disclosure of the assessable turnover. As is seen from the Assessment Order, the reason recorded by the Assessing Officer for revision of assessment was that that the assessee included the entry tax paid into the price for the purpose of charging the sales tax. 14. Thus, we do not find a ground for holding that there is a suppression of turnover with a wilful intention for the purpose of levy of penalty. The purchase price are consideration for goods, which is agreed to between the willing buyer and the seller, who admittedly, agreed for fixing the price that was inclusive of the entry tax paid and that does not mean that the assessee had wilfully suppressed the turnover. In fact, the assessee had disclosed the entire turnover in the books of accounts, which was dissented to by the Assessing Officer. 15. In the circumstances, we do not find any cause for wilfulness or a suppression to attract the provisions under Section 16(2) of the Act. 16. In the result, all these Tax Case (Revisions) are allowed and the order of the Tribunal is set aside. No costs. Consequently, the connected miscellaneous petitions are closed.