Y.V. Anjaneyulu, J.
1. This tax revision case is filed against the decision of the Tribunal for the assessment year 1976-77. The assessee supplied stone ballast to the South Central Railway. Prior to the year 1978 he was not an assessee or a registered dealer on the rolls of the department. He had never submitted any returns as he was not liable to pay tax. On the information obtained from the South Central Railway, Vijayawada, the Commercial Tax Officer, Vijayawada, assessed the appellant on the turnover of stone ballast supplied to the South Central Railway under section 14(3) of the Andhra Pradesh General Sales Tax Act. Inasmuch as the assessee did not file a return voluntarily, the Commercial Tax Officer instituted proceedings for the levy of penalty under section 14(3). The assessee explained that he was not an assessee on the rolls of the department till the year 1978 and he was unfamiliar with the legal position that the turnover of stone ballast in this case could be treated as sale for the purpose of the Andhra Pradesh General Sales Tax Act and tax levied. It was stated that the assessee was under a bona fide belief that the supply of stone ballast to the South Central Railway could be treated only as a works contract not liable to be taxed under the Andhra Pradesh General Sales Tax Act and under that bona fide mistake he did not file return.
2. The Commercial Tax Officer declined to accept the above explanation. He held that the assessee would have escaped tax had it not for the information gathered from the South Central Railway. He therefore drew the inference that the default committed by the assessee was deliberate and levied penalty under section 14(8)(a) of the Act. The penalty levied was twice the amount of tax. On appeal the Assistant Commissioner confirmed the penalty levied. The assessee carried the matter in second appeal. The Tribunal accepted the assessee's two-fold explanation, firstly that he was not an assessee till the year 1978 and therefore he way unfamiliar with the tax proceedings and secondly there was a controversy on the question whether the supply of stone ballast would come within the meaning of 'sale' or a 'works contract'. The Tribunal accepted the contention that the assessee was under a bona fide mistake. Invoking the proviso to section 14(8) the Tribunal held that no penalty is leviable.
3. The question whether the assessee was under a bona fide mistake or not is essentially a question of fact. The Tribunal dealt with the matter at considerable length and gave cogent reasons for coming to the conclusion that the assessee failed to file the return under a bona fide mistake entitling him to the benefit under the proviso to section 14(8). We are not persuaded to interfere with this finding recorded by the Tribunal.
4. The tax revision case is dismissed. No costs. Advocate's fee Rs. 250.
5. Petition dismissed.