Ramaprasada Rao, J.
1. The petitioner is challenging the order of assessment by the original authority under the Tamil Nadu General Sales Tax Act dated 26th December, 1966, under the following circumstances. For the assessment year 1964-65, the petitioner did not file his usual return in time. As the return was not so forthcoming, the assessing authority initiated proceedings to assess the petitioner under the best judgment method under Section 12(2) of the Act. It is however common ground that for the assessment year, the petitioner did not keep any accounts in relation to his vast transactions relating to imports and exports which he effected under valid licences held by him for the purpose. The petitioner ushered in a return after proceedings were initiated against him by the assessing authority under Section 12(2) of the Act. As there were no account books which could be compared with the return so filed by the petitioner, the assessing authority gave the petitioner enough opportunity to sustain his return, or suffer a best judgment assessment. The petitioner is not complaining in this writ petition that he had no fair or full opportunity to explain his dealing in the year under review. As a matter of fact, his case is that during the enquiry by the assessing officer in the proceedings undertaken by him under Section 12(2) proposing to assess him under the best judgment method, he placed strong reliance upon the return filed by him and attempted to satisfy the taxing authorities that his return ought to be the basis of assessment. As I said already, there were no account books, or any other particulars given by the petitioner to the assessing officer for him to be satisfied that the return or the particulars therein were correct. There was a return on record, but in the circumstances of the case, the assessing officer could not place any reliance upon it because there was no comparable hypothesis or data furnished by the petitioner with reference to his account books, or other extraneous material to sustain his return. But, on the other hand, a valiant attempt was made by the petitioner to keep on to his return, and necessarily, therefore, the authorities had to treat the case virtually as one of no return and deal with the petitioner. I may also incidentally point out the manner in which the authorities dealt with the case on the merits. The assessing officer after fully examining the petitioner and his explanation against the imposition of a best judgment, held that there was every attempt on the part of the petitioner to evade tax and the voluntary disclosure of a correct turnover. The Appellate Tribunal, which confirmed this order, again observed that the return was filed only after a detailed investigation by the department was held and after the proceedings were initiated to assess the petitioner on the best judgment method and, to that extent, there was a wilful default on the part of the petitioner and that that situation had to be taken note of. The Appellate Tribunal also expressed the view that, in view of the gravity of the offence, that the details of the petitioner's huge transactions had not at all been placed before the department for verification, especially when the goods concerned were imported under the import licences granted by the Government of India, the adoption of the best judgment method and the subsequent imposition of penalty were both justified in the eye of law. It is as against this, the present writ petition has been filed.
2. The contention of the learned Counsel for the petitioner is that as there was a return in the records, no case has been made out either by the assessing or the first appellate and the second appellate authorities to sustain a case of best judgment assessment. In any event, it is stated that the circumstances of the case cannot be understood as one in which there is no return at all, which circumstance normally will enable the assessing authority to invoke Section 12(3) of the Act.
3. Our court has noticed on many occasions the distinction in the texts of Section 16 and Section 12 of the Tamil Nadu General Sales Tax Act. Whilst, in the former section a finding as to wilful avoidance of the filing of a return is a sine qua non for the invocation of the penal provision and for the imposition of penalty thereafter, in the latter provision there is no such statutory obligation. That this is the position has been reiterated by a Division Bench of this Court in Oveekee Textiles v. Deputy Commercial Tax Officer  27 S.T.C. 439 . After referring to the ingredients of Section 16(2) and the necessity of a finding by the assessing authorities that there has been a wilful non-disclosure of the assessable turnover, or a wilful default in making a return or in making an incorrect return, as the foundation for the invocation of the penal provision if the assessment is under Section 16(2), the learned Judges made it clear that such is not the requirement under Section 12. To a similar effect, but in a different language, another Division Bench of our High Court in Meiyappan v. Commissioner of Commercial Taxes  20 S.T.C. 115, while maintaining the distinction between Section 16(2) and Section 12(3) of the Act, added that even in the case covered by Section 12(3) of the Act,. a deliberate non-disclosure was really contemplated. Obviously, the learned Judges were of the view that the record in a particular case should be in a position to present a picture that the circumstances were so revealing that what prompted the assessing authority to invoke Section 12(3) was a deliberate non-disclosure of the accounts. Each case therefore has to be decided on its own merits.
4. In the instant case, I have referred to the findings of the assessing authority as well as the Sales Tax Appellate Tribunal. They found that the conduct of the petitioner in not having maintained books in spite of his multitudinous transactions covering imports and exports and that coupled with the fact that he did not care to file a return in time and having filed a so-called return after the investigation was started by the department sought to maintain that incorrect return, were all matters which prompted a reasonable man to hold that there was a deliberate and wilful attempt on the part of the petitioner to avoid tax by not furnishing the returns or by not producing the necessary material for the assessing authorities to comprehend and adjudicate on them. If, therefore, the orders challenged in this writ petition do disclose that the authorities did consider at all material times the mind of the assessee and came impliedly to the conclusion that there was a deliberate non-disclosure within the meaning of Section 12 of the Act, then such a reflection on the record as to the conduct of the assessee is sufficient to vest in the authorities the jurisdiction to invoke the penal provisions under Section 12(3) of the Act.
5. Section 12(3) enables the assessing authority to levy the penalty. It contains two distinct compartments. The first one is that the assessing authority has the power to direct the dealer to pay in addition to the tax assessed a penalty not exceeding 1 times the amount of tax due on the turnover that was not wilfully disclosed by the dealer in his return. The second compartment is that in the case of failure to submit a return he could be directed to pay 1 times the tax assessed. In the former case, a return which has been accepted, or at least acceptable by the department is available. In the latter case, there is no such return at all. The expression 'failure to submit a return' in the latter compartment of Section 12(3) obviously would include a case where a wilful wrong return has been filed and that with an amount of deliberateness and wantonness. In a case where the record as well as the findings of the courts below disclose that there has been a deliberate departure from the process adoptable normally by an assessee and in consequence the reasonable impression is that the return is merely a pad of paper, then such a situation is equatable to a case of a failure to submit a return. It Is in this context and in the conspectus of the events that transpired that the authorities viewed the situation as a case where there has been no return at all.
6. The argument however is that the finding in the instant case that there has been no return and that the return filed has been rejected, is against the dicta of this Court, in Bata Shoe Co. Ltd. v. Joint Commercial Tax Officer  21 S.T.C. 135. A Division Bench of this Court to which I was a party expressed the view that if a return is filed before the assessment order is made, it ought not to be ignored and that has to be taken into consideration by the assessing officer in making the assessment. In the instant case, the circumstances disclose that the petitioner, conscious of the penal provisions under Section 12(3), wanted to file a return and make a show of it, so that he could escape the higher scale of penalty. This is how his conduct has been described by the authorities. It is in these circumstances that I am of the view that this is virtually a case of a no return, though an attempt was made to usher in a deliberately incorrect return so as to gain an undue advantage in the matter of the penalty leviable under Section 12(3). On the basis of this return, it is argued that the penalty cannot be under the second compartment of Section 12(3), but should be under the first. In the peculiar circumstances, I am unable to agree with the contention of the learned Counsel for the petitioner that the yardstick as to penalty adopted by the authorities is incorrect and inapplicable. Having regard to the fact that there were no accounts and the return was submitted at a time when almost a decision was made by the authorities to assess him on the best judgment method and when the petitioner did not avail himself of every opportunity to prove his return, the proposal made by the department in their notice to assess him under the best judgment basis under Section 12(2) was quite in order; again, as ultimately the authorities found that the assessee was a person who willy-nilly attempted to avoid and evade the payment of tax, I am of the view that the second compartment of Sub-section (3) of Section 12 is applicable and the Tribunal was right in having levied the penalty, as also the quantum thereof. The order does not pose any error of jurisdiction or any other apparent error.
The writ petition is dismissed. There will be no order as to costs.