“3. It is the judgment of the assessing authority on a scrutiny of the books of account of the assessee and taking into consideration the surrounding circumstances. Unless there is a finding by the assessing authority that there has been a wilful suppression, which springs from the contumacious conduct on the part of the assessee, which is discernible from the course of his conduct as a businessman, it would not be safe to assume that, by reason of the best judgment assessment and by reason of the increase in the assessable turnover as discovered by the assessing officer, there is an automatic conclusion about the suppression and that too wilful suppression of assessable turnover by the assessee. Each case has to be decided on its own merits. In the instant case, it is not stated that there was such a finding which would provoke a reasonable assessing authority, while exercising suo motu powers of revision, to assume that there was such a wilful suppression of sales turnover on the part of the assessee. The Deputy Commissioner, no doubt, had the right to look into the records and scrutinise the order of the statutory functionary in the lower hierarchy, so as to correct it, if such a correction was necessary. But it is very doubtful whether he could assume that in every case where the best judgment method is adopted as a result of which there is an increase in the assessable turnover as discovered by the assessing authority that there has been a wilful suppression of sales turnover. Levy of penalty springs from the act which amounts to misconduct and being penal in nature ought not to be the product of any assumption. The Deputy Commissioner in the exercise of his revisional power thought that he could fix the penalty at Rs. 2,061, once again on the supposition that there was wilful suppression. There was no such direct or telling finding by the assessing authority. It is not even contended to be so before us. It was in those circumstances that the Tribunal, in the appeal filed by the aggrieved assessee for cancellation of the penalty levied
