ORDER K. Radhakrishnan, President The purchase accounts produced by the appellant were not accepted as correct by the Assessing Officer because he had not maintained accounts of daily sales properly classified. Further on a complaint made by one Awatar Singh it was found that the appellant had received a consignment of goods despatched from Bombay in the name of Awatar Singh. Therefore the Assessing Officer made his own estimate of the gross turnover at Rs. 90,000 and assessed the tax on it after making the necessary deductions. In addition the Assessing Officer after obtaining the previous approval of the Assistant Commissioner of Sales Tax imposed a penalty of Rs. 200 on the appellant u/s 10(3) of the C.P. and Berar Sales Tax Act, 1947 (hereinafter called the Act) for late submission of the return for the year with which the assessment was concerned. Against the assessment and the penalty imposed an appeal was filed before the Appellate Assistant Commissioner of Sales Tax, Jabalpur. The Appellate Assistant Commissioner maintained the assessment but enhanced the penalty to Rs. 400 on the ground that the penalty imposed by the Assessing Officer was unduly low. In this second appeal both the assessment and the penalty are attacked. So far as the assessment is concerned the contention of the appellant is that the enhancement was unjustified and that the increase of the sales of goods taxable at one anna in the rupee from Rs. 19,863-15-3 to Rs. 22,000 was disproportionately high as compared with the enhancement of the sales of taxable goods at 3 pies in the rupee and the sales of tax free goods. No reasons were advanced to justify the assertion. In the circumstances I do not think that the assessment order as such requires any modification. The main attack was on the penalty which has been imposed upon the appellant. The penalty was attacked on the two grounds, namely:- (1) The Appellate Assistant Commissioner had no power under the Act to enhance the penalty which had been imposed by the Assessing Officer. (2) That in this case the Assessing Officer acted without jurisdiction in imposing the penalty because he had not obtained the previous approval of the Commissioner of Sales Tax for imposing the penalty as required by the Act. (2) That in this case the Assessing Officer acted without jurisdiction in imposing the penalty because he had not obtained the previous approval of the Commissioner of Sales Tax for imposing the penalty as required by the Act. So far as the first point is concerned reliance was placed upon section 22(3)(b) of the Act which reads: ..........the appellate authority, in disposing of any appeal..........may set aside the assessment or penalty, or both.......... The contention of the learned counsel for the appellant was that under this section the only power conferred upon the appellate authority is to set aside the penalty and this power does not extend to enhancing the penalty. The learned counsel for the Government only stated in reply to this contention that the appellate authority had all the powers of the original assessing authority. Even so since the approval conveyed by the Assistant Commissioner of Sales Tax, when such approval was sought for the imposition of the penalty by the Sales Tax Officer was only to impose a penalty of Rs. 200, it follows that the imposition of a higher penalty was without sanction and is, therefore, not maintainable. Irrespective of the decision on the further ground urged in regard to the penalty by the learned counsel for the appellant, therefore, it must be held that the enhancement of the penalty by the Appellate Assistant Commissioner was in excess of his powers and is, therefore, illegal. So far as the second objection to the levy of the penalty by the Assessing Officer is concerned reliance was placed on the proviso to section 16 of the Act. This section reads as follows:- 16. Subject to such restrictions as may be prescribed, the Commissioner may, by order in writing, delegate any of his powers under this Act except those u/s 22-A, section 22-B and sub-section (2) of section 24 to any person appointed u/s 3 to assist him: Provided that if the power to impose penalty conferred upon the Commissioner by sub-section (3) of section 10, sub-section (5) of section 11, section 11-A and section 22-C is delegated by him under this section to any person appointed u/s 3 to assist him, such person shall not exercise the power without obtaining the previous approval of the Commissioner. The contention of the learned counsel for the appellant is that even if the Sales Tax Commissioner had delegated the power to impose the penalty u/s 10(3) to the Sales Tax Officer, who imposed the penalty in this case, the latter was required to obtain the previous approval of the Commissioner before exercising that power. In this case the approval was given by the Assistant Commissioner of Sales Tax who purported to give it in the exercise of the powers delegated to him u/s 16 of the Act. The sanction conveyed by the Assistant Commissioner is at page 51 of the Sales Tax Officer's record. Since the Assistant Commissioner, who conveyed the approval, was not the Commissioner appointed u/s 3(1) of the Act but was only a person appointed to assist the Commissioner, his approval cannot be treated as the approval contemplated by the proviso to section 16 and, therefore, in this case it should be held that the Sales Tax Officer had not been properly authorised to levy the penalty and, therefore, the penalty levied by him is not in accordance with the law. The main portion of section 16 which deals with the delegation of powers by the Commissioner says that subject to the exception mentioned in the section itself and subject to such restrictions and conditions as may be prescribed the Commissioner may, by order in writing, delegate any of his powers to any person appointed u/s 3 to assist him. Rule 67 prescribes the restrictions and conditions subject to which the Sales Tax Commissioner can delegate his powers to other officers of the department. Serial No. 7 under this rule reads: S. No. Section. Description of power. Designation of officer and conditions of delegation. 1. 2. 3. 4. 9 10 To direct a dealer who fails to furnish returns for any period within the prescribed time to the prescribed authority without any sufficient case to pay penalty. Deputy Commissioner (with the previous approval of the Commissioner). Assistant Commissioner (with the previous approval of the Commissioner). Sales Tax Officer (with the previous approval of the Assistant Commissioner). Assistant Sales Tax Officer (with the previous approval of the Assistant Commissioner). Deputy Commissioner (with the previous approval of the Commissioner). Assistant Commissioner (with the previous approval of the Commissioner). Sales Tax Officer (with the previous approval of the Assistant Commissioner). Assistant Sales Tax Officer (with the previous approval of the Assistant Commissioner). Under this rule, therefore, as it stands, it would appear that for a penalty to be imposed u/s 10(3) by a Sales Tax Officer it is sufficient if the previous approval of the Assistant Commissioner were to be obtained. This rule in so far as it empowers the Assistant Commissioner to give approval whereas the proviso to section 16 does not authorise the delegation of the power to give approval to any person appointed to assist the Commissioner appears to be ultra vires section 16. On a close scrutiny of the changes that have been made in the Act from time to time it appears that the rule as it stands was drafted u/s 16 of the Act as it stood before 1-12-1953, that is, before Act XX of 1953 came into force. Before 1-12-1953 there was no proviso to section 16. Therefore, rule 67 was in conformity with that section as it stood before 1-12-1953. By Act XX of 1953 the proviso was inserted but it appears that the need to amend the entries in column 4 against serial No. 7 of the table in that rule was overlooked to bring them into conformity with the requirements of section 16 after the insertion of the proviso. Since the meaning of the proviso is unmistakably clear it follows that a general delegation of powers to the Sales Tax Officer to levy a penalty u/s 10(3) is not an adequate authorisation to legalise the levy of the penalty in a particular case unless the levy of the penalty in that case had secured the previous approval of the Commissioner. In the case before me the approval given was that of the Assistant Commissioner and, therefore, does not validate the levy of the penalty. In the result, I confirm the assessment made by the Sales Tax Officer and upheld by the Appellate Assistant Commissioner of Sales Tax but set aside the penalty imposed on the appellant. The appeal is partly allowed. Final Result : Allowed