JUDGMENT A. R. TIWARI, J. - The order dated November 23, 1984, passed by the respondent No. 1 (Board of Revenue) in Misc. Case No. 17-4/84 (annexure I) is under challenge in this writ petition presented under article 226/227 of the Constitution of India. 2. Facts in brief are that the petitioner is a firm registered under the Indian Partnership Act and carries on a business of cotton and operates as commission agent in Saraf Bazar, Ujjain. This firm is registered as dealer under the Madhya Pradesh General Sales Tax Act, 1958 and Central Sales Tax Act, 1956. In course of its business, this firm affected sales in Madhya Pradesh as also outside the State as a result of which it is liable to pay inter-State sales tax under the Central Sales Tax Act. The petitioner was assessed for this purpose from October 19, 1971 to November 5, 1972. Quarterly returns were filed and the tax was deposited. On April 26, 1976, the petitioner furnished revised return and deposited entire tax on the basis of revised return. The revised return was filed before completion of the assessment proceedings and before initiation of penalty proceedings. The assessment order was passed on April 30, 1976, by the Assistant Commissioner, Sales Tax, Again. He issued notice No. 10314 dated November 19, 1976 to the petitioner to show cause as to why penalty under section 17(3) of the Madhya Pradesh General Sales Tax Act read with section 9(2) of the Central Sales Tax Act be not imposed for failure to pay the tax as due along with return for the second and third quarters and as to why penalty under section 43(1) of the Madhya Pradesh General Sales Tax Act read with section 9(2) of the Central Sales Tax Act be not imposed for submission of false return. The copy of the notice is marked as annexure A. The petitioner showed cause but reply was not accepted. By order dated December 28, 1976, passed in Case No. 23/72-73 (Central) penalties of Rs. 3,000 under section 17(3) and of Rs. 80,000 under section 43(1) were imposed (annexure B). The petitioner, being aggrieved by the order of penalty under section 43(1) preferred an appeal before the Deputy Commissioner of Sales Tax, Union. The appeal was registered as 46/CST/76-77. By order dated December 28, 1976, passed in Case No. 23/72-73 (Central) penalties of Rs. 3,000 under section 17(3) and of Rs. 80,000 under section 43(1) were imposed (annexure B). The petitioner, being aggrieved by the order of penalty under section 43(1) preferred an appeal before the Deputy Commissioner of Sales Tax, Union. The appeal was registered as 46/CST/76-77. No appeal was preferred against the order of penalty passed under section 17(3) of the M.P. General Sales Tax Act (annexures C and C/1). The appellate authority, Deputy Commissioner, Sales Tax, Ujjain, allowed the appeal against levy of penalty under section 43(1) and set aside imposition of liability of Rs. 80,000. However, even when there was no appeal against penalty under section 17(3) of the State Act, the appellate authority raised the penalty under section 17(3) of the Act to Rs. 43,000 in place of Rs. 3,000 (annexur D). Aggrieved by the said order (annexure D) the petitioner preferred an appeal before the Board of Revenue. The said appeal was registered as 275-PBR/77. This appeal was allowed (annexure E) and the penalty of Rs. 43,000 imposed under section 17(3) was set aside. The respondent No. 2 (Commissioner of Sales Tax) thereupon filed the application before the Board of Revenue under section 44 of the M.P. General Sales Tax Act requiring the Tribunal to refer the question of law to this Court (annexure F). The Board of Revenue, instead of making reference, as prayed, issued a notice dated August 22, 1984 to the petitioner calling upon it to show cause why the appellate order dated November 26, 1983, should not be rectified (annexure G). The proceedings for rectification were registered as Misc. Case No. 17-4/84. The petitioner submitted the reply to the same (annexure H). The respondent No. 1, despite opposition, rectified the order and held that enhancement in the amount of penalty was not improper (annexure I). This order is challenged in this writ petition. 3. The counsel for the petitioner submitted that the order under section 17(3) was not subject-matter of the appeal and as such there was absolutely no question of making any enhancement. The short question was whether the penalty imposed under section 43(1) of the State Act read with section 9(2) of the Central Act was in conformity with law or not ? This was challenged in appeal and the appeal was allowed. The short question was whether the penalty imposed under section 43(1) of the State Act read with section 9(2) of the Central Act was in conformity with law or not ? This was challenged in appeal and the appeal was allowed. After reversal of the order of penalty, the respondent No. 2 had only prayed for making a reference of question of law to this Court for its opinion. This was not done and the order which was set aside earlier was illegally brought back to life and the appeal which was allowed earlier, was then disallowed. The counsel submits that such an order is not sustainable in law. 4. The Government Advocate for the respondent No. 2, was unable to support the aforesaid order. 5. Admittedly, there was no application for reviewing the order passed earlier on November 26, 1983 (annexure E). So-called rectification, is in fact, the review of the order. Such a review is not shown to be in conformity with law. 6. In [1983] 54 STC 332 (MP); 1983 MPLJ 880 (Food Corporation of India v. Commissioner of Sales Tax) it is held as under : "As regards scope of jurisdiction under section 38(5), we have already come to a conclusion that the appellate authority exercising jurisdiction under section 38(5) in the present case, could not have imposed a penalty but as discussed above, it is clear that the appellate authority had jurisdiction under section 43 to impose penalty for the first time after giving an opportunity to the assessee of being heard and it is not disputed that that opportunity was afforded and notice was issued before the final orders were passed by the appellate authority." 7. It is thus clear that there was no power to enhance the penalty. 8. The order passed by the respondent No. 1, is therefore, luculently contrary to law and cannot be sustained. The rectification as made in earlier order, dated November 26, 1983 (annexure E) is ultra vires of the power and in violation of law. 9. In the result, this petition is allowed. The order dated November 23, 1984 (annexure I) is consequently set aside. 10. The petition is thus allowed but without any order as to costs. Security amount shall be refunded to the petitioner after due verification. Petition allowed.