1. These are two petitions in which the petitioner challenges the orders of assessment of the Sales Tax Authorities and the levy of small penalties. In Special Civil Application No. 312 of 1961 the period of assessment is from 7th November, 1953 to 26th October, 1954, and in Special Civil Application No. 313 of 1961 the corresponding period is from 27th October, 1954 to 14th November, 1955. The odd dates are accounted for when we consider that the petitioner maintained accounts from Diwali to Diwali.
2. The petitioner carries on two businesses, consisting of a lime works at Rajur and business in manganese ore at Nagpur. She made a composite return in respect of both these businesses for the period 7th November, 1953 to 26th October, 1954, and in support of her return, she produced account books separately maintained at Rajur and Nagpur. Now, in the case of the first of the two years of assessment, the Sales Tax Officer found that the accounts of the petitioner were not properly maintained and contained a number of incorrect and inaccurate entries. He pointed to two such inaccuracies in paragraph No. 2 of his order and then came to the conclusion :-
'Thus the accounts at Rajur are not reliable at all. The accounts at Nagpur were also checked ............... It is quite obvious that everything was not alright in Nagpur accounts too and they can also be not accepted as correct.'
3. Under these circumstances, the Sales Tax Officer assessed the petitioner on a gross turnover of Rs. 1,20,000 to the best of his judgment.
4. The appellate authority, viz., the Assistant Commissioner of Sales Tax, Nagpur, in hearing the appeal also scrutinised the petitioner's accounts and confirmed the findings of the Sales Tax Officer and the opinion he had formed as to the petitioner's accounts. The Assistant Commissioner observed after discussing the accounts both in respect of the lime business and the manganese business :
'On account of such a state of affairs the learned Assessing Officer enhanced the sales and in my opinion he was perfectly justified in doing so.'
5. The petitioner went up in second appeal, but the second appeal was summarily dismissed on the short ground that the petitioner had failed to deposit the amount of the tax demanded by the appellate authority. The petitioner then moved the Assistant Commissioner of Sales Tax (Appeals) in revision under section 22 of the C.P. and Berar Sales Tax Act, 1947, and the appellate authority felt that even as a best judgment assessment, the assessment of the petitioner's turnover at Rs. 1,20,000 for both the businesses was somewhat excessive and, therefore, he reduced it by Rs. 20,000, thus assessing the petitioner on a gross turnover of Rs. 1,00,000. It is against that order that the petitioner has come before this Court.
6. The principal contention of Mr. Bobde on behalf of the petitioner has been that the revisional authority held that the Rajur accounts, so far as the lime business was concerned, were not regularly maintained but that, so far as the manganese business was concerned, the revisional authority had accepted those accounts. He relied upon the following passage occurring in paragraph 4 of the revisional order of the Assistant Commissioner of Sales Tax (Appeals), dated 28th April, 1961 :
'The accounts maintained by the firm are not found to be correctly maintained and as such there was sufficient justification for enhancing the sales but in respect of sales of manganese it was found that manganese account was properly maintained and on that ground there was no justification for discarding the sales.'
7. He, therefore, urged that those accounts relating to the manganese business should, at any rate, have been looked into and the best judgment assessment could not be justified upon the entire turnover of both the businesses. He pointed out that if these accounts are accepted, so far as the manganese business is concerned, then the figure of gross turnover is liable to be reduced by about Rs. 9,000.
8. The passage from the judgment of the Assistant Commissioner of Sales Tax (Appeals) which we have reproduced above is not correct in stating that any of the lower authorities had found that the manganese account was properly maintained. That assumption which the Assistant commissioner of Sales Tax (Appeals) made is incorrect, We have already reproduced the findings in this respect of the Sales Tax Officer and the Assistant Commissioner of Sales Tax and those passages show that those two authorities definitely held that the petitioner's accounts were not regularly maintained and were not reliable. In that view, it was an incorrect statement in the judgment of the second appellate authority, the Assistant Commissioner of Sales Tax (Appeals), that 'it was found that manganese account was properly maintained .........'.
9. Mr. Bobde on behalf of the petitioner urged that what the Assistant Commissioner of Sales Tax (Appeals) was here stating was his own view of the account. We do not think that the sentence is susceptible of that construction and, even if it be susceptible, that the Assistant Commissioner of Sales Tax (Appeals) had any authority to do so, sitting in revision. It was a clear finding of fact given by the Sales Tax Officer and confirmed by the Assistant Commissioner, Sales Tax, that the petitioner's accounts were not properly maintained and, therefore, not reliable, and the revisional authority would not have the jurisdiction to upset that finding which was one of fact. Thus the very basis of the contention raised in this petition is taken away. It was only on the assumption that the manganese accounts were found to be correctly maintained that the further argument could be advanced that the turnover in respect of the manganese business ought to have been assessed on the basis of those accounts. If the accounts were not correct and not properly maintained, then under section 11(4) of the C.P. and Berar Sales Tax Act, 1947, the authorities would be well within their jurisdiction in coming to the best judgment assessment. The contention, therefore, fails.
10. On this question in the second year of assessment in respect of which Special Civil Application No. 313 of 1961 has been filed, the accounts were not at all produced and the petitioner gave it a ground that he had lost all the account books in a flood, which overtook Rajur, where the account books were kept. That story was not believed by the Sales Tax Authorities. That, again, is a finding of fact. If the accounts were not forthcoming, then, once again, the best judgment assessment under section 11(4) of the Act would be amply justified.
11. The argument that in coming to a best judgment assessment the authorities have acted arbitrarily or capriciously also cannot be sustained upon the record before us. There has been nothing shown as to why the assessment ultimately made on a turnover of Rs. 1,00,000 in each case for one year was excessive, arbitrary or capricious. Their Lordships of the Supreme Court recently had occasion to pronounce upon this subject and they have laid down what should be the principle to be followed in making a best judgment assessment. This is how they stated it in Raghubar Mandal v. The State of Bihar  8 S.T.C. 770; : 1SCR37 :
'No doubt it is true that when the returns and the books of account are rejected, the assessing officer must make an estimate, and to that extent he must make a guess; but the estimate must be related to some evidence or material and it must be something more than mere suspicion. To use the words of Lord Russell of Killowen again, 'he must make what he honestly believes to be a fair estimate of the proper figure of assessment' and for this purpose he must take into consideration such materials as the assessing officer has before him, including the assessee's circumstances, knowledge of previous returns and all other matters which the assessing officer thinks will assist him in arriving at a fair and proper estimate.'
12. The reference to the remarks of Lord Russell of Killowen is to the judgment in Income-tax Commissioner v. Badridas Ramrai Shop, Akola  64 I.A. 102; 5 I.T.R. 170.
13. Mr. Bobde urged that their Lordships had pointed out in the passage, we have just quoted, that the assessment must be related to some evidence or material and it must be something more than mere suspicion and that, in the instant case, there is no evidence or material and the authorities have merely acted upon suspicion. We are unable to accede to this contention because the authorities have given their reasons. They have discussed the figures mentioned by the assessee and the figures as appearing in their account books and then come to a decision. It was certainly not a mere suspicion but an assessment, which, we are satisfied, these officers honestly believed was a fair estimate of the petitioner's turnover. In that view, we can see nothing wrong with the estimates made in these two cases under the petitions.
14. The other question that remains to be determined is the question of penalty. In each of these cases a small penalty was levied under section 10(3) of the Sales Tax Act by the Sales Tax Officer but it was reduced in appeal. After the reduction the penalties are Rs. 275 in Special Civil Application No. 312 of 1961 and Rs. 415 in Special Civil Application No. 313 of 1961. In regard to these penalties, Mr. Bobde has urged - and in our opinion rightly - that the essential condition for the infliction of these penalties under section 16 of the Sales Tax Act has not been fulfilled. Under section 10(3) if a registered dealer fails to furnish his return for any period within the prescribed time to the prescribed authority without any sufficient cause, the Commissioner is empowered to impose a penalty not exceeding one-fourth of the amount of the tax which may be assessed on the assessee under section 11. It will be noticed that the power to levy a penalty is that of the Commissioner and no other officer. Section 16 deals with the power of the Commissioner to delegate his powers and the proviso to section 16 says :
'Provided that if the power to impose penalty conferred upon the Commissioner by sub-section (3) of section 10 ...... is delegated by him under this section to any person appointed under section 3 to assist him, such person shall not exercise the power without obtaining the previous approval of the Commissioner.'
15. It is clear from this proviso that while the Commissioner can delegate his power to impose a penalty, he has no authority to delegate the power to give approval to the penalty. In the instant case the approval was only given by the Assistant Commissioner and not by the Commissioner. In our opinion, that was contrary to the provisions of section 16. That is also the view which a Division Bench of this Court (to which one of us, Kotval, J., was a party) took in Special Civil Application No. 60 of 1961 decided on 27th October, 1961 Since reported as Jairam Parmar v. Sales Tax Officer, Circle II, Nagpur  13 S.T.C. 477. In that view, the penalties imposed in these cases which are impugned in these two special civil applications must be held to be bad and must be set aside.
16. In the result, therefore, we partly allow the petitions to the extent that the penalties imposed on the petitioner are set aside. The rest of the orders of the authorities below are held to be correct and to that extent the petitions are dismissed. There shall be no order as to costs.
17. Petitions partly allowed.