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TMI Blog1973 (4) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... he cash bills will render the accounts of a dealer rejectable under the Sales Tax Act? (iii) Whether, in the facts and circumstances of the case, the authorities below were correct in holding that the transactions mentioned in the 16 slips were suppression of sales? (iv) Whether it was necessary for the Tribunal to deal with and/ or give reasons in not considering the affidavits filed before it?" 2.. The assessee is a firm carrying on business in kerosene oil, cement, petrol, tyres, batteries and automobile spares at Berhampur in the district of Ganjam and has been assigned registration number GA I 263. For the assessment year 1963-64, the Sales Tax Officer did not accept the accounts of the assessee and after rejecting the same enhanced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given case low profits disclosed by the assessee can be used as a ground for rejecting the books of account would depend on the facts of the case. If upon comparative material, the assessing officer comes to hold that the low profits were the outcome of suppression of cash transactions, rejection of books cannot be disputed. Similarly, in cash transactions (sic) addresses and particulars are not shown in the cash memos, the accounts must be rejected. The assessing officer has not used these independent grounds for rejecting the books of account in this case. These are features which have been taken into consideration along with other aspects and the cumulative effect has led to the rejection of the accounts. We are at one with the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "(1) When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order. (2) When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order. (3) When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order. (4) When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it. Stating the position compendiously, it is only a question that has been raised before or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rule may be quoted: "(1) No party to an appeal or application for reference shall be entitled to adduce fresh evidence whether oral or documentary, before the Tribunal: Provided that- (a) if the authority from whose order the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) if the person other than the State Government seeking to adduce additional evidence satisfies the Tribunal that such evidence notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at or before the time when the order under appeal was passed, or (c) if the Tribunal requires any documents to be produced or any witness to be examined to enable it to pass order or for any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Sales Tax v. Bhima Palo[1961] 12 S.T.C. 785. stated so. There it was stated: "......While it is clear that under rule 61 the Tribunal has residuary powers in the matter of adducing fresh evidence, whether oral or documentary, such powers must be exercised subject to certain limitations and restrictions as laid down in the provisos (a), (b) and (c) to section (obviously, rule) 61. The corresponding provision in the Civil Procedure Code is Order 41, rule 27, relating to production of additional evidence in appellate court. The Privy Council and the courts in India have repeatedly held that the power given by this rule in the Civil Procedure Code should be exercised very sparingly and that great caution should be exercised in admitting new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he clear bar provided in sub-rule (1) of rule 61 that no party would be entitled to adduce fresh evidence, whether oral or documentary, before the Tribunal, burden lay on the assessee to bring the case within clause (a) or (b) of that sub-rule in order that the documents in question could be received as fresh evidence at the second appellate stage. Since any of the three alternatives indicated in rule 61 has not been satisfied, we agree with the contention of the learned standing counsel that those documents were not properly before the Tribunal and we cannot hold that the acceptance of the affidavits had been raised before the Tribunal and the Tribunal has failed to deal with it, therefore, the aspect must be deemed to have been dealt with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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