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TMI Blog1973 (4) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee, an unregistered dealer in timber was assessed to sales tax under section 12(5) of the Act for the quarters ending 30th September, 1958, and 31st December, 1958. In spite of notices served by the assessing officer, he failed to comply with the terms of such notices and, therefore, the assessment had been completed according to best of judgment after local enquiry. The assessee's appeal was disposed of by the first appellate authority without the assessee participating in the hearing of the appeal and the assessments were affirmed. The second appeals were heard by the Member, Additional Sales Tax Tribunal, on 26th February, 1970. On the date of hearing at the camp, a petition was filed by the assessee along with a memorandum. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the D.F.O., Kalahandi, and he is being connected with a firm called 'Jagannath Rambilash'. It Is said that the firm is registered under the O.S.T. and C.S.T. Acts. 3.. That Jagannath Prasad Agarwal is in no way connected with the business of Desraj Jagadish Prasad. Hence it is prayed that while disposing of the appeals, the above facts may kindly be taken into consideration and oblige. Yours faithfully, Bolangir, 26th February, 1970. Sd. T.R. Agarwal, Advocate for Desraj Jagadish Prasad." Copy of the petition and the memorandum does not seem to have been served on the Additional State Representative, who appeared for the State of Orissa on the date of hearing as would appear from the appellate order of the Member, Additional Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be entitled to produce rebutting evidence, if any. (2) When fresh evidence has been adduced the parties may, if they so desire, address the Tribunal on points arising out of the fresh evidence." The assessee has not indicated in his petition that any of the circumstances provided in rule 61 was satisfied in the case. The order sheet of the date of hearing does not show that the documents were received as additional evidence under any of the three clauses of sub-rule (1) of rule 61. It has been stated by this court in the case of Commissioner of Sales Tax v. Bhima Palo[1961] 12 S.T.C. 785., that the provisions of rule 61 are on the pattern of Order 41, rule 27, of the Code of Civil Procedure. It is true, sub-rule (2) of Order 41, rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n indicated by their Lordships of the Supreme Court in the case of State of U.P. v. Manbodhan Lal SrivastavaA.I.R. 1957 S.C. 912., with reference to the relevant provision in the Code of Civil Procedure relating to additional evidence: "It is well-settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps......." In our view, the same rule applies while the Tribunal exercises appellate jurisdiction and is asked to receive additional evidence in terms of rule 61 of the Rules. Receipt of additional evidence in this case is, therefore, not in accordance with law. Our answer to the first question, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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