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TMI Blog1987 (8) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... e was engaged in the business of "jobwork" constructing truck and motor bodies in respect whereof material was supplied by his clients. He was concerned with the labour charges only, and was not liable to sales tax inasmuch as in constructing bodies for others he had not engaged himself in making any sale thereof. However, the Sales Tax Officer did not accept the assessee's case and by an assessment order aforesaid he taxed the assessee on estimated turnover. Being aggrieved, the assessee filed an appeal before the Assistant Commissioner (Judicial). During the course of appeal proceedings, the assessee filed his own affidavit as well as confirmatory letters from his clients (the chassis owners) in support of his claim. Relying on the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of natural justice and in violation of the provisions contained in sub-section (5) of section 10 of the Act read with rule 68 of the Sales Tax Rules. When this matter was initially heard by this Court, by an order dated 7th May, 1987, the counsel for the assessee was allowed time to file a personal affidavit of the assessee in support of his first argument. In compliance of the said order, two affidavits have been filed, one of the assessee himself and the other of his counsel Sri G.D. Singhal who had moved the application for adjournment before the Tribunal. In these affidavits it is averred that no notice was issued nor any such notice was sent by the Tribunal, fixing 5th December, 1986 as an adjourned date of hearing of the appeal, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urning the appeal and fixing the next date of hearing was passed by the Tribunal on that very date of hearing itself and the adjourned date was not fixed subsequently. There is also nothing on record to indicate that the assessee or his agent was present on the first date of hearing. In order to support his contention that the assessee was entitled to get a fresh notice of the adjourned date, the learned counsel relied upon a decision of this Court in Kailash Rice Mills v. Commissioner of Sales Tax 1982 UPTC 797. It is a case where the assessee did not appear on the date fixed for hearing and the hearing of appeal was adjourned. The appeal was decided ex parte on the adjourned date without any fresh notice to the assessee, the view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d decision was not in accordance with law, and hence, the impugned order cannot be sustained. It was next contended that the Sales Tax Appellate Tribunal being of the opinion that without, confronting the Revenue, the additional evidence adduced before the first appellate authority could not have been relied upon; the Tribunal ought to have remanded the matter or it should have itself afforded such opportunity before disposing of the appeal. As a part of the same submission, it was urged that the Tribunal did not go into the merits of the question whether the transactions in question were not "works contract" and it has restored the order of the assessing officer without giving its own decision in this regard. From the orders passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e diligence the evidence could not be produced before the assessing authority. This section also provides that if the appellate authority decides to accept the additional evidence in the circumstances mentioned above, it is necessary in every such case to afford a reasonable opportunity to the Commissioner of Sales Tax for challenging or rebutting such evidence. Now, a perusal of the order of the Assistant Commissioner (Judicial) shows that the Sales Tax Commissioner was duly represented before him by Sri M.B. Saxena, Sales Tax Officer. This order does not show that at any stage, an objection was taken on behalf of the Revenue against the additional evidence being brought on record at the appellate stage. It is well-settled that if the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the Sales Tax Commissioner before relying on the additional evidence and in annulling the assessment. I have observed earlier, no such objection was taken before the first appellate authority, by the Revenue, although the Sales Tax Commissioner was duly represented. Be that as it may, want of opportunity of hearing does not render the proceedings or admission of the evidence null and void. It may require a remand of the proceedings instead of quashing the proceedings. The purposes of affording an opportunity to the Sales Tax Commissioner as contemplated under section 12-B of the Act is that the assessee should not be allowed to take the Revenue by surprise by producing the evidence at a late stage. In the instant case, the department d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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