1. The revision petition seeks to reverse the order by the Appellate Tribunal, whereby the entire assessment order under the Madras General Sales-tax Act, has been vacated, and the case remanded to the taxing authority for fresh assessment. The petitioner is the dealer, who for the assessment year 1954-55, had filed returns, showing gross turnover of Rs. 13,52,348-1-6; and had claimed exemption on Rs. 84,110-9-2, leaving Rs. 12,68,237-8-4 as the net turnover. The Deputy Commercial Tax Officer partly disallowed the claim for exemption, and had added the further sum of Rs. 3,14,300-0-0 as the concealed or undisclosed part of the turnover. The aforesaid amount is the total of two sums of Rs. 1,57,150/ each. The taxing authority had found one such amount to be the value of 4,490 bags of rice, which he held the dealer to have purchased from I. M. Rice Mills, Nilambur, between April 1 and December 2,195

4. The grounds for so deciding appear to be the entries in the secret account books of the proprietor of the Rice Mills which the Officer is stated, during the assessment proceedings of the proprietor, to have taken from two persons, who were then present in the Mills. These entries show the transactions of sale of the bags to be with the dealer, but he contends that the evidence, or the statements, to support them could not be used against him without his being afforded the opportunity to cross-examine the persons, from whom the books were alleged to have been taken. It was further urged on behalf of the dealer that the evidence was particularly unreliable in view of the statement by the Mills proprietor in his cross-examination that the books did not relate to his business and he did not know whether Ext. P2 was a true extract of the ledger. The taxing officer had not only concluded from the evidence that Rs. 1,57,150/ the price of the rice bags, formed part of the dealers turnover, but he also held that the dealer must have similarly earned between December 3, 1954 and March 31, 1955, a further sum of Rs. 1,57,150/ though there was no evidence to support any such further additions.

2. The dealer failed in his appeal against the order, and therefore he filed the appeal before the Tribunal, wherein the order sought to be revised in this petition has been passed. Before the Tribunal, the dealer did not press the claim for exemption, as the ground of such exemption had then become untenable. The aforesaid claim rested on inter-State sales not having been saved by the Validation Act, because such sales were not taxed by the Madras General Sales-tax Act; but the argument had been rejected by the Supreme Court in another case and had become untenable when the appeal was heard by the Tribunal. As regards the additions to the turnover, the Tribunal has held that the statements of the persons recorded at the time when parts of the secret account books were seized could not be used against the assessee. It further found that, in view of the admissions in the cross-examination of the proprietor the extracts from the secret account books could not be of much evidentiary value. It has therefore held that the dealers plea about there being no legal evidence to support the purchase of 4,490 bags of rice from the Mills cannot altogether be groundless. While so holding, the Tribunal has set aside the entire assessment and has directed a fresh assessment on the evidence that the Department may produce in support of the dealers having purchased 4,490 rice bags from the Mills.

3. The learned Advocate for the dealer challenges the correctness of the decision on two grounds. His first contention is that in the absence of any rule under powers conferred by the Act for regulating exercise of the appellate jurisdiction by the Tribunal, the order remanding the case to the taxing authority was ultra vires. The second argument is that assuming the Tribunal to have such powers its particular exercise has been in utter disregard of the rules governing the directions by appellate authorities to produce fresh evidence. The learned Advocate has argued that the Tribunal cannot reopen the entire case and afford the party an opportunity to fill in the lacunae. It becomes, therefore, necessary to state the relevant sections of the Act and the rules on which these arguments rest. The Counsel for the Department has argued that the provisions relevant would be of the Madras General Sales Tax Act as the assessment in the case had been made under that Act, and that enactment alone would control the appellate jurisdiction. We think no useful purpose would be served by deciding which of the two Acts cover the case, as the relevant provisions of both are similar. In these circumstances we would quote the sections of the Travancore-Cochin Sales-Tax Act, on which the petitioners Advocate has relied. These are S.2A (4) and 15A, of the General Sales Tax Act, No. XI of 1125 and read as follows:

S. 2-A [4]: "The Appellate Tribunal shall with the previous sanction of the Government make regulations consistent with the provisions of this Act and the rules made thereunder, for regulating in procedure and the disposal of the business."

S.15-A: "Any assessee objecting to an order relating to assessment passed

[i] by the Appellate Authority under S.14, or

[ii] by the Deputy Commissioner suo mote under Section, 15 sub-section [i]

may if the assessee has not preferred an application for revision of the order under S.15, sub-section [1] or under sub-section (2] of that section, as the case may be, appeal to the Appellate Tribunal within sixty days from the date on which the order was communicated to the assessee.

[2] The Appellate Tribunal may admit an appeal preferred after the period of sixty days referred to in sub-section [1] if it is satisfied that the assessee had sufficient cause for not preferring the appeal within that period.

[3] The appeal shall be in the prescribed form, shall be verified in the prescribed manner, and shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed.

[4] The Appellate Tribunal shall, after giving both parties to the appeal reasonable opportunity of being beard, pass such order thereon as it thinks fit.

[5] Notwithstanding that an appeal has been preferred under sub-section (1), tax shall be paid in accordance with the assessment made in the case:

Provided that the Appellate Tribunal may, in its discretion permit the appellant to pay the tax in such number of instalments or give such other direction in regard to the payment of the tax, as it thinks fit:

Provided further that if as a result of the appeal any change becomes necessary in such assessment, the Appellate Tribunal may authorise the assessing authority to amend the assessment, and on such amendment being made, the amount overpaid by the assessee shall be refunded to him without interest."

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4. These are the provisions of the main Act; and the Rule framed under it, which the Advocate here referred to, is R.48, which reads as follows:

"(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Tribunal. But if:

[a] the authority, from whose order the appeal is preferred, has refused to admit evidence which ought to have been admitted, or

[b] the party seeking to adduce additional evidence, satisfies the Tribunal that such evidence, not withstanding the exercise of due diligence, was not within his knowledge, or could not be produced by him at or before the time the order under the appeal was passed, or

[c] the Tribunal requires any document to be produced or any witness to be examined to enable it to decide the case or for any other substantial cause, the Tribunal may allow such evidence or document to be produced, or witness to be examined.

[2] No order for admission of additional evidence shall be passed on the application of any party without affording an opportunity to the opposite party to be heard in the matter

[3] Where additional evidence is allowed or directed to be produced, the Tribunal shall record the reasons for its admission and shall specify the points to which the evidence is to be confined.

[4] When either party produces additional evidence, he opposite party shall be entitled to produce rebutting evidence.

[5] Wherever additional evidence is allowed to be produced, the Tribunal may, either take such evidence or direct the Deputy Commissioner, or any Assistant Commissioner, or any other Officer, or Commissioner appointed by the Tribunal, to take such evidence in the presence of the parties" ..............

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5. The advocate for the dealer has argued that as R.48 deliberately omits the power to order evidence being recorded and send the record with findings on the new evidence, which is unlike the rules under the Civil Procedure Code or under the Income Tax Act, the Tribunal cannot pass such orders, can much less remand the whole case, and in these circumstances the order in the case was ultra vires. The learned Advocate has also argued that the omission in the rule of such a power amounts to the authority vested with the power of controlling the Tribunals appellate jurisdiction having excluded the jurisdiction to pass such orders of remand. In view of the wide language, in which S.15 A [4] of the Act has been framed, we entertain doubts about the Appellate Tribunal having no such powers because of the omission. The aforesaid provisions are similar to S.12 A (4) of the Madras General Sales Tax Act, and in Somasundram v. Madras State (AIR. 1956 Mad. 123) the view has been affirmed that the Appellate Tribunal has authority to remand cases for fresh decisions by the taxing authorities in conformity with the legal and factual conclusions of the Tribunal. Moreover one of us has in Thippanna Rayappa v. Government of Andhra (8 Sales Tax Cases 660) [LQ/APHC/1957/6] taken the view that the powers under S.12A (4) of the Madras Act were wide enough to authorise complete re-hearing of the case, and as has been already stated, the provisions of the Travancore-Cochin Sales-Tax Act are similar. It follows that the omission in the rule by the controlling authority would not be of much importance, as the Act, itself confers on the Appellate Tribunal wide powers. A definite pronouncement on the first argument for vacating the Appellate Tribunals order, however, does not appear to us to be necessary, because the order of remand in this case is vitiated on the other ground. In this connection the dealers Advocate has relied on Arjan Singh v. Kartar Singh (AIR. 1951 S. C. 193) where their Lordships have reaffirmed what was earlier decided by the Privy Council concerning the exercise of powers under 0.41, R.27, CPC. After referring to the view of the Privy Council, Chandrasekhara Aiyyar, J., has at page 195, stated as follows:

"The true test, therefore, is whether the appellate Court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced."



6. That the aforesaid rule is of wider application, has been affirmed by the Supreme Court in State of U. P. v. Srivastava (AIR. 1957 S.C. 912), where it has been held that 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 the case at the proper stage and to fill in gaps. It follows that unless the appellate authority finds the record as it stands not sufficient for deciding the appeal, fresh evidence cannot be permitted. The position here is different, because the Appellate Tribunal is certain about the evidence already produced against the dealer to be insufficient, and the taxing authority was not asking for any fresh evidence to be produced. In these circumstances no fresh evidence could be admitted, and if the Tribunal cannot take fresh evidence, it cannot remand the case for the purpose. We do not think it is necessary to cite the several cases relied on by the dealers Advocate in support of the argument that what the Tribunal cannot do, it ought not to direct others to perform. It is clear that fresh evidence can be produced at the appellate stage only under certain circumstances and cases cannot be remanded to let in new evidence without such conditions precedent having been fulfilled; otherwise these conditions would become futile requirements. It follows that the order of remand in the case is wrong. We therefore think the assessment of sales-tax on the additional sum of Rs. 3,14,300/- in the dealers turnover has been wrongly made and should be reversed; and the tax would therefore stand on the turnover minus the aforesaid amount. The dealer in this case is entitled to costs of this revision petition, and we fix the Counsels fee at Rs. 150/. The order of the Tribunal is accordingly reversed.