- (1.) These three appeals by special leave are directed against the judgment of the High court of orissa in three references made to it by the Sales Tax tribunal under section 24 (1) of the orissa Sales Tax Act, 1947, hereinafter referred to as the Act. The three references concerned were for assessments for three quarters ending 30/06/195 4/09/1954, and 31/12/1954. The following two questions were referred for the opinion of the court in all the references: (i) Is it correct to hold (as the tribunal has held) that the Assistant Commissioner of Sales Tax while disposing of an appeal under section 23 (2) of the Orissa Sales Tax Act is not entitled to take into consideration revised returns and additional grounds of appeal which may be different from the grounds taken in the memorandum of appeal and whether for the first time at the hearing of appeal, such grounds may or may not be entertained (ii) Whether on the facts and circumstances of the case and the documents on record, pointing to the contrary, the order of the tribunal can be maintained as valid in law It is not necessary to give the facts relevant to all the three quarters. It will be sufficient if we set out the facts relevant to first. quarter, i. e. , quarter ending 30/06/1954. The Sales Tax Officer, Cuttack I Circle, by his order dated 29/10/1956, assessed the respondent Babu Lal Chhapolia, hereinafter referred to as the assessee, in respect of aturnover of Rs. 2,46,995. 00. The assessee had sold the cloth imported from outside the State and he claimed deduction under old rule 64 but the Sales Tax Officerdisallowed the claim as the assessee was deemed to have effected the first point of sale in orissa. The assessee filed an appeal before the Assistant Commissioner of Sales Tax, Cuttack Range. The learned counsel for the State, Mr. A. V. Viswanatha Sastri, states that the appeal was heard on 16/04/1957, and order was reserved but somehow the appellate authority did not pass any order. The appeal was heard again on 12/05/1959, and by order dated 17/09/1959, the Assistant Commissioner allowed the appeal, and as a result the assessment was reduced to the figures returned by the assessee. The learned counsel for the appellant states that a fresh return was taken by the Assistant Commissioner and the assessee filed a copy of the agreement between the assessee and Ram Prasad Tormal and raised a fresh point before the Assistant Commissioner that the assessee had worked as an agent of Ram Prasad Tormal to do certain service for him to facilitate the latter's business and in lieu thereof he earned Commission at 11% and that he was not a seller or a purchaser. The Assistant Commissioner accepted this contention. It may be noted here that the Sales Tax Officer was not represented before the Assistant Commissioner. The State filed an appeal against this order and the Sales Tax tribunal allowed the appeal. The appellate order is a short order and it reads as follows :. "for the reasons mentioned in the order passed in second appeal No. 416 of 1959-60 disposed of today this appeal is allowed. ". ; But the order in the second appeal No. 416 has not been printed in the paper book. The assessee thereupon filed an application under section 24 (1) of the Act to the tribunal requesting that the statement of the case be drawn up and referred to the High court. In this application in para 6 it is stated : ".. Opposite party preferred second appeals Nos. 572 to 577 of 1959-60. These appeals were posted for hearing on several dates when the State of orissa took adjournments. When the appeals were posted to 6/01/1962, on the day before, i. e. , 5th of January, 1962, the petitioner's counsel asked for an adjournment and the learned Member had consented thereto. The adjournment was asked for in the presence of the learned State Representative. "on 6/01/1962, however, the appeals were taken up for I disposal ex parte and the learned Member allowed the appeals filed by the State without going into the merits thereof. In para 9 the assessee suggested four questions of law but by order dated 19/05/1962, the Sales Tax tribunal referred two questions, which have already been set out. In this order reference is made to the orders passed in reference case No. 89 of 1961-62, but these orders are not printed in the paper book. The High court after giving the -facts considered the question whether in exercise of its appellate powers the Sales Tax tribunal was justified in saying that the Assistant Commissioner committed an error of law in allowing a new question to be raised for the first time, which was not mentioned in the original return at the time of assessment. The High court held that in view of section 23 (2) of the Act, and rule 50 of the orissa Sales Tax Rules, the question. was ultimately one of discretion conferred on the Assistant Commissioner and no limitation could be placed on that discretion. It further observed : "It was open to the Member, Sales Tax tribunal, while hearing the second appeal to examine the propriety of the order of the Assistant Commissioner on the materials available and also on the additional material that he may care to admit and then to set aside that order on other grounds, if he chose, but he should not have held that the order was illegal. "in the result the High court answered the questions as follows : " (1) The tribunal was not right in saying that in disposing of an appeal under section 23 (2) of the orissa Sales Tax Act, the Assistant Commissioner (first appellate authority) was not entitled to take into consideration additional grounds of appeal different from those taken in the memorandum of appeal. (2) The order of the Tribunal could not therefore be maintained as valid in law. " The learned counsel for the appellant has raised four points before us: 1. It is not competent to an appellate authority to accept a fresh return and on the basis of the fresh return set aside the order of the assessing authority.
(2.) If fresh evidence is received and utilised for setting aside the order of the assessing authority, notice should have been given to the assessing authority. 3. In any view the appellate authority should not have allowed a ground of exemption from sales tax on a basis different from that claimed before the assessing authority. 4. The High court should have made it clear that the Tribunal would be entitled to go into the merits after receipt of the judgment of the High court. The first point does not seem to have been raised before the High court. Further the questions referred do not raise the problem whether a revised return can be filed or not. The only point raised with respect to a revised return is whether it can be taken into consideration. If the appellate authority has the power to allow a newground to be taken, does it matter in what -manner it allows it to be taken Instead of a revised return it could have taken a written statement containing the new ground. Therefore, we do not consider it necessary to deal with the point whether it is competent for the appellate authority to accept a revised return or not. Regarding the second point it is necessary to notice the relevant statutory provisions. Section 23 (2) of the Act provides : "Subject to such rules as may be made or procedure as may be prescribed, the appellate authority, in disposing of any appeal under Ss. (1) , may- (a) confirm, reduce, enhance or annul the assessment or penalty, if any, or both, or (b) set aside the assessment or penalty, if any, or both and direct the assessing authority to pass a fresh order after such further enquiry as may. be directed. "rule 50 (2) provides: "the appellate authority may, before disposing of any appeal make such further-enquiry as it thinks fit or cause further enquiry to fee made by the Assistant Sales Tax Officer or the Sales Tax Officer, as the case may be. " Rule 51 provides: "notice to person likely to be adversely affected.-Before an order is *passed on appeal, if such order is likely to affect any person other than the appellant adversely, such other person shall be given a reasonable opportunity of being heard. " There is no express provision for making the Sales Tax Officer a party to the appeal or requiring the appellate authority to issue a. notice to the Sales Tax Officer. There is no such provision as exists in section 31 (1) of the Indian Income-tax Act, 1922, requiring that at the hearing of an appeal against an order of the Income-tax officer, the Income-tax Officer shall have a right to be heard either in person or by a representative. " In view of the absence of such a provision it seems to us that the appellate authority is virtually in the same position as the Sales Tax Officer and the Act and the Rules do lot contemplate that a notice should be issued to the Sales Tax Officer. Before the tribunal, which is the second appellate authority, there are two parties and rule 58 requires that a notice should be issued to the opposite party. We are, therefore, of the opinion that there is no substance in point No. 2 raised by Mr. Sastri. Regarding the third point we are of the opinion that it is not to Mr. Sastri to raise this point before us. This point was not before the High court and at any rate we do not see how thispoint is germane to the questions referred to the High court. As we have mentioned above, the appeal was heard exparts and it appears that the Sales Tax tribunal allowed the appeal on the ground that the Assistant Commissioner had no authority under the law to allow a question to be raised which would conflict with the return filed by the dealer-respondent. This is how the tribunal dealt with the question : "coming to the question involved in the second appeals filed by the State as against the assessments for the quarters ending on 30/06/1954, to 31/12/1954, l-have no doubt that the first appellate authority was wrong in allowing an entirely new question to be raised for the first time before him: No doubt he was as much an enquiring officer as the assessing officer. It is also permissible to him to allow anew question to be raised for the first time before him. But certainly it was not permissible for him to raise a question which would conflict with the return filed by the dealer-respondent. The return clearly shows his turnover from sales of cloth. The only claim made in these quarters was that the sales were exempted from taxation under the old rule 6.4 as he did not effect the sale at the first point. Before the first appellate authority the point taken up by the respondent was that he effected no sales and the sales effected were of his principal. Thus. the new plea challenges the very basis of the return filed by the dealer-respondent and could not and should not have been allowed by the first appellate authority. Hence l allow the appeals filed by the State, set aside the order of the first appellate authority and restore the order passed by the assessing officer for these quarters. " It is clear from this passage that the Sales Tax tribunal did not go into the merits of the case at all, i. e. , whether it is established that the assessee was an agent or not and if an agent, was assessable or not as a dealer. The next point raised is again not germane to the questions referred to the High court. It is for the tribunal to act in accordance with section 24 (5) of the Act and to dispose of the case according to the judgment of the High court or of this court. Neither the High court nor this court can give directions to the tribunal, while dealing with a reference, regarding the manner of disposal of a case after the receipt of the judgment on the reference. In the end Mr. Sastri contends that the answer to question No. 2 should be modified because as it stands now it may indicate to the tribunal that the order was completely void. We think there is some reason for the apprehension of the learned counsel and we will makeit clear that what the High court and what we are saying is that the tribunal was in error in reversing the order of the Assistant Commissioner on the ground that the Assistant Commissioner had no authority to permit an entirely new question to be raised for the first time before him, or as the; tribunal put it " that it was not permissible for him to raise a question which would conflict with the return filed by the dealer-respondent. " In view of this we would modify the answer to question No. 2 as follows : "Order of the tribunal could not, therefore, be maintained as correct in law. "in the result the appeals fail and are dismissed with costs. One hearing fee.;