S.H.A.Raza, J. - (1.) Section 12-B of the U.P. Trade Tax Act, 1948, which provides for furnishing or giving additional evidence reads as under : "The assessee shall not be entitled to produce additional evidence, whether oral or documentary, before the appellate authority or the Tribunal except where the evidence sought to be adduced is evidence, which the assessing authority had wrongly refused to admit or which after exercise of due diligence was not within his knowledge or could not be produced by him before the assessing authority, and in every such case, upon the additional evidence being taken on record, reasonable opportunity for challenge or rebuttal shall be given to the Commissioner."
(2.) In the instant case the applicant-revisionist sold certain goods to the tune of Rs. 1,25,818.50 but did not file form III-C(5) (which has been mentioned as form III-D in the order of Tribunal) before assessing authority. As according to the revisionist-applicant the same was not available to him at the relevant time, the said form was filed at the stage of second appeal before the U.P. Trade Tax Tribunal, Lucknow Bench. The said additional evidence which was sought to be produced by the revisionist was not admitted by the Tribunal during the pendency of second appeal. The appeal was dismissed as only the ground of non-acceptance of form III-C was raised in the appeal. Thereafter the present revision has been filed on behalf of the State.
(3.) The learned Standing Counsel submitted that under Section 12-B of the U.P. Trade Tax Act the Tribunal has been vested with the discretion to reject the additional evidence, if sought to be produced by the assessee, if it could be produced earlier. The revisionist-applicant failed to produce the form III-C before the assessing authority and thereafter before the 1st appellate court, hence it cannot be said that the revisionist-applicant acted diligently. It was asserted that no reason except that it was not available with the assessee was indicated in the appeal.;