The appellate authority under the Orissa Sales Tax Act, 1947, has the discretion to allow new grounds of appeal to be taken and to make further enquiry as it thinks fit.

JUDGMENT :

Sikri S.M., J.

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 June 30, 1954, September 30, 1954, and December 31, 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?

2. 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 June 30, 1954.

3. The Sales Tax Officer, Cuttack I Circle, by his order dated October 29, 1956, assessed the respondent Babu Lal Chhappolia, hereinafter referred to as the assessee, in respect of a turnover of Rs. 2,46,995. The assessee had sold the cloth imported from outside the State and he claimed deduction under old rule 64 but the Sales Tax Officer disallowed 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.

4. The learned counsel for the State, Mr. A.V. Viswanatha Sastri, states that the appeal was heard on April 16, 1957, and order was reserved but somehow the appellate authority did not pass any order. The appeal was heard again on May 12, 1959, and by order dated September 17, 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 letter's business and in lieu thereof he earned commission at 11/2% and that he was not a seller or a purchaser. The Assistant Commissioner accepted this contention.

5. 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."

6. 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 January 6, 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."

7. On January 6, 1962, however, the appeals were taken up for disposal ex parte and the