Fresh evidence before the Tribunal is barred absent Rule 61 compliance, so unauthorised affidavits need not be considered.

Fresh evidence before the Tribunal is admissible only within the limited exceptions in Rule 61 of the Orissa Sales Tax Rules, and a party must satisfy the prescribed conditions before such material can be treated as legally admitted. Where no proper application is made and no substantial cause or other permissible basis is shown, affidavits filed at the second appellate stage remain outside the record. In that situation, the Tribunal is under no duty to consider them or record reasons for not doing so, because non-consideration of material not legally before it cannot found a valid grievance based on omission to decide an issue.

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Issues: Whether affidavits filed before the Tribunal at the second appellate stage, without compliance with the conditions governing fresh evidence, were legally before it so as to require consideration and reasons; and consequently whether the question relating to non-consideration of those affidavits arose out of the Tribunal's order.

Analysis: The statutory scheme barred fresh evidence before the Tribunal except in the limited situations specified in Rule 61 of the Orissa Sales Tax Rules, which corresponded in substance to the restrictive rule governing additional evidence in appellate proceedings. The assessee did not move any proper application, did not show that the affidavits fell within any permissible exception, and did not establish that they were required for enabling the Tribunal to pass orders or that there was any substantial cause for their reception. In the absence of compliance with the rule, the affidavits could not be treated as legally admitted evidence. If the documents were not legally before the Tribunal, omission to deal with them could not be treated as a failure to decide an issue raised before it.

Conclusion: The affidavits were not properly before the Tribunal, and the Tribunal was under no obligation to consider them or give reasons for not doing so. The question based on their alleged non-consideration did not survive in the assessee's favour.

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