TMI Blog2012 (9) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... e Delhi VAT Tribunal to forbear hearing of Appeal in the composition it had on 29-8-2012 and 7-9-2012, and continue the hearing with the two members (i.e. the Chairman and Mr. D.C. Anand) according to its previous composition, when the matter was part heard, and the petitioner’s arguments had been concluded, on 27-8-2012. It is clarified that Ms. Nita Bali, Member (Administrative) shall not participate in the proceedings and she is however entitled to sit and hear all other cases in which she was a participant, either before her leave of absence, or after her re-joining the Tribunal, except in part heard cases or appeals, like in the present instance. The Tribunal shall take up the Petitioner’s appeals, subject to the above directions, at its utmost expedience, and decide its merits - Petition allowed. - W.P.(C) 5621/2012 - - - Dated:- 21-9-2012 - MR. S. RAVINDRA BHAT, MR. R.V. EASWAR MR. JJ. Petitioner:- Mr. Randhir Chawla and Ms. Renu Sahgal, Advocates. Respondents: Mr. A.K. Babbar, Advocate, for Resp. Nos. 2 and 3. MR. JUSTICE S. RAVINDRA BHAT 1. This writ petition challenges the functioning of the Appellate Tribunal, Value Added Tax (hereafter Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction to re-assess by the Ld. AA u/s 24 of the Delhi Sales Tax Act, 1975, without touching upon the merits of the reassessment orders. The order of that date also reflects that the members who heard the appeal were the Chairman, Mr. S.K. Kaushik, and Mr. D.C. Anand, member. In this background, when the appeals were taken up for hearing on 29-8-2012, the third member, Ms. Nita Bali, who had joined duties, after her leave of absence, also joined the bench which was hearing the petitioners appeals. At this, an objection was voiced on behalf of the petitioner, by its counsel that: ..this is a part heard matter before the Tribunal presided over by the Chairman and therefore, these three appeals be heard today by the Chairman and Member (J) as it is a part heard matter inasmuch as in these appeals arguments have been advanced on more than one occasion before the Tribunal presided over by the Chairman and the Member (J). He submitted that today this Tribunal is being presided over by the Chairman, Member (J) and Member (A) but this part heard matter cannot be heard by the bench of three members consisting of Chairman, Member (J) and Member (A). Therefore, the case be hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 73 of the Act and Regulation 35 of the VAT Tribunal Regulations, 2005 (hereafter the Regulations ) visualised situations where the Tribunal could only function with the participation of all members. The only exception, spelt out in Regulation 35, is when a member cannot hear the appeal or cause on account of conflict; in such case, the other members can hear the case. Barring this specific instance, it is not open to any litigant to insist that only a particular Bench composition is competent to hear its appeal. 7. Before proceeding further, it would be necessary to extract relevant provisions of the Delhi VAT Act and Regulations. They are as follows: DELHI VALUE ADDED TAX ACT, 2004 73. Appellate Tribunal (1) The Government shall, as soon as may be after the commencement of this Act, constitute an Appellate Tribunal consisting of one or more members, as it thinks fit, to exercise the powers and discharge the functions conferred on the Appellate Tribunal by or under this Act: PROVIDED that where the Appellate Tribunal consists of one member, that member shall be a person who has held a civil judicial post for at least ten years or who has been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers has any personal interest. Note : Family members‟ includes grand-parents, parents, his/her spouse, son, daughter (married/unmarried), grandson or grand-daughter. (2) Having any interest in the business of a dealer, or any past association with the subject matter of the appeal or application in any capacity, other than as Chairman or Member of the Tribunal, shall be deemed to be included in personal interest for the purpose of this regulation. (3) The proceedings of the Tribunal shall not be invalid merely because the Chairman or Member of the Tribunal withdraws from hearing any such matter. 8. The Petitioner s grievance is simple enough; it contends that once the Tribunal which at the relevant time consisted of two functioning members, the third having gone on leave- heard its appeals, substantially and the arguments of the revenue were scheduled, it was not open, mid-stream, as it were, for a change in composition of that body. Its argument is of prejudice, since the third member joining the proceeding, does not have the benefit of hearing its submissions. The revenue s argument is that the Tribunal is a composite body of three members; whatever its co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llohan v. Zachillhu 1992 Supp (2) SCC 651, by a Constitution Bench as follows: Where there is a lis - an affirmation by one party and denial by another - and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a court. Earlier, in Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala (1962) 2 SCR 339 the Supreme Court had succinctly explained the difference between Courts and Tribunals, thus: All Tribunals are not courts, though all courts are Tribunals . The word courts is used to designate those Tribunals which are set up in an organized state for the administration of justice. By administration of justice is meant the exercise of juridical power of the state to maintain and uphold rights and to punish wrongs . Whenever there is an infringement of a right or an injury, the courts are there to restore the vinculum juris, which is disturbed........ When rights are infringed or invaded, the aggrieved party can go and commence a querela before the ordinary Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form all the judicial functions of the State except those that are excluded by law from their jurisdiction. The word judicial , be it noted, is itself capable of two meanings. They were admirably stated by Lopes, L.J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson [1892] 1 Q.B. 431, in these words: The word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to being to bear a judicial mind - that is, a mind to determine what is fair and just in respect of the matters under consideration. That an officer is required to decide matters before him judicially in the second sense does not make him a Court or even a Tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest. Courts and Tribunals act judicially in both senses, and in the term Court are included the ordinary and permanent Tribunals and in the term Tribunal are included all others, which are not so included . 11. There can be no two opinions about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otive Tyre Manufactureres ... vs The Designated Authority Ors (2011) 2 SCC 258 the same principle was restated as follows: In the present case, admittedly, the entire material had been collected by the predecessor of the DA; he had allowed the interested parties and/or their representatives to present the relevant information before him in terms of Rule 6(6) but the final findings in the form of an order were recorded by the successor DA, who had no occasion to hear the appellants herein. In our opinion, the final order passed by the new DA offends the basic principle of natural justice. Thus, the impugned notification having been issued on the basis of the final findings of the DA, who failed to follow the principles of natural justice, cannot be sustained. It is quashed accordingly. 13. Apart from the obvious anomalies which would occur if the course suggested by the revenue were to be followed in this case, there is a more fundamental fallacy in that approach. The efficacy and existence of every organ of the state no less, Courts and Tribunals (as in this instance) rest on the public confidence they enjoy. Any act which tends to undermine that confidence has to be sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
