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TMI Blog2016 (2) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... C) 2694/2015 & CM APPL 4815/2015 (stay), W.P.(C) 2698/2015 & CM APPL 4820/2015 (stay), W.P.(C) 2815/2015 & CM APPL 5049/2015 (stay), W.P.(C) 3663/2015 & CM APPL 6521/2015 (stay), W.P.(C) 7632/2014 & CM APPL 17976/2014 (stay), W.P.(C) 7689/2014 and CM APPL. 18101/2014 (stay), W.P.(C) 8156/2014 & CM APPL 18996/2014 (stay), W.P.(C) 8718/2014 & CM APPL 20047/2014 (stay), W.P.(C) 8719/2014 & CM APPL 20049/2014 (stay), W.P.(C) 387/2015 & CM APPL 638/2015 (stay), W.P.(C) 403/2015 & CM APPL 678/2015 (stay), W.P.(C) 2535/2015 & CM APPL 4528/2015 (stay), W.P.(C) 2537/2015 FRANKE FABER INDIA LTD., M/S BHUPINDER AUTO INTERNATIONAL, DCW LTD. , H.G. INTERNATIONAL , ESS ESS METAL ENTERPRISES , TANYA ENTERPRISES , ELECTRONIC CORPORATION OF INDIA , GRAVISS HOSPITALITY LTD. , COUNTRYWIDE NETWORK PVT. LTD. , DEV EXPORTS, FOOD WORLD , ALLIED IMPEX PVT. LTD. BERCO'S MELODY HOUSE , ALLIANCE PETROLEUM PVT. LTD. VIKAS PLASTICS, S. L. ENTERPRISES, LAKRA OIL TRADING CO. ,KHERA SALES CORPORATION , RICHI RICH RESTAURANT PVT. LTD., KROSS DIAMONDS PVT. LTD., KAPUR GEMS PVT. LTD. ORDER Dr. S. Muralidhar, J.: 1. The common question that arises in these appeals and writ petitions is whether a single Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect. As a result only Mr. D.C. Anand remained as the Member (Judicial) of the AT. 6. Thereafter the GNCTD invited applications for appointment of Members of AT on 7th September 2013. On 11th July 2014, by two separate notifications issued under Section 73(1) of the DVAT Act, the GNCTD appointed a Member (Judicial) and a Member (Administrative) respectively. 7. During the period between 1st August 2013 and 28th July 2014 (the date from which the two new members joined), only Mr. Anand continued as Member (Judicial). He continued to exercise the powers and functions of the AT. He inter alia heard the appeals of the Appellants and Petitioners herein. Preliminary issue 8. In response to a specific query from the Court, whether in any of these matters the Appellants or Petitioners (hereafter 'Assessees') had raised an objection before Mr. Anand, who heard their appeals, that he did not have jurisdiction to do so, the reply was in the negative. It appears that while at the time of filing of some of the appeals, and even at the time of passing an order of pre-deposit, the AT may have comprised of two or more members, by the time the appeal was taken up for final hearing only M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Narvekar v. State of Goa (2005) 6 Bom CR 341, C.K. Doraiswamy Naidu v. State of Andhra Pradesh 1966 (12) FLR 248 (Hyd) and Kama Umi Isa Ammal v. Rama Kudumban AIR 1953 Madras 129. Submissions of the GNCTD 13. Countering the above submissions, it was contended by Mr. Peeyoosh Kalra and Mr. Satyakam, Additional Standing Counsel for GNCTD that under Section 73(1) of the DVAT Act, the GNCTD could constitute an AT consisting of one or more members. It was pointed out that the proviso to Section 73(1) of the Act envisages a single member of the AT, qualified to hold the post of Member (Judicial) functioning as the AT. A reference was also made to Section 73(4) of the DVAT Act which contemplates a vacancy being caused in the AT which is required to be filled up by the GNCTD "as soon as practicable". Attention was also drawn to Regulation 35 of the Delhi Value Added Tax Appellate Tribunal Regulations, 2005 ('AT Regulations') which provides that the proceedings of the AT will not be invalid merely because the Chairman or a Member of the AT withdraws from hearing a matter. Considerable reliance was placed by the Respondents on the decision of this Court in Kwality Restaurant & Ice Cream ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition has been explained by the Division Bench of this Court in Kwality Restaurant & Ice Cream Co. v. Commissioner, VAT (supra). A perusal of the said decision shows that the Assessee therein had its appeal heard by a two-member AT at a time when the AT comprised of three members. The hearing of the appeal was more or less concluded and it was at the stage of final arguments when the third member of the AT joined the proceedings. An objection was immediately raised by the Assessee therein to the expansion of the quorum of the AT to include the Member (Technical) who had till then been away on account of leave or absence and had not participated in the hearing. With the AT negativing the objection, the Assessee filed a writ petition in this Court questioning the correctness of the said order of the AT. 19. It is significant that the respective stands of the Assessee and the Department of Trade and Taxes (DTT) in the aforesaid case is converse of their respective stands in the present case. In Kwality Restaurant & Ice Cream Co. v. Commissioner, VAT (supra) the contention of the Assessee was that it would be unfair to the Assessee if a third member of the AT is permitted to participa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90 STC 263 (SC); [1990] 186 ITR 722 one of the members of the VAT Tribunal can, by no stretch of the imagination, result in its becoming dysfunctional, or being unable to function." 21. The Court further proceeded to observe that the conspectus of the DVAT Act and the AT Regulations reveal that an AT discharges judicial functions. Even if there were anomalies in the provisions, anything which tends to undermine the public confidence in the AT has to be "shunned and wherever necessary, cured". In the facts and circumstances, the Court passed an order forbearing the third Member (Technical) from participating in the proceedings in the appeal in question any further and also directed the appeal to be disposed of by the AT comprising two members who heard it at the first place. The decision in Kwality Restaurant & Ice Cream Co. v. Commissioner, VAT (supra) underscores that the legislative intent was that of continuity of the AT and not its cessation because of a vacancy in its membership. 22. As far as the present case is concerned, the Court finds that it is only on account of the vacancies created by the removal of the two of the three members comprising the AT, that the remaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be available on 27th October 1949 he could not resume sitting as a Member of the IT with the other two members in the absence of a notification under Section 7 of the ID Act. 26. In The United Commercial Bank Ltd. v. Workmen (supra) the Constitution Bench of the Supreme Court analysed the relevant provisions and noticed a distinction between Section 7 of the ID Act which talked of appointments of two or more members of the IT and Section 8(1) of the ID Act which talked of vacancy in the membership of the Board or IT. It was held that under Section 5(4) of the ID Act when a member of the Board is absent or there is a vacancy, "the Board is permitted to act, notwithstanding such absence, provided there is the prescribed quorum. Such quorum is fixed by the rules of framed" by the appropriate Government. It was observed that in terms of the proviso to Section 5(4) of the ID Act, where the services of a Chairman or Member of the Board had ceased to be available, the Board would not act "until a new Chairman or a member, as the case may be, has been appointed". 27. The very wording of the relevant provisions of the ID Act is different when compared to the provisions of the DVAT Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember (Judicial) who remained in the AT. There was no question of a notification being issued under Section 73(9) of the DVAT Act to constitute a bench of the AT. There was no bar to Mr. Anand continuing to function as an AT. The de facto doctrine 31. Even assuming that Mr. Anand lacked jurisdiction to hear the appeals and petitions as the AT, by applying the de facto doctrine it could be held that the decision taken by him as a single Member of the AT would nevertheless get validated on this score. Here the rational appears to be that no litigant should suffer on account of the delays and uncertainties only because a vacancy is created in the AT. The law in this regard has been succinctly explained in the decision in Gokaraju Rangaraju v. State of AP (1981) 3 SCC 132 where the Supreme Court observed as under: "17. A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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