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TMI Blog2017 (12) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid question of law which is already formulated, during the course of hearing on the last date, we had indicated to the learned Counsel appearing for the parties that the following additional substantial question of law also arises for consideration: "Whether after constituting a Bench of three members in terms of Sub-Section (6) of Section 11 of the Maharashtra Value Added Tax Act, 2002 the learned President of the Maharashtra Sales Tax Tribunal could have passed an order that reference to a Bench of three members was unwarranted and whether the learned President could have alone disposed of the Appeal on merits?" 3. It is the aforesaid question which goes to the root of the matter. For deciding the said question, a brief referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members. It is further observed that it could be decided by a third Judge only as there is no disagreement between two Benches of the Tribunal. It further records that the Appeal was adjourned for delivery of judgment. Thereafter, the learned President on 7th December, 2016 proceeded to deliver the judgment which is impugned in this Appeal. 5. We must note here that considering the averments made in paragraph 5 of the Memorandum of this Appeal, we had called for a report from the learned President of the said Tribunal on factual aspects. Accordingly, a report is received. The report records that the roznama order of 5th December, 2016 signed by him is not correctly reproduced in paragraph 5 of the Memorandum of Appeal. Learned President st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r : Where the members of a Bench are equally divided, subject to the provisions of subsection (6) of section 21, the President, if he was not one of the members of the Bench, may himself hear on the point or points on which the members of the Bench differ or if he is of the opinion that the case involves a substantial point of law may refer it for hearing to one or more other members of the Tribunal, including himself when not a member of the original Bench." (underlines supplied) Regulation no. 28 lays down the procedure to be followed where members a Bench of the said Tribunal are equally divided. The said Regulation is crystal clear. When it is reported to the learned President that members of Bench are equally divided, if he is not one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only the said Bench could have come to the conclusion that the reference made to the said Bench of three members was unwarranted. Even in the report submitted by the learned President, he has not stated that even the other two members constituting the Bench of three members passed a similar order. The roznama shows that on 5th December, 2016, the Appeal was placed only before the learned President and the Roznama order was signed only by the learned President. Thus, the order that the reference was unwarranted has been passed only by one of the three members forming a part of the Bench of three members. Moreover, the parties were not heard on the question whether the reference to a larger Bench was unwarranted. It is for this reason that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 7th December, 2016 in VAT Appeal No. 23 of 2014 is hereby set aside and the said Appeal is restored to the file of the Maharashtra Sales Tax Tribunal; (b) The said Appeal shall be placed before the same larger Bench which heard the Appeal on 1st September, 2016; (c) The Appeal shall be heard afresh by the same Bench in accordance with law in the light of the observations made in the judgment and order; (d) We make it clear that we have made no adjudication on the merits of the controversy in the Appeal which is restored to the file of the Tribunal and all questions in that behalf are kept open; (e) Appeal is partly allowed in above terms with no order as to costs; (f) The report submitted by the learned President shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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