TMI Blog2019 (2) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer or Assistant Value Added Tax Officer. Section 74(b) provides for an appeal against an assessment made under the Regulation or any other order made under the Regulation to the Commissioner, when such decision has been made or order has been made or assessment has been made by the Assistant Commissioner, Deputy Commissioner or Joint Commissioner - The language of the proviso to Section 74(1) is clear and unambiguous. The proviso in clear terms mentions that only one appeal shall be made by the person against an assessment, decision or order. In view of the clear mandate in the proviso to Section 74(1), only one appeal is contemplated against any assessment, decision or order and therefore, the question of entertaining the second appeal by the Commissioner under clause (b) does not arise. In clearest terms and by employing the words “Such decision has been made or order has been passed or assessment has been made by the VAT Officer” the Legislature did not provide for a Second Appeal to the Commissioner nor designate him as the Second Appellate Authority. The proviso makes this position clear if at all there was any ambiguity. In our opinion, if proviso to Section 74 restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT PETITION NO. 516 OF 2019 - - - Dated:- 13-2-2019 - S.C. DHARMADHIKARI M.S. KARNIK, JJ. Mr. V. Sridharan, Senior Counsel a/w. Rahul Thakar I/b. Chandrakant Bhaishankar Thakar for petitioner. Shrishailya Sadashiv Deshmukh for respondents. JUDGMENT (PER M.S. KARNIK, J.): Rule. The respondents waive service. By consent, Rule made returnable forthwith. 2. These four Petitions involve common questions. The decision in Writ Petition No. 513 of 2019 would cover the controversy in the connected Petitions. For convenience we deal with the facts in Writ Petition No. 513 of 2019. 3. By this Petition filed under Article 226 of the Constitution of India, the petitioner has challenged the impugned order dated 9/11/2018 passed by the respondent No. 2 Commissioner of VAT, Daman, dismissing the Second Appeal filed by the petitioner thereby upholding the validity of the assessment order and imposition of penalty under Section 10(d) read with Section 10 A of the Central Sales Tax Act, 1956 (hereinafter referred to as the CST Act for short). 4. The facts of the case briefly stated are as under : The petitioner is engaged in Transport business and is granted d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the learned Senior Counsel, the Appeal has been entertained by the respondent No.2 on a misreading of the provisions of Section 74(1) of the Regulation of 2005. In his submission, the proviso to Section 74(1) clearly mandates that only one appeal shall be made by the person against any assessment, decision or order. According to him, the petitioner having preferred the First Appeal before the respondent No.4 against the assessment order, in view of the express language of the proviso to Section 74(1) of the Regulation of 2005, a further appeal (second appeal) was not maintainable. In his submission, it is only the Competent Administrative Tribunal established which had jurisdiction to hear appeal against the order passed by the First Appellate Authority. 9. Learned Senior Counsel invited our attention to the relevant provisions of the Central Sales Tax Act, 1956 (hereinafter referred to as 'CST Act' for short), Citizen's Charter in respect of the office of Administrative Tribunal, Panaji Goa and the Daman and Diu Value Added Tax (Amendment) Regulation, 2017 as well as Notification dated 17th July, 1970 issued by the Administrator of Goa, Daman and Diu. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his submission, the Appellate Tribunal has not been constituted under Section 73(1) of the Regulation of 2005. Even the Government has not notified any other Appellate Authority constituted or established to hear and dispose of the appeals under the Regulation of 2005. He would therefore contend that the question of the Second Appeal being heard by any other Tribunal does not arise, for neither the Government has constituted a Tribunal under the Regulation of 2005 nor is any other Appellate Tribunal notified to hear the appeals. He would therefore urge that the Administrative Tribunal, which was notified to hear the appeals in respect of those matters which the Tribunal under the Goa, Daman and Diu Sales Tax Act, 1964 (hereinafter referred to as 'the Sales Tax Act, 1964) is empowered to decide, would cease to have jurisdiction after the Regulation of 2005 came into force. 13. Learned counsel for the respondents would submit that Section 74(1) has provided a mechanism to the aggrieved person to redress his grievance by providing for two appeals. Relying on Section 66 (1) which provides for appointment of a person to be Commissioner of Value Added Tax, he submits that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law relating to levy of tax on sales or purchases of goods in the Union territory of Daman and Diu and to provide for matters connected therewith or incidental thereto. 18. In exercise of the powers conferred by Article 240 of the Constitution of India, the President promulgated the Regulations called The Daman and Diu Value Added Tax Regulation, 2005 19. Section 2(b) defines Administrator to mean the Administrator of the Union territory of Daman and Diu appointed by the President under article 239 of the Constitution ; Section 2(c) defines Appellate Tribunal as the Appellate Tribunal constituted under section 73. Section 66 provides for Value Added Tax Authorities . The same reads thus : 66.(1) For carrying out the purposes of this Regulation, the Government shall appoint a person to be the Commissioner of Value Added Tax. Section 73 provides for Appellate Tribunal . The relevant portion of which reads thus : 73.(1) The Government shall, as soon as may be after the commencement of this Regulation, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or decision has been revised, the appeal may be made in respect of such revision or amendment from which a person is aggrieved. (emphasis supplied by us) (2) .......... (3) .......... (4) .......... (5) .......... (6) .......... (7) .......... (8) .......... (9) .......... 21. A reading of relevant provisions of Regulation of 2005 thus reveals that under Section 66(1), the Government shall appoint a person to be the Commissioner of Value Added Tax for carrying out the purposes of the Regulation. The Government may, to assist the Commissioner in the administration of the Regulation, appoint as many Joint Commissioners of Value Added Tax, Deputy Commissioners of Value Added Tax, Assistant Commissioners of Value Added Tax, Value Added Tax Officers and other officers to be called as Value Added Tax Authority . Section 66 (4) provides that the Commissioner and the Value Added Tax Authorities shall exercise such powers as may be conferred upon them and perform such duties as may be required, by or under this Regulation. 22. Chapter XII of the Regulation provides for hearing of Appeals, Disputes and Questions. Section 74(1) prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be conferred upon them, and perform such duties as may be required, by or under this Regulation. In this view of the matter, though under Section 66, the Government has power to appoint a Commissioner of Value Added Tax for administration of this Regulation, the right of the Commissioner to hear the appeal is however regulated by clause (b) of Section 74(1). The proviso clearly reveals that an aggrieved person can file only one appeal against the assessment, decision or order. It is well settled principle of law that right of an appeal is a creature of a statute. A right of appeal inheres in no one and therefore, an Appeal, for its maintainability must have clear authority of law. A useful reference in this regard can be made to the decisions of the Apex Court in the case of (1) The Anant Mills Co. Ltd. vs. State of Gujarat (AIR 1975 SC 1234) and (2) Smt. Ganga Bai vs. Vijay Kumar ors (AIR 1974 SC 1126. Therefore, in our opinion, if proviso to Section 74 restricts the number of appeals, no further appeal against an order passed in appeal can lie to the Commissioner under clause (b) of Section 74(1) as a second appeal is not expressly provided in the Regulation. On the contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as conferred with the powers which a Tribunal under the Sales Tax Act, 1964 has. 30. Our attention is invited to the Citizen's Charter in respect of the office of Administrative Tribunal, Panaji Goa. In the said Charter, it is mentioned that the Administrative Tribunal established by Decree No.4627 dated 1/7/1918 and reconstituted under the Goa, Daman and Diu Tribunal Act, 1965, has very important role to play in the field of judicial services having jurisdiction of whole State of Goa. To the said Charter is annexed a statement showing jurisdiction of Administrative Tribunal under various Acts. There exists a provision under the Sales Tax Act, 1964 for filing a second appeal against the order of the Appellate Authorities, to the Tribunal. Our attention is also invited to the Official Gazette of Government of Goa, Daman and Diu dated 13th April, 1972. The Gazette Notification reads thus : In exercise of the powers conferred by sub section (9) of section 3A of the Goa, Daman and Diu Sales Tax Act, 1964 (4 of 1964) read with the Government Notification No. Fin(Rev)/2 36/Part/1310/70 dated 17 7 1970, the Tribunal hereby makes the following regulations, namely : 1. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal conferred powers as per the provisions of the Sales Tax Act, 1964 and the Notifications dated 17/7/1970 and 13/4/1972, would cease to be an Appellate Tribunal within the meaning of Section 73(1). In our opinion, the Administrative Tribunal empowered by the Notification dated 17/7/1970 and 13/4/1972 would continue to exercise the powers and discharge the functions conferred on the Appellate Tribunal by or under the Regulation of 2005 till the time Government constitutes a Tribunal under Section 73(1) or notifies any other Tribunal to act accordingly. We note that even the Appeal filed by the petitioner is styled as an Appeal before 'the Tribunal'. 34. We may also note that by a Notification dated 8 th July, 2003 issued in exercise of the powers conferred by Section 3 of the Goa, Daman and Diu Administrative Tribunal Act, 1965, the Administrator of Daman and Diu constituted an Administrative Tribunal for the Union territory of Daman and Diu to exercise the jurisdiction, perform the functions and discharge the duties entrusted to it by or under the Goa, Daman and Diu Administrative Tribunal Act, 1965 or any other law for the time being in force. The District and Sessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the commencement of this Act, repealed and re enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule form or bye law, made or issued under the repealed Act or Regulation, shall so far as it is not inconsistent with the provisions re enacted, continue in force, and be deemed to have been made or issued under the provisions so reenacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or by law made or issued under the provisions so re enacted. 39. Pertinently, Mr. Deshmukh does not dispute that the Notifications to which our attention has been invited by the petitioners are still in force. There is nothing brought on record by the respondents which indicates that these Notifications and the appointments thereunder are superseded. This to our mind concludes the matter. Reading of the above provisions leave no manner of doubt in our mind that the Notifications issued on 17th July, 1970 and on 13th April, 1972 are saved under the Regulation of 2005 and the repeal of the Sales Tax Act, 1964 has no effect on these Notifications. In fact, sub section (3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
