TMI Blog2021 (4) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... d the order of the Tribunal dated 27.02.2020 upholding the same, are liable to be set aside and are hereby set aside. The petitioner's appeal against the order dated 29.03.2014 is now restored to the file of the First Appellate Authority, which shall dispose of such appeal on its own merits and in accordance with law as expeditiously as possible and in any case within two months from the date of production of an authenticated copy of this order. In this case interim relief was declined. Therefore if the Respondents have encashed the bank guarantees or the petitioner has paid the tax, the same shall abide by the orders that may be made by the First Appellate Authority - The parties to appear before the First Appellate Authority (other than Shri Ashok Rane) on 26.04.2021 at 11.00 a.m. and file the authenticated copy of this order. The First Appellate Authority to dispose of both the appeals i.e. appeals against assessment orders for 2008-09 and 2010-11 since common issues of law and fact are involved. Rule is made absolute in the aforesaid terms. - WRIT PETITION NO.252 OF 2020 - - - Dated:- 5-4-2021 - M. S. SONAK SMT. M.S. JAWALKAR, JJ. Mr. Tarun Gulati, Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, applied incorrect principles whilst considering the issue of bias raised by the petitioner, in the context of the order dated 14.01.2019, made by Shri Ashok Rane, the Additional Commissioner of Commercial Taxes (First Appellate Authority). He submits that the correct test is not actual bias but the reasonable apprehension of the bias or reasonable likelihood of bias. He submits that Shri Ashok Rane, as assessing officer, had already made an adverse order against the petitioner on 27.03.2012 for the Assessment Year 2008-09. The appeal against the order dated 27.03.2012 and the appeal against order dated 29.03.2014 for the Assessment Year 2010-11, came up for consideration before Shri Ashok Rane, who, by then, had become the Appellate Authority. Shri Rane recused from hearing the appeal for the Assessment Year 2008-09 but despite the protest of the petitioner, proceeded to hear and dispose of the appeal for the Assessment Year 2010-11. Mr. Gulati submits that the petitioner had expressed reasonable apprehension of bias and such concerns could not have been brushed aside by Shri Rane or for that matter the Tribunal. Mr. Gulati submits that in this manner, the petitioner wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of law. He submitted that merely because Mr. Rane had taken a particular view on the law, as an Assessment Officer, that did not preclude him from deciding an appeal involving a similar question of law. He submits that Shri Ashok Rane had recused himself in the appeal against the order dated 27.03.2012 for the Assessment Year 2008-09, because, he was the one, who made the order dated 27.03.2012 and could not have heard an appeal against his own order. Mr. Pangam however submitted that the order dated 29.03.2014 for the Assessment Year 2010-11 was not made by Shri Ashok Rane and therefore, there was no bias involved in Mr. Rane entertaining the appeal against the order dated 29.03.2014. He, therefore, urged that the contention of Mr. Gulati on the issue of bias may not be accepted. 8. Mr. Pangam submitted that this was not at all a case of retrospective application of tax legislations or this was also not a case where the taxing authorities lacked powers or jurisdiction to impose entry tax on the goods of the petitioner. He submitted that the provisions of the Entry Tax Act were intra vires and there was no merit in the challenges raised in this petition. 9. According to u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the appeal for the Assessment Year 2010-11. For the Assessment Year 2008-09, had held against the petitioner, virtually on the identical issue of both fact and law. The apprehension of bias entertained by the petitioner, in such circumstances, can hardly be said to be unreasonable or fanciful. 14. This issue of bias was specifically raised by the petitioner before the Tribunal. In the appeal memo, it was specifically stated that Shri Ashok Rane at the time of his recusal to hear the appeal for the Assessment Year 2008-09 had even agreed not to hear the appeal for the Assessment Year 2010-11. There was no denial on this aspect. However, the Tribunal, relying on the decision of this Court in Ganesh v. Parvatibai (2018) 3 ALL MR 285 rejected the contention based on Doctrine of Bias, by simply observing that it is for the judge concerned to decide whether to recuse or not. 15. According to us, the Tribunal, completely misconstrued the ratio of the decision in Ganesh (supra) the issue involved in Ganesh (supra) was not in the least comparable to the issue involved in the present matter. Even the facts and circumstances in Ganesh (supra) bore no comparison to the peculiar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal for the Assessment Year 2008-09, the principles of natural justice required that Shri Ashok Rane recuses himself from hearing the appeal for the Assessment Year 2010-11 as well, in the absence of any distinguishing features for the said assessment year. 18. In Narinder Singh Arora (supra) the Hon'ble Apex Court held that it is well settled that a person who tries a cause should be able to deal with the matter placed before him objectively, fairly, and impartially. No one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind or impartially. The broad principle evolved by this Court is that a person, trying a cause, must not only act fairly but must be able to act above suspicion of unfairness and bias. The Hon'ble Apex Court referred to its earlier decision in Manak Lal v. Prem Chand Singhvi - AIR 1957 SC 425 and held that in such cases the test is not whether, in fact, a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
