2013 (2) TMI 655 - HC - VAT and Sales Tax

Whether, in the facts and circumstances of the present case, the learned Chairman of the Tribunal was justified in constituting a new Bench even after two Members out of the three-Member Bench had already signed the order? Held that - Tribunal having decided the appeal vide order dated April 4, 2011, the same could not have been posted for rehearing and decided vide order dated May 31, 2012. Such an order is not an order of review and is not tenable on any ground. The argument that the appellant is estopped to challenge the said order is again not tenable. Though it is asserted that the appellant was not aware of the fact that the Members have signed the order, but the fact remains that the equitable principle of estoppel cannot be applied in a case where a conclusive order has been passed by a statutory authority. An order thus passed by subsequent Bench cannot be permitted to be upheld on the equitable doctrine of estoppel. Consequently, the question of law is answered in favour of the assessee and it is held that the order of the Tribunal dated April 4, 2011 could not be set aside, reviewed or recalled in any manner on administrative side by way of mechanism of constitution of fresh Tribunal.

Issues Involved:
1. Whether the Chairman of the Tribunal was justified in constituting a new Bench after two Members of a three-Member Bench had already signed the order.
2. Whether the failure to communicate the signed order to the appellant affects its validity.
3. Whether the Tribunal became functus officio after signing the order.
4. Whether the appellant is estopped from challenging the subsequent orders.

Issue-wise Detailed Analysis:

1. Constitution of a New Bench:
The primary issue was whether the Chairman of the Tribunal was justified in constituting a new Bench after two Members of a three-Member Bench had already signed the order. The court found that the constitution of a new Bench was not tenable in law. The majority Members had signed the order on April 4, 2011, after hearing arguments on March 16, 2011. The order was dictated, typed, and signed by two Members, and the third Member neither signed nor dissented before his retirement. The court held that once the majority Members have signed the order, the Tribunal becomes functus officio, meaning it has fulfilled its function and cannot review its decision unless permitted by statute or rules.

2. Failure to Communicate the Order:
The court addressed whether the failure to communicate the signed order to the appellant affects its validity. The court held that the communication of the order to the parties was a ministerial act. If the ministerial staff failed to communicate the order, it would not render the order passed by the majority Members as nugatory. The inaction of the ministerial staff cannot override the majority opinion of the Members of the Tribunal. The court cited the Supreme Court judgment in State Bank of India v. S.N. Goyal, which stated that a quasi-judicial authority becomes functus officio when its order is pronounced, published, notified, or communicated.

3. Tribunal Becoming Functus Officio:
The court examined whether the Tribunal became functus officio after signing the order. The court held that the Tribunal had indeed become functus officio after the majority Members signed the order on April 4, 2011. The court cited the Supreme Court judgment in Surendra Singh v. State of Uttar Pradesh, which held that a judgment becomes operative when it is formally declared in open court. The court emphasized that the failure of the ministerial staff to communicate the order does not entitle the Chairman to reconstitute another Bench to rehear the appeal.

4. Estoppel Against the Appellant:
The court addressed whether the appellant is estopped from challenging the subsequent orders. The court rejected the argument that the appellant is estopped from challenging the subsequent orders. The court noted that the appellant asserted it was unaware that the Members had signed the order. The court held that the equitable principle of estoppel cannot be applied where a conclusive order has been passed by a statutory authority. An order passed by a subsequent Bench cannot be upheld on the equitable doctrine of estoppel.

Conclusion:
The court concluded that the Tribunal's order dated April 4, 2011, could not have been set aside, reviewed, or recalled by constituting a new Bench. The question of law was answered in favor of the appellant, and it was held that the order of the Tribunal dated April 4, 2011, remains valid. The parties were allowed to take recourse to such remedies as available against the order dated April 4, 2011, in accordance with the law.

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