2018 (5) TMI 4 - HC - VAT and Sales Tax

Majority order of the Tribunal - whether the impugned order passed by only four members of the Tribunal is without authority of law? - Held that - As per Section 57, the Tribunal is to be constituted of three or more odd number of members including the Chairman - When a matter is heard by a Bench of a Court or a Tribunal, the members of the Bench discharge their functions as a composite body functioning together. In the present case, at the time of pronouncement, one of the members ceases to be a member of the Tribunal, the opportunity to do so also ceases. It is axiomatic that if at the time of pronouncement all the members of the Bench are not available, on account of any of them having demitted office, the Bench as constituted and the Bench that heard the matter does not exist and cannot, therefore, pronounce the judgment. The decision may be unanimous or a split decision that will not mean that apart from the majority members other members may not even decide the matter. Appeal allowed.

Summary

Issues involved:
1. Interpretation of entry 38B of Schedule-B of the Haryana VAT Act regarding the classification of Aluminium Phosphide (Celphos) as a tax-free item.
2. Validity of an order passed by a Tribunal with fewer members than required by law.

Analysis:
1. Interpretation of entry 38B of Schedule-B:
The appellant challenged the order of the Haryana Tax Tribunal, which held that Aluminium Phosphide (Celphos) is not covered under entry 38B of Schedule-B of the Haryana VAT Act, meaning it is not classified as a tax-free item. The appellant raised substantial questions of law regarding this interpretation. The State Government clarified that Celphos is not covered under the mentioned entry. The appeal was admitted on one of the substantial questions, and the Court decided in favor of the appellant on the issue of the Tribunal's authority to hear the matter.

2. Validity of Tribunal's order with fewer members:
The Tribunal, which consisted of five members, heard the appeal, but one member retired before the order was pronounced. The remaining four members passed the order. The Court analyzed Section 57 of the Haryana VAT Act, which mandates the Tribunal to consist of three or more odd-numbered members. The Court held that a Tribunal functions as a composite body, and until the judgment is pronounced, all members must be available. Citing a Supreme Court decision, the Court emphasized that the judgment must be a declaration of the collective mind of the Tribunal at the time of pronouncement. The Court distinguished a Delhi High Court case and ruled in favor of the appellant, setting aside the previous order and remitting the matter to the Tribunal for a fresh decision in accordance with the law.

In conclusion, the High Court of Punjab and Haryana addressed the issues of interpreting the relevant entry of the Haryana VAT Act and the validity of the Tribunal's order passed with fewer members. The judgment clarified the legal principles governing the functioning of Tribunals and emphasized the importance of a collective decision by all members before pronouncing an order.