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TMI Blog2016 (2) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 CM No.18998/2014, ST.APPL. 84/2014, ST.APPL. 87/2014, W.P.(C) 4537/2014 CM APPLS 9045/2014 (for stay) 9644/2014 (leave to amend), 9645/2014 (for stay), W.P.(C) 6337/2014 CM APPL 15274/2014 (stay), W.P.(C) 5875/2014 CM APPL 14408/2014, W.P.(C) 6765/2014 CM APPL 16005/2014 (stay), W.P.(C) 6768/2014 CM 16011/2014 (stay), W.P.(C) 6770/2014 CM APPL 16019/2014 (stay), W.P.(C) 7615/2014 CM APPL 17944/2014 (stay), W.P.(C) 2694/2015 CM APPL 4815/2015 (stay), W.P.(C) 2698/2015 CM APPL 4820/2015 (stay), W.P.(C) 2815/2015 CM APPL 5049/2015 (stay), W.P.(C) 3663/2015 CM APPL 6521/2015 (stay), W.P.(C) 7632/2014 CM APPL 17976/2014 (stay), W.P.(C) 7689/2014 and CM APPL. 18101/2014 (stay), W.P.(C) 8156/2014 CM APPL 18996/2014 (stay), W.P.(C) 8718/2014 CM APPL 20047/2014 (stay), W.P.(C) 8719/2014 CM APPL 20049/2014 (stay), W.P.(C) 387/2015 CM APPL 638/2015 (stay), W.P.(C) 403/2015 CM APPL 678/2015 (stay), W.P.(C) 2535/2015 CM APPL 4528/2015 (stay), W.P.(C) 2537/2015 FRANKE FABER INDIA LTD., M/S BHUPINDER AUTO INTERNATIONAL, DCW LTD. , H.G. INTERNATIONAL , ESS ESS METAL ENTERPRISES , TANYA ENTERPRISES , ELECTRONIC CORPORATION OF INDIA , GRAVISS HOSPITALITY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dministrative Member). On 18th June 2012, Section 73 of the DVAT Act was amended to insert sub-section (9), which empowered the GNCTD to constitute benches comprising of one or more members through a notification. Admittedly, as far as the AT was concerned, no notification under Section 73(9) of the DVAT Act has been issued till date. 5. On 31st July 2013, the Lieutenant Governor ( LG ), GNCTD removed Mr. Kaushik and Ms. Bali from the AT with immediate effect. As a result only Mr. D.C. Anand remained as the Member (Judicial) of the AT. 6. Thereafter the GNCTD invited applications for appointment of Members of AT on 7th September 2013. On 11th July 2014, by two separate notifications issued under Section 73(1) of the DVAT Act, the GNCTD appointed a Member (Judicial) and a Member (Administrative) respectively. 7. During the period between 1st August 2013 and 28th July 2014 (the date from which the two new members joined), only Mr. Anand continued as Member (Judicial). He continued to exercise the powers and functions of the AT. He inter alia heard the appeals of the Appellants and Petitioners herein. Preliminary issue 8. In response to a specific query from the Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no provision in Section 73 or any other provision of the DVAT Act to that effect. It is accordingly contended that all decisions taken by Mr. Anand sitting singly as Member (Judicial) of the AT should be declared to be invalid by this Court. 12. Apart from the reliance being placed by the Assessees on the decision of the Constitution Bench of the Supreme Court in The United Commercial Bank Ltd. v. Workmen (supra), reliance was also placed on the decisions in Subhash G. Narvekar v. State of Goa (2005) 6 Bom CR 341, C.K. Doraiswamy Naidu v. State of Andhra Pradesh 1966 (12) FLR 248 (Hyd) and Kama Umi Isa Ammal v. Rama Kudumban AIR 1953 Madras 129. Submissions of the GNCTD 13. Countering the above submissions, it was contended by Mr. Peeyoosh Kalra and Mr. Satyakam, Additional Standing Counsel for GNCTD that under Section 73(1) of the DVAT Act, the GNCTD could constitute an AT consisting of one or more members. It was pointed out that the proviso to Section 73(1) of the Act envisages a single member of the AT, qualified to hold the post of Member (Judicial) functioning as the AT. A reference was also made to Section 73(4) of the DVAT Act which contemplates a vacancy bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 73(4) of the Act makes this position explicit. It states that the Government will endeavour to fill up the vacancy as soon as practicable . It does not say that till such time the vacancy is not filled up, the AT cannot function as such. In the absence of any prohibition in the AT functioning as such with the remaining members when a vacancy is caused, it cannot be presumed that an AT with a lesser number of members than those appointed initially cannot function as an AT. 18. This position has been explained by the Division Bench of this Court in Kwality Restaurant Ice Cream Co. v. Commissioner, VAT (supra). A perusal of the said decision shows that the Assessee therein had its appeal heard by a two-member AT at a time when the AT comprised of three members. The hearing of the appeal was more or less concluded and it was at the stage of final arguments when the third member of the AT joined the proceedings. An objection was immediately raised by the Assessee therein to the expansion of the quorum of the AT to include the Member (Technical) who had till then been away on account of leave or absence and had not participated in the hearing. With the AT negativing the objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e., in terms of regulation 35, is insubstantial. For one, that regulation is not part of the statute; secondly, it states an obvious rule, which all members of judicial and quasi-judicial bodies have to follow. Its absence would in no whit undermine the principle it gives shape to. It would be useful to recollect that every Tribunal is clothed with incidental and ancillary powers to effectuate its orders, and carry out its functions effectively (Union of India v. Paras Laminates (P) Ltd. [1991] 90 STC 263 (SC); [1990] 186 ITR 722 one of the members of the VAT Tribunal can, by no stretch of the imagination, result in its becoming dysfunctional, or being unable to function. 21. The Court further proceeded to observe that the conspectus of the DVAT Act and the AT Regulations reveal that an AT discharges judicial functions. Even if there were anomalies in the provisions, anything which tends to undermine the public confidence in the AT has to be shunned and wherever necessary, cured . In the facts and circumstances, the Court passed an order forbearing the third Member (Technical) from participating in the proceedings in the appeal in question any further and also directed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 16th January and 20th February 1950 several issues concerning the jurisdiction of the IT were dealt with. These arose also in the context of Mr. Aiyer resuming as member of the IT after 20th February 1950 and thereafter sitting with both Mr. Sen and Mr. Mazumdar. 25. It was in this background that the question arose whether in the absence of Mr. Aiyer, the two other members had no jurisdiction to hear anything at all without an appropriate notification being issued. Since Mr. Aiyer s services had ceased to be available on 27th October 1949 he could not resume sitting as a Member of the IT with the other two members in the absence of a notification under Section 7 of the ID Act. 26. In The United Commercial Bank Ltd. v. Workmen (supra) the Constitution Bench of the Supreme Court analysed the relevant provisions and noticed a distinction between Section 7 of the ID Act which talked of appointments of two or more members of the IT and Section 8(1) of the ID Act which talked of vacancy in the membership of the Board or IT. It was held that under Section 5(4) of the ID Act when a member of the Board is absent or there is a vacancy, the Board is permitted to act, notwithstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n AT. 30. Alternatively, if the situation was that there were two members of the AT and only one of them sat as an AT to decide an appeal, it could be argued that the AT was not properly constituted particularly in the absence of a notification under Section 73(9) of the DVAT Act constituting benches of the AT. However as far as the present cases are concerned that would be a hypothetical question because there was no other member of the AT remaining between 1st August 2013 and 20th July 2014. It was only Mr. Anand, Member (Judicial) who remained in the AT. There was no question of a notification being issued under Section 73(9) of the DVAT Act to constitute a bench of the AT. There was no bar to Mr. Anand continuing to function as an AT. The de facto doctrine 31. Even assuming that Mr. Anand lacked jurisdiction to hear the appeals and petitions as the AT, by applying the de facto doctrine it could be held that the decision taken by him as a single Member of the AT would nevertheless get validated on this score. Here the rational appears to be that no litigant should suffer on account of the delays and uncertainties only because a vacancy is created in the AT. The law in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 and 3663/2015 are concerned, since the only issue is the challenge to the jurisdiction of a single Member of the AT, these writ petitions are dismissed. The pending applications in these writ petitions are also disposed of in the above terms. 34. The challenge raised in these writ petitions to the decision of the AT on merits cannot be addressed in these writ petitions. Although learned counsel for the Petitioners urged that the writ petitions may themselves be treated as appeals, the Court is not inclined to do so. It would be open to the Petitioners to file the respective statutory appeals, in accordance with law, to challenge the orders of the AT on merits accompanied by application for condonation of delay, wherever applicable. In considering the question of condonation of delay, the Court concerned will take into account the fact of pendency of the above writ petitions. 35. As far as the Writ Petition (C) No. 7689 of 2014 is concerned, it raises an additional issue of the constitutional validity of Section 5 of the DVAT Act. To consider that issue, Writ Petition (C) No. 7689 of 2014 is set down for hearing on 16th August 2016. 36. As far as the Sales Tax Appeals be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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