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TMI Blog2017 (12) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the learned President - In his order recorded in the roznama, the learned President has stated that both the parties have been informed that the Appeal cannot be referred to a Bench consisting of three members. After the Bench of three members had fully heard the Appeal, only the said Bench could have come to the conclusion that the reference made to the said Bench of three members was unwarranted. Even in the report submitted by the learned President, he has not stated that even the other two members constituting the Bench of three members passed a similar order. The roznama shows that on 5th December, 2016, the Appeal was placed only before the learned President and the Roznama order was signed only by the learned President. Thus, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned President could have alone disposed of the Appeal on merits? 3. It is the aforesaid question which goes to the root of the matter. For deciding the said question, a brief reference to the facts of the case will be necessary. An Appeal preferred by the present appellant was placed before a Bench of two learned members of the Maharashtra Sales Tax Tribunal at Mumbai. The judgment was pronounced on 4th June, 2015. The said judgment shows that there was a difference of opinion between the two members of the Bench as regards giving prospective effect to the order of determination dated 28th March, 2014 passed under Section 56 of the Maharashtra Value Added Tax Act, 2002 (for short the said Act of 2002 ). Therefore, the Bench pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, a report is received. The report records that the roznama order of 5th December, 2016 signed by him is not correctly reproduced in paragraph 5 of the Memorandum of Appeal. Learned President states that the word not appearing in the original roznama order between the words there is and disagreement does not appear in paragraph 5 of the Memorandum of Appeal. 6. Apart from merits of the Appeal, the learned Counsel appearing for the appellant invited our attention to subsection (6) of Section 11 of the said Act of 2002 read with Regulation no. 28 of the said Regulations. Her submission is that after the Bench of three members had fully heard the Appeal, the same could have been decided only by the said Bench and not by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed where members a Bench of the said Tribunal are equally divided. The said Regulation is crystal clear. When it is reported to the learned President that members of Bench are equally divided, if he is not one of the members of the Bench, he may himself hear the issue on which there is a disagreement. If he is of the opinion that the case involves a substantial point of law, it is open for him to refer the question for hearing to one or more than one member of the Tribunal, including himself when he is not a member of the original Bench. Thus, there are two options open to the learned President when two members constituting a Bench differ. One of the two opinions is that, if according to him, the difference of opinion is on a substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed only by one of the three members forming a part of the Bench of three members. Moreover, the parties were not heard on the question whether the reference to a larger Bench was unwarranted. It is for this reason that the order dated 5th December, 2016 passed by the learned President is completely illegal. 10. It is also necessary to add here that even assuming that the said order was legal, the propriety required that the learned President ought to have fixed the Appeal for fresh hearing before him as the hearing conducted earlier was before a Bench of three members. 11. Hence the order dated 5th December, 2016 will have to be held as completely illegal and consequently the judgment and order dated 7th December, 2016 delivered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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