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TMI Blog2024 (1) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... iance of the mandatory provisions laid down under Rule 63(5) of the U.P. V.A.T. Rules, 2008 read with Section 57(8) of the U.P. V.A.T. Act, 2008. (5) the principle of best judgement assessment can be resorted to on the basis of presumption and surmises, without any material on record." 4. The Court heard learned counsel for the revisionist on the first substantial question of law which is: "(1) Whether, the judgement & order dated 19.3.2018 passed by learned Commercial Tax Tribunal in Second Appeal No. 68 of 2017 (2011-12) is vitiated due to non-compliance of the mandatory provisions laid down under Rule 63(5) of the U.P. V.A.T. Rules, 2008 read with Section 57(8) of the U.P. V.A.T. Act, 2008." 5. Learned counsel for the revisionist contends that Section 57(8) of the U.P. V.A.T. Act, 2008 (hereinafter referred to as the Act 2008) provides that the Tribunal may, if it has not already dismissed the appeal under Section 57(7) of the Act 2008, after calling for and examining relevant records and after giving the parties reasonable opportunities of being heard or as the case may be after following the procedures prescribed under Section 57(5) (a) confirm the order, (b) set aside t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from amongst- (a) the persons who are qualified to be the judge of the High Court; (b) the persons belonging to the Uttar Pradesh Trade Tax Services or the Uttar Pradesh Commercial Tax Services who hold or have held a post not below the rank of Joint Commissioner. Provided that- (i) where the Tribunal consists of one or more persons who is or are member or members of the U.P. Higher Judicial Service, then he or senior most amongst them shall be appointed as the President; (ii) no person shall be appointed from amongst the advocate unless (A) he has paid Income Tax on his income from his legal profession in each of ten consecutive years preceding such appointment; (B) he has attained the age of fifty years on the date of appointment; (C) such Members from amongst Advocates shall be appointed for a term of three years from the date of appointment or till he attains the age of 60 years whichever is earlier. (2) The State Government may prescribe such other qualification or conditions for the appointment of the President and the other members of the Tribunal as it may deem fit. (3) The provisions of Rule 56 of the U.P. Fundamental Rules shall continue to apply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other money as may have been realized in excess of the due amount to be refunded according to the provisions of this Act. (9) Where an appeal under this section has been filed, the Tribunal may, on the application of the appellant moved along with the memorandum of such appeal after giving the parties a reasonable opportunity of being heard, stay the operation of the order appealed against or the recovery of the disputed amount of any tax, fee or penalty payable, or refund of the amount due, or proceeding for re-assessment under the order appealed against till the disposal of the appeal: Provided that- (i) where appellate authority under section 55 has set aside an order of assessment or penalty and has remanded the case to the assessing authority, for decision afresh, and the appellant under this section is a person other than the Commissioner or the State Government, for the purpose of this section, disputed amount of tax or penalty shall be deemed to be the same which had been before appellate authority under section 55; and (ii) subject to the provision under sub clause (i) where order appealed against does not involve any dispute about quantum of tax, fee or penalty, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a decision given under section 59], shall be filed before the President and shall be heard and disposed of by a bench of three members. (e) The President may, if he so thinks fit,- (i) direct an appeal to be heard and decided by a larger bench; (ii) transfer an appeal from one bench to another bench. (f) In a case before a bench consisting of two or more members any order other than an order finally disposing of the case may be passed by any one of the members constituting the bench: Provided that an appeal against an order passed on an application for stay, may be disposed of finally by a single member bench. (13) All appeals arising out of the same cause of action in respect of an assessment year shall, as for as possible, be heard and decided together: Provided that where anyone or more of such appeals have been heard and decided earlier, if the bench hearing the remaining appeals considers that such decision may be a legal impediment in giving relief in such remaining appeals, it may, if the earlier decision was given- (a) by a smaller bench or a bench of equal strength, recall such earlier decision and proceed to decide all the appeals together; (b) by a la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py shall be given to the parties concerned on application and on furnishing copying folio of the value of twenty rupees. (8) Any applicant or opposite-party shall be entitled to have his case argued before the appellate authority or the Tribunal by a lawyer or an accountant or a State Representative, as the case may be. (9) The provisions of Rule 72 shall, mutis mutandis apply to service of notice, summons, order, etc. under this rule: Provided that the service, on the State Representative, shall be deemed to be the service on the Commissioner." 16. For the sake of convenience, the provisions of Order 41 Rule 31 Code of Civil Procedure are reproduced below: "31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." 17. From perusal of Section 57 of the Act, 2008 it emerges that the same pert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date and signature of judgment. The judgment of the Appellate Court shall be in writing and shall state - (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellants is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." 7. The provisions of Order 41, Rule 31 of the Code of Civil Procedure are mandatory. The first appellate Court while delivering the judgment is required to set out the points for determination, record the decision thereof and give its own reasons for the said decision. Looking at the plain language of the section, it is clear that failure to comply with this provision would not be a mere irregularity but would render the judgment nugatory. The first appellate Court being the last fact finding Court cannot run away from its onerous duties of recording the finding of fact and discussing the evidence and recording the findings of fact. In 1979 AWC 687 : (1979 All LJ (NOC) 110), Smt. Damyanti Devi v. Brindaban it was held- "Where the judgment of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... context of the law laid down by this Court in the case of Ved Ram (supra) vis a vis the provisions of Section 57(8) and Section 57(5) of the Act, 2008 read with Rule 63(5) of the Rules, 2008 it clearly emerges that learned Tribunal has patently erred in neither noting the points for determination nor giving the reason for such decision thereon. Even though certain reasons are indicated in the impugned judgement, as emerge from a perusal of the said judgement, yet without determining the points for determination and the reasons for such decision thereon, it cannot be said that the judgement of learned Tribunal complies with the provisions of Rule 63(5) of the Rules, 2008. 27. Keeping in view the aforesaid discussion, the revision is allowed. The order impugned dated 19.03.2008, a copy of which is annexure 1 to the revision, is set aside so far as it pertains to Second Appeal No. 68 of 2017 in re: Sarvshri Sarvshri Rajansh Marble House vs Commissioner of Commercial Tax, Lucknow. 28. The matter is remitted to learned Commercial Tax Tribunal, Lucknow, U.P. to pass a fresh decision in accordance with law complying with the provisions of Section 57 of the Act, 2008 and Rule 63 of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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