TaxTMI 
TaxTMI 
2012 (9) TMI 853
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....gistered dealer, under the Delhi Value Added Tax Act, 2004 and the Central Sales Tax Act, 1956; it had filed its return for the years 1988-89, 1989-90 and 1990-91. Its returns were reassessed and additional demands were made. The writ petitioner impugned that demand, before the Additional Commissioner, who confirmed the reassessment. Aggrieved by that order, the petitioner filed appeals before the Tribunal. The appeals were heard, on merits- though on a preliminary issue- by the Tribunal consisting of Mr. S.K. Kaushal (Chairman) and Mr. D.C. Anand (Judicial member) on various dates, viz. 03.05.2012, 20.06.2012, 31.07.2012, 09.08.2012, 22.08.2012 and 27.08.2012. The Tribunal comprises of three members; however, on the said d six dates of hearing, the third member, Ms. Neeta Bali, was absent, and did not form part of the bench hearing the matter. She was on leave of absence. In this background, on the last date of hearing i.e. 27.8.2012 the appeals were part heard, and were adjourned to 29.08.2012. On that date, i.e. 29.08.2012, the petitioner's appeals were placed before a three member bench consisting of Ms. Nita Bali (Administrative Member) in addition to the original two members ....
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....e matter to 7-9-2012. The same day, the present writ petition was taken up for preliminary hearing. After considering the submissions on behalf of the Petitioner, and also submissions of the standing counsel for the department, the court directed stay of proceedings in the appeals, and also required production of the file. These orders were complied with. The file of the Tribunal, in respect of Appeal Nos. 81-83/ATVAT/11-12 were produced, and taken on record. 5. The Petitioner argues that the procedure adopted by the Tribunal is unsupported in law, and untenable. Counsel urges that there is no provision in the VAT Act, which authorizes the Tribunal to adopt the procedure whereby a member who has not heard a matter, can "join" and participate in the proceedings. Such a procedure, it is submitted, is unreasonable and unfair, since the party which concludes its submissions would have no opportunity to make its submissions to that member, who would be in the dark about its position, and yet, be able to decisively influence the outcome of the matter. It is submitted that the Tribunal has to act judicially, and the procedure adopted in this case, and impugned order passed by the petit....
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....cations and other conditions of service of the member or members constituting the Appellate Tribunal and the period for which such member or members shall hold office, shall be such as may be determined by the Government. (4) Any vacancy in the membership of the Appellate Tribunal shall be filled up by the Government as soon as practicable. (5) Where the number of members of the Appellate Tribunal is more than one and if the members differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, the decision of the Chairperson of the Appellate Tribunal thereon shall be final. (6) Subject to the previous sanction of the Government, the Appellate Tribunal shall, for the purpose of regulating its procedure and disposal of its business, make regulations consistent with the provisions of this Act and the rules made thereunder. (7) The regulations made under sub-section (6) shall be published in the official Gazette. (8) The Appellate Tribunal shall, for the purpose of discharging its functions, have all the powers which are vested in the Commissioner under section 75 of th....
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....sittings en-banc. However, at the same time, Sections 73 (4) contemplates a situation where a vacancy might arise in the membership of the Tribunal. This is not perceived to be an impediment in its functioning or cause such a hiatus as to require a separate provision, to enable the existing members to continue with their functioning. Nor does the statute ordain a minimum quoram for the hearing of appeals. It, therefore, appears that the statute is neutral about the consequences which follow in the event of a member's absence from the Tribunal for a temporary period, as in this case. This aspect is important, because the absence of any prohibition either in the negative form, enjoining members from functioning and hearing appeals during the absence of one of them, or absence of a provision mandating a minimum quoram, implies that the Legislature did not contemplate a logjam, in the Tribunal's functioning. The argument of the revenue about a restrictive class of cases which deals with absence of a member, 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 j....
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....ral Government does not come within this class. With the growth of civilization and the problems of modern life, a large number of administrative Tribunals have come into existence. These Tribunals have the authority of law to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary Courts of Civil Judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to Courts, but are not Courts. When the Constitution speaks of 'Courts' in Article 136, 227, or 228 or in Articls 233 to 237 or in the Lists, it contemplates Courts of Civil Judicature but not Tribunals other than such Courts. This is the reason for using both the expressions in Articles 136 and 227. By "Courts" is meant Courts of Civil Judicature and by "Tribunals", those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one....
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....ling appeals, granting stay or interim orders, issuance of summons, and review of orders, have been prescribed under the Regulations. All these underline that it carries out judicial functions. 12. A fundamental premise on which our legal system rests is that no one can suffer an adverse order unheard, or be subjected to an unfair procedure. Procedural safeguards have, over the years, through precedents and court judgments, been recognized as a bulwark against executive excesses or apathy. These rules apply with equal vigor in the case of Tribunals responsible for dispensing justice within their sphere of activity. The VAT Tribunal is one such. A basic component of fair hearing is that a man likely to be affected by a decision, should be heard by an unbiased or impartial tribunal or authority. The corollary to this - and perhaps equally so, is that the officer, or authority who hears the litigant or individual, should issue the order. This aspect was first stated in G.Nageshwara Rao v APSRTC AIR 1959 SC 308 in the following words: "...This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Persona....