TaxTMI 
TaxTMI 
2024 (1) TMI 1054
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....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) 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 procedure....
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....ncluding a President as the State Government may, from time to time, deem it necessary to appoint 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 th....
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....er and direct the assessing or appellate or revising authority or the Commissioner as the case may be, to pass a fresh order after such further enquiry, if any, as may be specified , or (c) order such amount of tax, fee or penalty or 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....
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.... [(b) An appeal against a direction given under the proviso to sub-section (7) of Section 48 shall be heard and disposed of by a bench of two members; (c) an appeal against an order under Section 56 shall be heard and disposed of by a bench of two members.] (d) An appeal against [an order passed by the Commissioner under section 42 or 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 ....
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..... (5) The judgment in appeal shall be in writing and shall state - (a) the points for determination, (b) the decision thereon, and (c) the reasons for such decision. (6) Cross appeals arising out of the same case, admitted by the Tribunal shall, as far as possible, be heard and decided together. (7) Copy of every order under Section 55 and Section 57 shall be delivered to, or served on the parties concerned free of charge. Copies of such order other than the first copy 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 reprod....
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....peal has to state the points for determination, the decision thereon and the reasons for such decision which, as already indicated above, is akin to Order 41 Rule 31 Code of Civil Procedure. 23. The provisions of Order 41 Rule 31 Code of Civil Procedure have been held to be mandatory in the case of Ved Ram (supra) wherein this Court has held as under: "6. The only point involved in the present appeal is whether substantial compliance has been made by the first appellate Court of Order 41, Rule 31 of the Code of Civil Procedure. Order 41, Rule 31, CPC states as under : "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 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....