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Jamnagri Mithai Vs. F.F. Coutinho, Member Maharashtra Sales Tax Tribunal - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1576 of 1976
Judge
Reported in(1982)84BOMLR347
AppellantJamnagri Mithai
RespondentF.F. Coutinho, Member Maharashtra Sales Tax Tribunal
Excerpt:
.....21(5), 21(6), 21(7) - bombay sales tax tribunal regulations 1960, regulation 26(1)--whether two-member bench of tribunal competent to make order submitting papers to president of tribunal for constituting larger bench when it differs from view of another co-ordinate two-member bench--scope of sections 55(6), 21(5), 21(6) and 21(7)--words 'and for discharging the other functions of the tribunal' in regulation 26(1)--connotation of--words and phrases--tribunal.;avoidance of conflicting rendering of judgments and achieving uniformity in judicial administration are the twin props by which stable results can be achieved. law and jus-lice should always be in ascertainable state. where uncertainty prevails the very foundation of any system of law tends to become weak and shaky. these being..........reference has to be in the manner provided by this sub-section. this is not a case where the bench hearing the appeal itself is inclined to take a different view from the one taken by another bench of equal authority. we cannot imply in subjection (61 that the bench hearing the appeal is rendered incompetent to make such an order of reference with regard to the matters concluded by other co-ordinate benches of equal authority but is only required to follow the same. if we were to read any such inhibition in sub-section (6), as we indicated above, the result would be that of stultifying the process of development and growth of law itself, for either such a bench being impliedly prohibited to make orders for references to the special benches, will have to follow, as of course, even.....
Judgment:

Masodkar, J.

1. These three petitioners question the order made by the three-members Bench of the Sales Tax Tribunal in the matter of decision of their appeals, being Second Appeals Nos. 189, 394 and 2081 all of the year 1973. There was fourth matter before that Bench being Second Appeal No. 1168 of 1969 with which we are not concerned.

2. For the purpose of deciding the present petition it is not necessary to eventually refer to the merits of challenge in the matters of assessment of tax, for Mr. Manohar, who argued the matter has restricted the challenge to the making of the order by the three-Member Bench, in these appeals. The only two points raised in this petition are, firstly, the counsel contends, that in view of the provisions of Section 21(5) of the Bombay Sales Tax Act, 1959, referred to hereinafter as the Act, and regulations framed thereunder, being regulation No. 26(1) of the Bombay Sales Tax Tribunal Regulations, 1960, referred to hereinafter as the regulations, and in the light of the provisions of Section 55(6)(a) of the Act, the President of the Tribunal was not competent to constitute such a three-Member Bench. He further contended that admittedly the matter was cognised by the Division Bench consisting of two members and they were bound in law to decide the matter in appeal, for there was no jurisdiction in the two-Member Division Bench to submit the papers to the President for purpose of constituting a larger Bench, even though they differed from the view of another co-ordinate two-Member Bench. The learned Counsel relied heavily on Section 55(6) so as to contend that the power of the appellate authority enacted by that provision indicates that such reference is not possible and it has, in terms of Sub-section (6) of Section 55, to proceed to decide the appeal.

3. Secondly, the counsel contends, that while three Member Bench was constituted by the President of the Tribunal by a notification produced at annexure-D, limiting its period of working from September 22 to September 24, 1975 (both days inclusive) the three-Member Bench transgressed the limitation of these days and in fact, if the return is taken into account, it acted in .the matter of disposing of the reference on the day which was not allocated by the said notification. The impunged order, therefore, is ultra vires and lacks the authority of the constituting notification. On this aspect it is further contended that the procedure followed by the three-Member Bench in the matters of hearing of these appeals did not behave the principles of natural justice before that Bench. An objection was raised with regard to the matters of reference and the constitution of the Bench as a preliminary objection and the Bench having heard the said objection had having ever-ruled the preliminary objection, refused to grant time so as to move the High Court in furtherance of that objection to the constitution of the Bench itself. According to the learned Counsel, no time was granted, eventually creating a situation whereunder the counsel withdrew and the Bench proceeded ex-parte to decide the matter referred. This procedure shows unseemly hurry on the part of the Bench and in the submission of the learned Counsel, affects the principle of fairness and we should on this ground set aside the impugned judgment and remit back the matter, if at all the Bench is competent for rehearing of the reference.

4. As far as the last point is concerned, it is, indeed, difficult to interfere on any such grounds. Because of the statement made in the return, we ourselves sent for the record. In para. No. 8 of the return it is stated that 'it is not correct that the cases were heard at the fag end and finished at that day. The hearing continued on the next day also.' The counsel for the petitioners tried to interpret this statement as meaning that the hearing was continued on September 25, 1975, a day beyond the time prescribed under the notification at Annexure-D. The true facts disclosed by the record are that the entire hearing was concluded on twenty fourth itself. The record does not support any such inference that the three-Member Bench continued any hearing on twentyfifth. On the other hand, what appears to have occurred is that after the counsel withdrew, the hearing was completed on twentyfourth itself. Thus the point of transgressing the limit prescribed by the notification annexure-D is without any substance.

5. Now as far as the complaint that no time was given by the Tribunal so as to move the High Court in the matter of preliminary objection, no doubt, on the face of it, such a complaint is entertainable, but the facts indicate that this by itself would not render the impugned order as having been made contrary to the principles of natural justice, or without affording any opportunity of being heard to the present petitioners. In fact the petitioners were the appellants and when their appeals came up for hearing before the Division Bench, the view taken by the other Division Bench necessitated the matters of referring the same to a larger Bench. It does not appear that when the reference order was being made by the two-Member Bench, any objection to such reference was voiced before that Bench. It is only when the three-Member Bench commenced hearing of the reference after the notification at annexure-D, such a preliminary objection was tried to be raised. In the matter of jurisdiction, in that whether a body or a Court possesses a jurisdiction or not can be decided as a preliminary issue, but only because such an issue is raised, it does not necessarily follow that the hearing has to be by two stages, one with regard to the preliminary objection as to the jurisdiction and the other with regard to the merits of the reference. In the context of the reference, it was, indeed, clear to the petitioners that the Bench was constituted for specific purpose and only because a preliminary objection was offered, that did not entitle the petitioners to withdraw their representation, which they did at their own risk. Hardly such a complaint can be entertained, if this be the conduct of the petitioners in the matters of hearing before the Bench. This is a case where opportunity was very well made available, but was not totally and adequately availed of by the petitioners, and such an attitude does not eventually affect the impugned order. That order shows that the petitioners were duly served, they were duly represented and they participated in the hearing and on their own volition withdrew from that hearing. In our view, therefore, these facts, in the context of the reference, disentitle the petitioners from seeking further relief of hearing before some such Tribunal.

6. Now turning to the first point, before we look to the provisions on which reliance is placed, suffice it to observe that the matter in these three appeals came up before the Division Benches and as far as Second Appeal No. 189 of 1973 was concerned, it was heard by the two-Member Bench consisting of Shri D.G. Tatke and Shri V.R. Kulkarni, the Members of the Tribunal. Having considered the earlier decisions rendered by the co-ordinate Benches, the Bench thought the question should be referred to Special Bench for decision. They framed the question to the following effect:

Whether the 'Turnover of Sales' in the Notification issued before and the 'turnover of all sales' in the Notification issued on 18th October 1972 by the Government mean sales only of the sweets and the sweet-meats or of all commodities effected by the dealer during the year under assessment ?

7. The order of the Division Bench produced at annexure-A shows that there was divergence of opinion pertaining with regard to this question and that divergence has been noticed by the Bench while framing this question. It, therefore, follows that the two-Member Bench of the Tribunal noticed the decisions on the question available and purported to frame the question so as to settle the matters by a reference to the special Bench. It is not necessary, as the point is not argued to look into the controversy in this case on the merits of the above question.

8. Now the provisions on which reliance is placed by the learned Counsel do not at all further the submission that the Tribunal must act by Division Bench consisting of two members, or that such a Division Bench consisting of two members, even though faced with a contrary view of law unacceptable by co-ordinate Bench of the equal authority is not entitled to make any reference so as to achieve uniformity in adjudicatory processes. Avoidance of conflicting rendering of judgements and achieving uniformity in judicial administration are the twin props by which stable results can be achieved. Law and justice should always be in ascertainable state. Where uncertainty prevails the very foundation of any system of law tends to become weak and shaky. These being the matters of principles, whether expressly stated or not, are always implied.

9. Section 55(6) of the Act deals with the powers of the appellate authority and indicates what final orders can be made in appeal. Clearly its terms do not exclude other operative applicative principles for which no express terms are necessary. Reference to larger Bench for achieving uniformity in the matters of adjudication need not be enacted. Sub-section (6) of Section 55 which deals with the power with regard to final orders that can be made in appeal need not be interpreted to exclude all other orders of the kind with which we are concerned. Provisions of this sub-section are merely clarificatory and enabling as is clear from Clauses (a), (b) or (c) of Sub-section (6) of Section 55. All these clauses deal with what types of final orders could be made at the final stage of the appeal itself. In the very nature of things once the appellate authority is instituted it comes to possess all these powers to make such orders necessary for exercising its own appeal authority. Seeking to settle the principles of adjudication is one of the species of necessary matters for effective exercise of appeal jurisdiction. One cannot conceive of exercise of such jurisdiction by rendering contradictory judgments. If there be a co-ordinate adjudication available in the body of the decisions and if the concerned appeals Bench were to .tend to take in identical matter an opposite view it should follow so as to obtain uniformity, that making of a reference to the Special Bench so as to avoid conflicting adjudications is the part of the obligation of the authority. Uniformity in the matters of rendering judgments is the corner stone of all judicial systems, and references to larger Bench came to be made so as to further that principle of uniformity. Therefore such a power need not be specified by the Statute constituting appeal authority consisting of more than one member and required to act by its benches or divisions, having co-ordinate powers. It is the part of the authority comes to be conferred by the statute by descriptive words like 'appellate authority'. In that it is possessed of all that power that is necessary to reach to the final conclusion, in the terms indicated by Clauses (a), (b) and (c) of Sub-section (6) of Section 55. In these provisions there is sufficient indication that such power is not affected. In fact there is no prohibition, implied or express, in Sub-section (6) of Section 55 debarring the two-Member Bench of the Tribunal making an order of the kind expressing that a reference was necessary for settling the debated disagreement.

10. The provisions of Section 21(5), of Section 21(6) or Section 21(7) of the Act are not indicative of any such inhibition against making such an order. Sub-section (5) of Section 21 indicated that the functions of the Tribunal could be discharged by any of the members sitting singly, or in Benches of two or more members, as may be determined by the president, and Sub-section (6) shows if the members of a Bench are divided, the decision of such Bench is the decision of the majority and if the members are equally divided, they have to state the point or points on which they differ and the case has to be referred by the President of the Tribunal for hearing on such point or points to one or more of the other members of the Tribunal. Sub-section (6) of Section 21 covers only the specific case when the Bench consisting of members are equally divided and indicates that in case of that contingency, reference has to be in the manner provided by this sub-section. This is not a case where the Bench hearing the appeal itself is inclined to take a different view from the one taken by another Bench of equal authority. We cannot imply in subjection (61 that the Bench hearing the appeal is rendered incompetent to make such an order of reference with regard to the matters concluded by other co-ordinate Benches of equal authority but is only required to follow the same. If we were to read any such inhibition in Sub-section (6), as we indicated above, the result would be that of stultifying the process of development and growth of law itself, for either such a Bench being impliedly prohibited to make orders for references to the Special Benches, will have to follow, as of course, even an erroneous view of the co-ordinate Bench, or disregard of that, render contrary or conflicting orders in the matters of the same provisions or principles. Surely this cannot be the implication of Sub-section (6) of Section 21. If Sub-section (6) does not contain any such inhibition, then the provisions of Sub-section (5) are clearly enabling and as and when occasion arises, the President is empowered to constitute Benches of two or more members. Such a power is advisably conferred on the President and in such matters can be exercised with a view to achieve uniformity in the process of adjudication and avoid contradictory judgments.

11. Regulation No. 26 of the regulations is merely made in furtherance of the powers conferred by Section 21(5) of the Act and that provides that the President shall have the power to constitute Benches, from time to time, consisting of a single member or of two or more members of the Tribunal, including himself, to hear the appeals and applications and for discharging the other functions of the Tribunal. It was suggested that the words of the regulation are limited to the hearing of the appeals and applications and not references. We fail to see the force in this submission. The words 'to hear the appeals and applications' are not the only words, but there are further words 'and for discharging the other functions of the Tribunal.' If a debated issue arises inter se in the co-ordinate jurisdictions of the Benches of the Tribunal, surely the Tribunal is entitled and empowered to settle the same acting by larger Benches by pronouncing authoritatively the correct position of law. There is no scope in any of the provisions on which reliance is placed to read any prohibition against the two-Member Division Bench of the Tribunal to make such an order for placing matters before the President nor against the President to constitute such a special Bench consisting of more than 2 members. On the other hand, the scheme of various provisions shows that such a power does exist and it is not affected.

12. In the result, we hold that in the present petition there is hardly any merit. Rule discharged with costs.


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