While entertaining a petition moved by the Sales Tax Tribunal Bar Association, a division bench of the Bombay High Court held that only legally qualified, judicially trained and experienced persons can be appointed Members of the sales tax Appellate Tribunals.
A bench of Justices A.S.Oka And Riyaz I. Chagla further clarified that a Chartered Accountant or Commissioner cannot be appointed unless they have expertise in the subject.
In the petition, the petitioners challenged the constitutional validity of Section 11 of the VAT Act and Rule 6 of the VAT Rules. They also challenged the amendment to the Government Resolution dated 2nd June 1973 issued by the Finance Department, Government of Maharashtra wherein it was provided that retired Deputy Commissioner of Sales Tax should not be considered for appointment on the Tribunal. It provides that the selection of the Members of the Tribunal should be entrusted to a High Power Selection Board with the Chief Secretary as Chairman and the Secretary of Law and Judiciary Department and the Secretary of Finance Department as its members.
After hearing the rival contentions, the bench laid down the following directions.
(i) No Member covered by clauses (a), (b) or (c) of subrule (1) of Rule 6 of the VAT Rules shall be appointed without making effective consultation with the High Court of Judicature at Bombay. The bench further said that the in such matters, the rule laid down in the case of State of Gujarat Vs. Gujarat Revenue Tribunal Bar Association shall be followed.
(ii) In view of the statements made in the aforesaid affidavit, we clarify that a Bench of two or more Members shall always be headed by a Judicial Member appointed under clauses (a), (b) or (c) of sub-rule 1 of Rule 6 of the VAT Rules;
(iii) The matters which are required to be decided by the Members sitting singly shall always be placed before a Judicial Member only. In case of emergency, when none of the Judicial Members are available, the matters where an urgent
Adinterim or interim relief is sought can be placed before the Administrative Member sitting singly;
(iv) As far as selection of the Members covered by clauses (d), (e) and (f) of sub-rule(1) of Rule 1 of Rule 6 is concerned, the State Government shall constitute a proper Selection Committee preferably headed by a retired Judge of this Court, in the light of observations made in this judgment and order;
(v) The Government Resolution dated 2nd June 1973 is hereby quashed and set aside;
(vi) As far as Members appointed under clauses (d), (e) and (f) of sub-rule
(1) of Rule 6 are concerned, the said Members shall be legally qualified. In the case of Members covered by clause (d) of sub-rule (1) of Rule 6, in addition to the aforesaid requirement, the State shall also ensure that the Members shall be judicially trained in the sense that they have long experience of dealing with quasi-judicial proceedings and/or adjudication proceedings;
(vii) We recommended to the State Government to carry out suitable amendment to the Rules incorporating therein the provisions relating to the maximum tenure of the Members and/or age of retirement/superannuation within a period of six months from today;
(viii) At least six months before the date on which vacancy of President or Member is likely to occur, the State Government shall initiate steps for filing in the vacancy so that the posts do not remain vacant. In case of vacancy arising due to any other reason, the State Government shall ensure that the vacancy is filled in as expeditiously as possible and in any event, within a period of four months from the date on which the vacancy occurs;
(ix) The State Government shall constitute a Committee of Experts to look into the question as to how many Members are required for the Tribunal at present and in future. As stated earlier, the Committee will take into consideration the law laid down by the Apex Court in the case of Imtiyaz Ahmad Vs. State of Uttar Pradesh & Ors. (supra). Such Committee shall be appointed within a period of three months from the date on which this judgment is uploaded. The Committee shall submit a report within a period of six months from the date of its constitution;
(x) Within a period of six months from the date on which the report is submitted, the State Government shall take steps for appointing such additional members as may be recommended by the Committee. Needless to add that the necessary infrastructure will be provided to the additional members appointed accordingly;
(xi) As far as issue of infrastructure to be provided to the Tribunal is concerned, all adinterim and interim directions issued earlier shall continue to bind the respondents. Whenever any requisition is submitted by the President/Members of the Tribunal as regards the infrastructure to be provided to them and to the Tribunal, the State Government will be bound by the law laid down by this Court in the case of Mumbai Grahak Panchayat & Anr. (supra);
(xii) The Tribunal shall take immediate steps to ensure that all the orders passed by the Tribunal are immediately uploaded on the dedicated website;
(xiii) The Tribunal shall consider of adopting project of computerization and digitization on the lines of E-Court Phase I and E-Court Phase II deviced by e-Committee of the Hon’ble Supreme Court of India. Needless to add that on requisition made by the President of the Tribunal, necessary assistance will be rendered by the team of the High Court of Judicature at Bombay, Central Project Coordinator. If a requisition is made by the President of Tribunal for creating posts of technical staff, the State Government shall take immediate steps for creating necessary technical posts.
(xiv) We must clarify here that what is held by this Court and what is directed by this Court will not affect the validity of appointment of the Members who are already appointed and who are functioning today;
(xv) Rule is partly made absolute in the above terms;
(xvi) The Writ Petition is disposed of in the above terms.
(xvii) However, the compliance with the directions issued by this Court will have to be monitored by this Court. We therefore, direct that notwithstanding the disposal of this petition, the petition shall be listed under the caption of “Directions” on 18th January 2018. The State Government shall file an affidavit of compliance on 15th January 2018;
(xviii) It will be appropriate if this petition is placed before the same Division Bench or before the Division Bench to which one of us is a party. We, therefore, direct the Prothonotary and Senior Master to seek appropriate directions from the Hon’ble the Chief Justice in this behalf.
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