Emami Ltd. vs Registrar, M.P. Commercial Tax and Others

S.K. Seth, J.—This order shall also govern disposal of writ petition No. 3598 of 2010. The only difference between them is the period of assessment otherwise the controversy involved in both of them is identical. For the sake of convenience, facts are noted form W.P. No. 3597 of 2010.

Petitioner is a registered dealer engaged in business of manufacture and sale of Fast Moving Consumer Goods such as Boroplus Antiseptic Cream, Boroplus Prickly Heat Powder, Navratan Oil etc. Petitioner has its sales depot at Indore. For assessment year 1-4-1999-2000 Petitioner''s turnover was assessed to tax under M.P. Vanijyik Kar Adhiniyam, 1994 i.e. M.P. Commercial Tax Act (hereinafter called as "the Act").

The A.0. rejected the contention of Petitioner that some of the products, such as Boroplus Antiseptic Cream, Boroplus Prickly Heat Powder, Navratan Oil, Gold Turmeric Cream and Nirog Dant Manjan were taxable @ 8% being Ayurvedic Drug and Medicine under Entry 11 Part IV Schedule II. The A.O. classified these items under Entry No. 41 and 49 of Part III Schedule II and levied tax @ 12%. In two appeals, the Appellate Dy. Commissioner of Commercial Tax maintained the orders of the AO relating assessment year 1999-2000 and 2000-2001.

Petitioner preferred two second appeals before the MP Commercial Tax Appellate Board, Bhopal. Both appeals were clubbed together and final arguments were heard by the Bench of MP Commercial Appellate Board in both appeals as proceeding recorded on 22.12.2007 and the appeals were closed for orders. The order is purported to have been passed on 2.8.2008 but at the behest of the Chairman the Order passed by the Bench on 2.8.2008 is not communicated and the matter was referred to the larger. Bench by the order impugned.

According to learned Counsel for the Petitioner such a course/reference is without jurisdiction. Hence, these two writ petitions.

We have heard learned Counsel for the Petitioner. Considering the seriousness of allegation leveled in the writ petitions, we considered it necessary to summon the original record in sealed envelope through Registrar of the M.P. Commercial Tax Appellate Board, Bhopal. Records were duly produced in sealed condition before us on 8-7-2010. We have carefully and minutely gone through the records.

We refrain from offering any comment on the question of rate of tax since the matter is now pending before the Full-Bench.

The question that falls for our consideration is whether any illegality was committed in referring the matter to the Full Bench?

Order XX of the CPC deals with the judgment and Decree in a civil suit. Rule 1 enjoins upon a Court to pronounce judgment in the open Court either at once or on some future day fixed with due notice to the parties or their pleader. When judgment is not pronounced at once, then efforts shall be made by the Court to pronounce judgment within fifteen days from date of hearing of the case was concluded and where it not practicable to do so, then the judgment shall be pronounced not beyond thirty days from date of hearing of the case was concluded. Similarly, in criminal case, as per Section 353 of the Code of Criminal Procedure, 1973 the presiding officer of the Court shall pronounce the judgment in the open Court immediately after the termination of trial or at some subsequent time of which notice shall be given to the parties or their pleaders. The question when a judgment is delivered/pronounced in the context of Code of Criminal Procedure (1898) came up for consideration of their Lordships in Surendra Singh and Others Vs. The State of Uttar Pradesh, . The judgment of the Court was delivered by Vivian Bose J. In his inimitable style, he explained the meaning of delivery or pronouncement of judgment. According to that decision, delivery of judgment is a solemn act which carries with it serious consequences for the parties or persons involved. It was therefore, necessary to know with certainty exactly when these consequences start to take effect. After noticing decision of the Judicial Committee in AIR 1938 292 (Privy Council) it was held as under:

In our opinion, a judgment is the final decision of the Court intimated to the parties and to the world at large by formal ''pronouncement or ''delivery in open Court." (See paragraph ten at page 196).

The general principles underlying and relating to pronouncement and/or delivery of judgment in civil or criminal case, in our considered opinion, is equally applicable to the passing of an order by the Board or the authority under the Act determining assessment or appeal against levy of tax/penalty. If the order passed under the Act is not delivered with notice to parties or their pleaders and the copy thereof is not communicated, could be said to be an order in the eyes of law. Answer is obviously no because such an order is honest.

A great deal of emphasis was laid during the course of argument on Sub-rule (9) of Rule (4) to contend that the matter could be referred to the larger/ full bench in the event of difference of opinion between two members of the bench hearing an appeal or when any member of the Board deciding any case has difference of opinion about any earlier judgment passed by a single member or by a bench the case shall be referred to the Full bench. It was submitted that in no other eventuality, the matter could be referred to the Full bench.

The record shows that the Bench of two members ex-facie passed the order dated 2.8.2008. No notice of this date was given either to the parties or their pleaders. As per Regulation No. 7(xv), the records of the two appeals were sent to the Registrar of the Board to certify and to issue copies of the order to the parties. Before certifying and issuing the orders purported to have been passed on 2.8.2008, the Registrar in view of the Order of Chairman dated 17.7.2008 and 31.7.2008 brought these two matters to the notice of the Chairman and as per his direction, referred the matter to the Full Bench. The Order dated 17.7.2008 and 31.7.2008 were duly circulated amongst members and were issued by the Chairman after due consultations with all members to reduce the pendency of appeal and tone up system for the quick disposal of appeals within three months from the date of hearing of final arguments otherwise he could transfer the appeal to other bench or full bench in terms of Sub-rule (8) of Rule 4 of the 1995 Rules. There was nothing wrong in the course of action adopted in the facts and circumstances of case as revealed by the records. Thus, we find no force in the submissions of learned Counsel for the Petitioner. As pointed out above, mere passing of an order alone was not sufficient until it was pronounced or delivered in terms of law laid down by their Lordships of the Supreme Court in Surendra Singh''s case supra.

In view of the foregoing discussion, we find no merit and substance in the writ petition, hence it fails. Let a copy of this Order be retained in the record of writ Petition No. 3598 of 2010.