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Judgment
Rajesh Bindal, J
The present petition has been filed by the petitioner challenging the validity of definition of “sale price†as contained in Section 2(1)(zg) of the
Haryana VAT Act, 2003. Further challenge has been made to the clarification issued by the Government of Haryana, Excise and Taxation
Department dated 22.08.2013, which provides that element of service tax will be considered for the purpose of sale price and tax shall be levied on
that. Challenge has also been made to the notice dated 08.08.2014 issued to the petitioner.
The writ petition was entertained noticing the arguments of learned counsel for the petitioner at that time that the Tribunal, where the appeal against
clarification is maintainable, was not functional. However, the fact remains that now the Tribunal is functional but the vacancy created on retirement
of third Member has not been filled up.
Appeal against any clarification issued by the Government in exercise of powers under Section 56(3) of the Haryana VAT Act is to be heard by a
Bench consisting of not less than three Members.
Learned counsel for the State after consulting learned Advocate General submitted that vacancy created on retirement of third Member shall be filled
up within two months.
It is not in dispute that the petitioner has remedy of appeal against the clarification issued by the Government, hence, we relegate the petitioner to avail
its remedy of appeal before the Tribunal. As the writ petition remained pending in this Court, we direct that if the appeal is filed within 30 days, the
same shall not be dismissed on account of delay and shall be considered on its merits.
At this stage, learned counsel appearing for the petitioner submitted that during the pendency of the writ petition before this Court, further proceedings
in pursuance to notice issued were stayed. He prays that till such time application for interim relief is decided by the Tribunal in the appeal and the said
application to be filed by the petitioner, interim stay already granted by this Court be continued, as the State is yet to appoint third Member of the
Tribunal.
We find the prayer to be reasonable. Admittedly there is vacancy of third Member in the Tribunal and appeal can be heard only by a Bench of
minimum three Members. Third Member is to be appointed within two months as stated by learned counsel for the State. We direct that till such time
the application for interim relief filed by the petitioner along with the appeal is decided by the Tribunal, interim stay already granted by this Court shall
continue. It is subject to the condition that appeal and stay application is filed by the petitioner within 30 days.
It is made clear that we have not examined the validity of Section 2(1)(zg) of the Haryana VAT Act. The petitioner shall be at liberty to challenge the
same later, if necessary.
The writ petition stands disposed of accordingly.