Nidhi Seeds Corporation vs Tribunal, Commercial Tax

U.C. Dhyani, J. (Oral)—Since aforesaid writ petitions carry similar facts and the law governing the field is the same, therefore, they are being decided together by a common judgment and order for the sake of brevity, with the consent of learned counsel for the parties.

Writ Petition No. 1400 (M/S) of 2016, Nidhi Seeds Corporation v. Tribunal, Commercial Tax, Haldwani Bench, Haldwani and others, shall be the leading case.

By means of present writ petition(s), the petitioner(s) seek writ in the nature of mandamus commanding the respondents not to adopt to a coercive measures for recovering the amount of commercial tax as assessed by respondent no. 3, vide its order dated 27.04.2013, for the assessment year 2007-2008, which is subjudice before the Tribunal in Revision (Appeal) no. 21 / 2015. A further prayer has also been made for directing the respondent no. 2 to take a decision on the application filed by the petitioner under Section 53(7) read with Section 53(8) of the Uttarakhand Vat Act, 2005.

Learned Senior Counsel for the petitioner(s) drew attention of this Court towards Annexure no. 7 to the writ petition, which is certified copy of the order sheet of the Commercial Tax Appellate Tribunal, to submit that there is no administrative nember and, therefore, petitioners� appeals cannot be heard, in accordance with law.

It will be appropriate to quote Section 54 of the Uttarakhand VAT Act, 2005 here-in-below. The same reads as under:

"54. Constitution of Appellate Tribunal � (1) The Government shall appoint a Tribunal consisting of a President and such members as it think fit to perform the functions assigned to the Tribunal by or under this Act.

(2) The President and the members shall be appointed from amongst-

(a) the persons belonging to Uttarakhand Higher Judicial Service who hold or have held a post not below the rank of Additional District Judge; and

(b) the persons belonging to the Uttarakhand Trade Tax Service who hold or have held a post not below the rank of Additional Commissioner:

(3) The State Government may prescribe such other qualifications or conditions for the appointment of the President and other members of the Tribunal as it may deem fit.

(4) The appointments to the Tribunal shall be made by the State Government-

(a) in case of persons who have been or are members of the Uttarakhand Higher Judicial Service, in consultation with the High Court; and

(b) in case of persons belonging to the Uttarakhand Trade Tax Service, by selection on the principle of merit from amongst persons who hold or have held the post not below the rank of Additional Commissioner of Trade Tax."

It, therefore, follows that in Commercial Tax Appellate Tribunal, an administrative member is to be appointed, besides a judicial member. The order sheet of the Commercial Tax Appellate Tribunal indicates that administrative member has not been appointed and, therefore, the hearing of the statutory appeals by the Commercial Tax Appellate Tribunal is not possible.

A direction is, therefore, issued to the State Government through Principal Secretary (Finance), Government of Uttarakhand, Dehradun as well as to the Commissioner (Commercial Tax) to initiate the process of appointment of an administrative member of Uttarakhand Commercial Tax Appellate Tribunal at Haldwani, at the earliest possible but not later than four weeks of receipt of certified copy of this order. Registry of the Court is directed to send a copy of this order to the Principal Secretary (Finance), Government of Uttarakhand as well as to the Commissioner (Commercial Tax) forthwith.

In such circumstances, it is provided that for a period of four weeks from today the effect and operation of the impugned recovery citations shall remain stayed.

With the directions as above, the aforesaid writ petitions stands disposed of.

All the interim relief applications filed along with aforesaid writ petitions also stands disposed of.