Civil Writ Jurisdiction Case No. 16314 of 2015. Case: Commercial Taxes Bar Association Vs The State of Bihar and Ors.. Patna High Court

Case Number:Civil Writ Jurisdiction Case No. 16314 of 2015
Party Name:Commercial Taxes Bar Association Vs The State of Bihar and Ors.
Counsel:For Appellant: R.K. Agrawal and Rabindra Prasad, Advocates and For Respondents: Lalit Kishore, PAAG
Judges:Hemant Gupta, Actg. C.J. and Sudhir Singh, J.
Issue:Bihar Value Added Tax Act, 2005 - Sections 17, 3, 9, 9(2), 9(3), 9(3)(c)
Judgement Date:February 10, 2017
Court:Patna High Court
 
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Judgment:

Hemant Gupta, Actg. C.J.

1. The challenge in the present petition is to the notification dated 3rd of September, 2015 (Annexure-5) issued by Commercial Taxes Department by which respondent No. 6 was appointed as Member (Accounts) of Commercial Taxes Tribunal in exercise of the powers conferred under Section 9(3) of the Bihar Value Added Tax Act, 2005 (hereinafter referred to as the Act).

2. The Commercial Taxes Tribunal consist of 3 members. The Chairperson of the Tribunal shall be a retired High Court Judge, not exceeding the age of sixty-five years or a judicial officer of the rank of District Judge under Section 9(2) of the Act. One of the two other members shall be a member of Commercial Taxes Department, not below the rank of Joint Commissioner under Section 9(3). In respect of the third member, the eligibility conditions are as under:-

"(3) One of the other two members shall be an officer of the Commercial Taxes Department of the State Government not below the rank of Joint Commissioner and the third member shall be a person -

(a) who has, for at least ten years, been in the practice of accountancy as a Chartered Accountant under the Chartered Accountant Act, 1949 or as a registered Accountant under any law formerly in force or partly as a registered Accountant and partly as a Chartered Accountant; or

(b) who is or has been an officer of the Indian Audit and Accountant Service not below the rank of Deputy Accountant-General; or

(c) who is a Government servant, whether serving or retired having experience of at least four years in the administration of accounts or financial management in the State Government or Public Sector Undertaking."

3. The controversy is as to whether respondent No. 6 is eligible to be a member of the Commercial Taxes Tribunal as he is said to have no experience in "administration of accounts and financial Management" as contemplated in Section 9(3)(c) of the Act in the category of serving as retired Government servant. The respondent No. 6 on the date of appointment had ceased to be a member of Commercial Taxes Department as he attained superannuation on 31st of August, 2015.

4. In the counter affidavit filed, reference is made to a notice inviting applications for the post of Member (Accounts) in the Commercial Taxes Tribunal, Bihar. It was pointed out that not only respondent No. 6, but 9 other persons also applied for the said post. The Committee, under the Chairmanship of Member, Board of Revenue, with other members interviewed all the short-listed eligible candidates on 15th of July, 2015 and following the procedure prescribed, the respondent No. 6 was appointed as Member (Accounts) of the Commercial Taxes Tribunal, Bihar on 3rd of September, 2015. It is pointed out that taxation is an inseparable part of the Government Finance and, thus, an officer, who has experience in administration of commercial taxes at various levels is eligible as he has the experience in the administration of accounts and financial Management. It is pointed out that there is no bar in Section 9(3) of the Act prohibiting the appointment of a second officer from the Department. It was stated as under:-

"Further, the Act never precludes that the 3rd member should not be appointed as member (Accounts) from the Officers of the Commercial Taxes Department". Had the legislature intended so it would have said so in so many words instead of leaving it open to interpretation and meaning it by inference or implication."

5. In another supplementary counter affidavit, the detailed personal information of respondent No. 6 was appended with the affidavit at Annexure-A. A perusal thereof shows that he was appointed as a member of Bihar Finance Service (Trainee) Hqr, Patna and worked there from 21st March, 1987 to 26th of October, 1987. He later worked at Trainee Hqr, Hajipur Circle, Hajipur, from 30th October, 1987 to 5th of July, 2008. It is thereafter, he has discharged responsibilities in the Department of Commercial Taxes at various levels.

6. The argument of learned counsel for the petitioner is that the second member is also a former member of the Commercial Taxes Department. Therefore, it will not be fair discharge of functioning of the Commercial Taxes Tribunal which is a final adjudicatory authority on the questions of fact under the Act as the Tribunal would have bias towards state revenue. It is contended that since Section 9(3) contemplates appointment of only one officer of the Commercial Taxes Department, therefore, by implication, the appointment of another officer from the Commercial Taxes Department is prohibited. It is argued that if the Statute provides that things have to be done in a particular manner, other manners are excluded. Therefore, the appointment of another member from the...

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