JAMNAGRI MITHAI Vs. F.F. COUTINHO

JUDGEMENT

(1.) THESE three petitioners question the order made by the three -members Bench of the Sales Tax Tribunal in the matter of decision of their appeals, being Second Appeals Nos. 189, 394 and 2081 all of the year 1973. There was fourth matter before that Bench being Second Appeal No. 1168 of 1969 with which we are not concerned.

(2.) FOR the purpose of deciding the present petition it is not necessary to eventually refer to the merits of challenge in the matters of assessment of tax, for Mr. Manohar, who argued the matter has restricted the challenge to the making of the order by the three -Member Bench, in these appeals. The only two points raised in this petition are, firstly, the counsel contends, that in view of the provisions of Section 21(5) of the Bombay Sales Tax Act, 1959, referred to hereinafter as the Act, and regulations framed thereunder, being regulation No. 26(1) of the Bombay Sales Tax Tribunal Regulations, 1960, referred to hereinafter as the regulations, and in the light of the provisions of Section 55(6)(a) of the Act, the President of the Tribunal was not competent to constitute such a three -Member Bench. He further contended that admittedly the matter was cognised by the Division Bench consisting of two members and they were bound in law to decide the matter in appeal, for there was no jurisdiction in the two -Member Division Bench to submit the papers to the President for purpose of constituting a larger Bench, even though they differed from the view of another co -ordinate two -Member Bench. The learned Counsel relied heavily on Section 55(6) so as to contend that the power of the appellate authority enacted by that provision indicates that such reference is not possible and it has, in terms of Sub -section (6) of Section 55, to proceed to decide the appeal.

(3.) AS far as the last point is concerned, it is, indeed, difficult to interfere on any such grounds. Because of the statement made in the return, we ourselves sent for the record. In para. No. 8 of the return it is stated that 'it is not correct that the cases were heard at the fag end and finished at that day. The hearing continued on the next day also.' The counsel for the petitioners tried to interpret this statement as meaning that the hearing was continued on September 25, 1975, a day beyond the time prescribed under the notification at Annexure -D. The true facts disclosed by the record are that the entire hearing was concluded on twenty fourth itself. The record does not support any such inference that the three -Member Bench continued any hearing on twentyfifth. On the other hand, what appears to have occurred is that after the counsel withdrew, the hearing was completed on twentyfourth itself. Thus the point of transgressing the limit prescribed by the notification annexure -D is without any substance.