ARJUN CHAND Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE short question that arises in this case for consideration by this court concerns the validity of the proviso to rule 33(8)(a) of the Bihar Sales Tax Rules, 1983 (hereinafter referred to as 'the Rules'). According to the proviso, under certain circumstance, in the event of dissent, the opinion of the Chairman would override the opinion of the other member, constituting with him, a Division Bench of the Commercial Taxes Tribunal.

(2.) THE facts of the case are brief and can be stated thus; a penalty proceeding in terms of Section 20 of the Bihar Finance Act, 1981 (hereinafter referred to as 'the Act') was initiated against the petitioner -dealer for alleged suppression of sale and purchase of 600 tins of Mustard oil. The penalty proceeding was concluded by order, dated 24.12.1983 passed by the Commercial Taxes Officer who imposed a penalty of Rs. 24,000/ - at the rate of three times of the estimated sales tax amount leviable on the alleged sale of the Mustard oil. Having been unsuccessful in his appeal, the petitioner came to the Commercial Taxes Tribunal, Bihar, Patna in Revision Case No. GY 229/87. The revision was heard by a bench of the tribunal consisting of the Chairman and another member. One of the grounds on which the imposition of penalty was assailed was that the penalty proceeding was vitiated for want of a proper service of notice to the petitioner. The learned Chairman rejected the submission and held that a notice of the proceeding was properly served upon the petitioner. However, the other learned member, constituting the division bench, disagreed with the Chairman and upheld the petitioner's submission that there was no proper service of notice and consequently the orders passed by the authorities below, imposing penalty were unsustainable. It is to be noted that at that time the tribunal did not have the third member and under that circumstance when the records of the case were put before the Chairman he held that the revision application stood dismissed in view of the proviso to clause (a) of sub -rule (8) of rule 33 of the Rules.

(3.) HAVING thus stated the facts we may now turn to the relevent provisions of the Act and the Rules. Section 8 of the Act provides for the constitution of the tribunal. It is as follows : "8. Tribunal. - Subject to such rules as may be prescribed the State Government shall by a notification published in the Official Gazette, constitute a Tribunal consisting of one or more members to exercise all the powers and perform all the functions conferred by or under this part or any other law for the time being in force upon such a Tribunal."