In a recent ruling, the division bench of the Patna High Court confirmed the validity of the appointment of a retired official of Commercial Taxes Department as Member (Accounts) of Commercial Taxes Tribunal under Section 9(3) of Bihar Value Added Tax Act, 2005. While dismissing a petition filed by the Commercial Taxes Bar Association, the bench observed that the fact that the officer was working with the Commercial Taxes Department, cannot be a reasonable suspicion to disqualify him for appointment.
The petitioner, Commercial Taxes Bar Association approached the High Court challenging the appointment of a VAT Officer as the member of the Appellate Tribunal. The officer, along with other 9 candidates, applied for the post and was appointed by the Committee. It was 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 and the same does not violate s. 9(3) of the Act.
The petitioners contended that the newly appointed member, being a former member of the Commercial Taxes Department, there 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 was further contended that Section 9(3) contemplates appointment of only one officer of the Commercial Taxes Department and therefore, by implication, the appointment of another officer from the Commercial Taxes Department is prohibited.
The division bench comprising of Acting Chief Justice Hemant Gupta and Justice Sudhir Singh noted that the present case is not a case of pecuniary bias and a mere fact the officer was working with the Commercial Taxes Department, cannot be a reasonable suspicion to disqualify him for appointment. “He has no interest, either pecuniary or otherwise, which may afford strongest proof against his neutrality. Therefore, mere fact that he was serving the State Government, he will have a natural bias towards the State is too wide a proposition to be accepted. In view of the development of law as to when non- pecuniary bias will vitiate an action, though he will have a natural bias towards the State is not justified.”
“The expressions “administration of Accounts” or “financial Management” are not defined under the Act. Therefore, such expressions have to be given ordinary meaning to such words. The argument that Clause (c) has to be read ejusdem generis to Clause (a) and (b) of Section 3 to contend that the member has to be qualified Chartered Accountant or having fair knowledge of accounts is not a legitimate inference. Though the one post is popularly called as the Member (Accounts), the experience of a candidate of working in Commercial Taxes Department would be helpful in discharge of the appeals by the Tribunals in the matter of Commercial Taxes. The experience which he has gained while working in the Commercial Taxes Department is in the field of Applied Accounts, therefore, it cannot be said that he does not have experience in administration of accounts. The assessment undertaken by the candidates gives him insight of the financial management given by the assessees. Therefore, it cannot be said that respondent No.6, appointed as Member (Accounts) is ineligible for appointment as a member in view of the fact that he has no experience of administration of accounts or financial management. Still further, only one candidate is a Chartered Accountant whereas another candidate is a Commerce and Law Graduate and has done M.B.M. in Finance. The three candidates are the members of Bihar Finance Service and have Patna High Court CWJC No.16314 of 2015 dt. 10-02-2017 worked in the Commercial Taxes Department. Therefore, the State had to choose out of the limited choice available. Thus, respondent No.6 cannot be said to be wholly ineligible candidate and a wrong choice to discharge the duties as Member (Accounts).”
Read the full text of the Judgment below.
