57. Tribunal.

(1)     There shall be a Tribunal to be known as Commercial Taxes Tribunal consisting of such members including a President as the State Government may, from time to time, deem it necessary to appoint from amongst-

(a)   the persons who are qualified to be the judge of the High Court;

(b)  the persons belonging to the Uttar Pradesh Trade Tax Services or the Uttar Pradesh Commercial Tax Services who hold or have held a post not below the rank of Joint Commissioner:

Provided that-

(i)   where the Tribunal consists of one or more persons who is or are member or members of the U.P. Higher Judicial Service, then he or senior most amongst them shall be appointed as the President.

(ii)   no person shall be appointed from amongst the advocate unless-

(A)   he has paid Income Tax on his income from his legal profession in each of ten consecutive years preceding such appointment;

(B)   he has attained the age of fifty years on the date of appointment.

(C)   such Members from amongst Advocates shall be appointed for a term of three years from the date of appointment or till he attains the age of 60 years which ever is earlier.

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

(3)     The provisions of rule 56 of the U.P. Fundamental Rules shall continue to apply to every member of the Tribunal including the President whether appointed under the erstwhile Act or under this Act on or after the date of the commencement of this Act, as they apply to any other Government servant.

(4)     Any person aggrieved by an order passed under section 42, section 55, section 56, a decision under section 59 or a direction under the proviso of sub-section (7) of section 48 may, within ninety days from the date of service of the copy of such order, decision or direction on him, prefer an appeal to the Tribunal.

      Provided that where order passed by the appellate authority under section 55 is an order in respect of demand of any security, not being security demanded for release of goods seized under any provisions of this Act, appeal under this section may be filed only after furnishing security, fixed by the appellate authority under section 55.

      Provided further that where the disputed amount of tax, fee or penalty does not exceed two thousand rupees and no question of law is involved, the appellant may, at his option, request the Tribunal in writing for summary disposal of his appeal, whereupon the Tribunal may decide the appeal accordingly.

         Explanation: For the purposes of this sub-section, the expression 'any person' in relation to any order passed by an authority other than the Commissioner includes the Commissioner and, in relation to any order passed by the Commissioner includes the State Government;

(5)     The manner and procedure of summary disposal of appeal shall be such as may be prescribed.

(6)     Section 5 of the Limitation Act, 1963 shall apply to appeals or other applications under this section.

(7)     The Tribunal may at any stage, after giving the appellant a reasonable opportunity of being heard, dismiss the appeal.

(8)    The Tribunal may, if it has not already dismissed the appeal under sub-section (7), after calling for and examining the relevant records, and after giving the parties a reasonable opportunity of being heard or, as the case may be, after following the procedure prescribed under sub-section (5):

(a)  confirm, cancel or vary such order, or

(b)  set aside the order and direct the assessing or appellate or revising authority or the Commissioner as the case may be, to pass a fresh order after such further enquiry, if any, as may be specified , or

(c)  order such amount of tax, fee or penalty or other money as may have been realized in excess of the due amount to be refunded according to the provisions of this Act.

(9)     Where an appeal under this section has been filed, the Tribunal may, on the application of the appellant moved along with the memorandum of such appeal after giving the parties a reasonable opportunity of being heard, stay the operation of the order appealed against or the recovery of the disputed amount of any tax, fee or penalty payable, or refund of the amount due, or proceeding for reassessment under the order appealed against till the disposal of the appeal:

Provided that-

(i)    where appellate authority under section 55 has set aside an order of assessment or penalty and has remanded the case to the assessing authority, for decision afresh, and the appellant under this section is a person other than the Commissioner or the State Government, for the purpose of this section, disputed amount of tax or penalty shall be deemed to be the same which had been before appellate authority under section 55; and

(ii)   subject to the provision under sub clause (i) where order appealed against does not involve any dispute about quantum of tax, fee or penalty, on the application of the appellant the Tribunal may stay the operation of such order till the disposal of appeal subject to such conditions including a condition of furnishing of a security in cash within the time allowed;

Provided further that-

(a)   no application for stay of recovery of any disputed amount of tax, fee or penalty shall be entertained unless the applicant has furnished satisfactory proof of the payment of not less than one third of such disputed amount in addition to the amount required to be deposited under sub-section (3) of section 55.

(b)  the Tribunal may, for special and adequate reasons to be recorded in writing, waive or relax the requirement of clause (a) regarding payment of the one-third of such disputed amount.

(10)   Where the Tribunal passes an order under this section for the stay of recovery of any tax, fee or penalty or for the stay of the operation of any order appealed against and such order of the Tribunal results in the stay of recovery of any tax, fee or penalty, such stay order of the Tribunal shall not remain in force for more than thirty days unless the appellant furnishes adequate security to the satisfaction of the assessing authority concerned for the payment of the outstanding amount.

(11)   The members of the Tribunal shall sit in such benches of one, two or more members, as may be constituted from time to time, and do such work of the Tribunal as may, subject to sub-section (12) and the rules framed under this Act, be allotted to them, by order or in accordance with the directions of the President of Tribunal.

(12) (a) An appeal against the order of appellate authority under section 55 shall be heard and disposed of-

(i)    by a bench of two members, where such order, not being an order passed on the application of the appellant for stay, the amount of tax, fee or penalty in dispute, exceeds two lakh rupees or such amount not exceeding three lakh rupees as may be determined by the State Government from time to time;

(ii)    by a single member bench, in any other case.

(b) an appeal against a direction given under the proviso to sub-section (7) of section 48 shall be heard and disposed of by a bench of two members;

(c) an appeal against an order under section 56 shall be heard and disposed of by a bench of two members.

(d) An appeal against an order passed under section 42 or a decision given under section 59 shall be filed before the President and shall be heard and disposed of by a bench of three members.

(e)  The President may, if he so thinks fit,-

(i)  direct an appeal to be heard and decided by a larger bench;

(ii)  transfer an appeal from one bench to another bench.

(f)   In a case before a bench consisting of two or more members any order other than an order finally disposing of the case may be passed by any one of the members constituting the bench.

      Provided that an appeal against an order passed on an application for stay, may be disposed of finally by a single member bench.

(13)  All appeals arising out of the same cause of action in respect of an assessment year shall, as for as possible, be heard and decided together:

      Provided that where anyone or more of such appeals have been heard and decided earlier, if the bench hearing the remaining appeals considers that such decision may be a legal impediment in giving relief in such remaining appeals, it may, if the earlier decision was given-

(a)  by a smaller bench or a bench of equal strength, recall such earlier decision and proceed to decide all the appeals together;

(b)  by a larger bench, refer such remaining appeals to such larger bench having jurisdiction and thereafter such larger bench may recall such earlier decision and proceed to decide all the appeals together.

(14)  The place of sitting and procedure of, and the manner of presenting appeals and other documents to the Tribunal shall, subject to the rules framed under this Act, be such as the Tribunal may deem fit to adopt.

(15)  The decision, of case heard by a bench, shall be in accordance with opinion of the majority. Where the members are equally divided the President of the Tribunal may,-

(a)  if he was not a member of such bench, give his own opinion or refer the case for the opinion of another member, whereupon the case shall be decided in accordance with such opinions; or

(b)  form a larger bench.