petitioners have assailed the validity of certain other provisions of the Act as well. We would, however, examine the matters after such amendments as the Government may think appropriate are made and the matters are mentioned.
TRANSFER CASE (CIVIL) NO. 116 OF 2006
DECIDED ON 9-1- 2007
1. The challenge in these matters is to the constitutional validity of various provisions of the National Tax Tribunal Act, 2005 (for short, ‘the Act’). Petitions challenging the provisions of the Act have been filed in various High Courts. Since the points in the petitions were identical, writ petitions from the High Courts of Madras, Punjab & Haryana, Bombay and Orissa have been transferred to this Court. Many of the High Courts, entertaining the writ petitions, have also passed interim orders restraining the establishment of the National Tax Tribunal under the Act. The special leave petitions challenging those orders are also before this Court.
2. We have heard the learned Additional Solicitor General for the Union of India and learned counsel for the petitioners for some time. One of the provisions under challenge is section 13 of the Act which, inter alia, permits ‘any person duly authorised’ to appear before the National Tax Tribunal. In the affidavit filed in T.C. No. 150/2006 on behalf of the Union of India, it is, inter alia, stated that the Government would make appropriate amendments in the Act to ensure that only lawyers and chartered accountants and party-in-person are permitted to appear before the Tribunal. We feel it would be appropriate that the matter is further heard after amendments in section 13, as stated in the affidavit, or such other amendment which the Government may want to make in the Act are, in fact, made. We may only note that the petitioners have also challenged section 5(5) of the Act which provides that the Central Government may in consultation with the Chairperson transfer a Member from headquarters of one Bench in one State to the headquarters of another Bench in another State or to the headquarters of any other Bench within a State. The stand of the Union of India is that having regard to the nature of the functions to be performed by the Tribunal and the constitutional scheme of separation of power of which independence of judiciary is a basic part, the expression ‘consultation’ in section 5(5) of the Act may be construed as ‘concurrence’. Further the challenge is also to section 7 which stipulates a Selection Committee comprising of (a) the Chief Justice of India or a Judge of the Supreme Court nominated by him; (b) the Secretary in the Ministry of Law and Justice (Department of Legal Affairs) and (c) the Secretary in the Ministry of Finance (Department of Revenue). According to the petitioners, in this multi-member selection committee, it is possible for the two Members to take a different view than that of the chairperson. According to the Government, however, there is no question of the two secretaries overriding the opinion of the Chief Justice of India or his nominee since primacy of the chairperson is in-built in the provision itself.
3. Likewise, the petitioners have assailed the validity of certain other provisions of the Act as well. We would, however, examine the matters after such amendments as the Government may think appropriate are made and the matters are mentioned.
4. We reserve the liberty to the Government to mention the matter for listing after the amendments in the provisions of the Act are made.