In exercise of the powers conferred by section 63 of the Himachal Pradesh Value Added Tax Act, 2005 (Act No. 12 of 2005), the Governor of Himachal Pradesh is pleased to make the following rules further to amend the Himachal Pradesh Value Added Tax Rules, 2005 which were published in the Rajpatra, Himachal Pradesh (Extra-ordinary) dated 7-12-2005 vide this department Notification No. EXNF (5)-4/2005 dated 2-12-2005, namely:-
Amendments
1. Short Title.-
(1) These rules may be called the Himachal Pradesh Value Added Tax (1st Amendment) Rules, 2008.
(2) They shall come into force from the date of their publication in the Rajpatra Himachal Pradesh.
2. Insertion of rules 77-A, 77-B, 77-C, 77-D, 77-E and 77-F.-
In chapterXI "APPEAL" AND REVISION" of the Himachal Pradesh Value Added Tax rules, 2005, after existing rule 77, the following new rules 77-A, 77-B, 77-C, 77-D, 77-E and 77-F shall be inserted, namely:-
"77-A. Qualifications and other terms of office etc. of the Chairperson.-
(1) A person shall be qualified for appointment as the Chairperson of the Appellate Tribunal to be called the 'Himachal Pradesh Tax Tribunal' (hereinafter referred to as 'the Tribunal') if he has been a Judge of a High Court or he is eligible to be judge of High Court, (an Advocate with a minimum practice of ten years in a High Court or the Supreme Court of India) or he is or has been a commissioner-cum-Secretary to the Government of Himachal Pradesh or he is a Chartered Accountant with a minimum practice of fifteen years in a Tax Tribunal.
(2) The Chairperson, shall on appointment be required to take the oaths of allegiance to the Constitution of India, office and secrecy in the following forms, namely:-
FORM OF OATH OF ALLEGIANCE
I __________do_______ solemnly affirm that I will be faithful and bear true allegiance to India and to the Constitution of India as by Law established and that I will loyally carry out the duties of my office.
I________________ appointed as a Chairperson of the Himachal Pradesh Tax Tribunal do solemnly declare that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment.
FORM OF OATH OF SECRECY
I____________do____ solemnly affirm that I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as Chairperson of the Himachal Pradesh Tax Tribunal except as may be required for the discharge of my duties as Chairperson.
3. The Chairperson of the Tribunal shall not be removed from his office except on the ground of proved misbehavior or incapacity on account of unsoundness of mind or otherwise after an inquiry made in which such Chairperson had been informed of the charges against him and given a reasonable opportunity of being heard in respect of the charges.
4. The Chairperson of the Tribunal may, at any time, in writing under his hand addressed to the State Government resign his office and such resignation shall take effect from the date of its acceptance.
5. A vacancy occurring in the office of the Chairperson of a Tribunal shall be filled in by the State Government in accordance with the provisions of the Act and these rules.
6. The Tribunal shall sit at such place or places within its jurisdiction as it may deem fit.
77-B. Salary and Allowances of the Chairperson of the Tribunal.-
(1) The salaries and allowances of the Chairperson of the Tribunal, shall be as follows:-
(a) if, he is a retired judge of the High Court or a retired member of the Indian Administrative Service, he shall get the last pay drawn by him at the time of retirement, less the amount of gross monthly pension, but his pay plus gross monthly pension, shall not exceed the last pay drawn by him at the time of retirement.
Provided that the Chairperson shall, in addition to the last pay drawn, be entitled to such allowances as are from time-to-time sanctioned by the State Government to the highest grade of Group 'A' officers of the State Government:
Provided that the salaries and allowances in case of the Chairman being an Advocate or Chartered Accountant, shall be equal to the scale of pay and allowances as are entitled to officers of the level of the Commissioner-cum-Secretary to the State Government; and
(b) if, he is a serving member of the Indian Administrative Service, he shall get such salaries and allowances, as he would have drawn, had he not been appointed the Chairperson of a Tribunal:
Provided that if the person appointed as Chairperson of a Tribunal retires during this tenure as such, his salaries and allowances immediately after the date of retirement, shall be such, as are provided in part (a) of this sub-rule.
Explanation.-The words "gross monthly pension" as used in this rule, shall mean the aggregate pension without commutation.
(2) The Chairperson, of the Tribunal, shall be entitled to-
(a) Travelling allowance for journeys performed in connection with the official duties at the rates as are admissible to the highest grade among Group 'A' of the State Government.
(b) such medical facilities as are admissible to the highest grade among Group 'A' Officers of the State government; and
(c) such kind of leave, including casual leave and leave salary as admissible to the Group 'A' officer of the State Government.
77-C. Expenditure etc.-
The expenditure of the Tribunal including all salaries, allowances and pensions, payable to or in respect of the Chairperson and the officers or officials of the Tribunal shall be charged upon the Consolidated Fund of the State.
77-D. Provident Fund.-
The Chairperson shall be entitled to elect to subscribe to the General Provident Fund in accordance with the General Provident Fund (Central Services) Rules, 1960, as amended from time to time and orders issued thereunder. If he so elects, he shall be entitled to carry forward the balance in his Provident Fund Account to the New Provident Fund Account.
77-E. Other Conditions of Service.-
The conditions of service of the Chairperson for which no express provisions have been made in these rules, shall be the same as are applicable to the Commissionercum- Secretary to the State Government.
77-F. Procedure to be followed and the seal of the Tribunal.-
(1) The Tribunal shall observe the same office hours and holidays as are observed by the State Government.
(2) An appeal or application for revision shall be registered by endorsing on it the date of its receipt and shall thereafter be caused to be entered in a register to be kept for the purpose.
(3) As soon as may be after the registration of the appeal or application for revision, a notice shall be sent to the appellant and the respondent or applicant or their agents appointed for the purpose intimating the date which the Tribunal may fix for the hearing of the appeal or application for revision. A copy of the memorandum of appeal shall also be furnished to respondents. the Tribunal shall call for the record of the case from the concerned authority.
(4) The service of notice shall be made as per the procedure laid down in Rule 84.
(5) When an appeal or application for revision has been dismissed in default or disposed of exparte, the appellant or the applicant may apply to the Tribunal for re-admission of the appeal or the application duly supported by an affidavit; and where it is shown to the satisfaction of the Tribunal that he was prevented by sufficient cause from appearing when the appeal or the application was called for hearing the Tribunal shall re-admit the appeal or the application and may order the payment of such cost not exceeding one thousand rupees as the Tribunal may direct.
(6) An application for re-admission of an appeal or application dismissed in default or disposed of exparte shall be made within thirty days from the date of communication of such order:
Provided that the Tribunal may entertain the application after expiry of the period of thirty days if it is satisfied that the petitioner was prevented by sufficient cause from filing the application in time.
(7) On the date fixed for hearing or on any other date to which the hearing may be adjourned, the appellant or applicant or his agent shall ordinarily be heard first in support of his appeal. The respondent or his agent shall, if necessary, be heard next and in such cases the respondent shall be entitled to file reply to the appeal or the application.
(8) The appellant or the applicant shall not be entitled to produce additional evidence whether oral or documentary before the Tribunal, but if-
(a) the authority from whose order the appeal is preferred has refused to admit evidence which ought to have been admitted; or
(b) the appellant or the respondent in appeal seeking to adduce additional evidence satisfies the Tribunal that such evidence notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at or before the time when the order under appeal was passed; or
(c) the Tribunal required any documents to be produced or any witness to be examined to enable it to pass order in appeal the Tribunal may allow such evidence or document to be produced or witness to be examined:
Provided that the other party shall, in such cases, be entitled to producer rebutting evidence, if any.
(9) If the Tribunal is of the opinion that any witness should be examined in connection with any case before it, it may either examine such witness itself or issue a commission to any Officer of the Excise and Taxation Department for examining the witness in the presence of the other side who will have the right of cross examination.
(10) The Tribunal may on such terms as it thinks fit, and at any stage, adjourn the hearing of any appeal.
(11) If an appellant or applicant dies while the appeal or application for revision is pending and it cannot be proceeded with unless his legal representative is brought on record, the Tribunal shall adjourn further proceedings to enable his legal representative to appear and apply for being made a party. If the legal representative fails to do so within ninety days from the date on which the appellant dies, the appeal or the application for revision shall abate as regards the deceased.
(12) Notwithstanding anything contained in sub-rule 11 thereshall be no abatement by reason of the death of any party or respondent between the conclusion of the hearing and passing of the order, but the order may, in such a case, be passed notwithstanding the death and shall have the same force and effect as if it had been passed before the death took place.
(13) If a question arises in any appeal or application for revision whether a person is or is not the legal representative of a deceased appellant or respondent such question may be determined by the Tribunal in a summary way, if necessary, after taking evidence.
(14) If during the pendency of an appeal or application for revision before the Tribunal, the business of any dealer who is a party is assigned to, or devolves upon some other person either wholly or in part, the Tribunal may, on an application of such assignee or such person on whom the business devolves, add such person as party to the appeal.
(15) If a dealer, who is party to an appeal, becomes insolvent and his estate becomes vested in the assignee or Receiver, the latter, may, by leave of the Tribunal be made a party to the appeal or the application for revision.
(16) Whenever an order of abatement or dismissal has been passed in a case where the appellant or the applicant had died, his legal representative(s), in a case where the appellant/ applicant has died, the appellant or the applicant and in a case where the appellant or the applicant becomes insolvent and his estate becomes vested in the assignee or Receiver such assignee or Receiver may, within sixty days from the date of communication of such order apply to the Tribunal for setting aside the abatement or dismissal and the Tribunal shall, on sufficient cause being shown to its satisfaction set aside abatement or dismissal and proceed with the appeal or the application for revision.
(17) the Tribunal shall ordinarily hear and dispose of the appeals and the revisions under the Act ordinarily within six months of their admission and at most within the maximum period of not more than one year.
(18) The procedure prescribed in these rules relating to other matters shall apply mutatis mutandis for the relevant purposes.
(19) The seal of the Tribunal shall be "The Himachal Pradesh Tax Tribunal" with the normal insignia of three lions used by the State Government.
(20) The Tribunal shall submit the returns of institution, disposal and pendency of appeals and revisions as may, from time-to-time, be required by the State Government, in the Department of Excise and Taxation.