TMI Blog2003 (9) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... er against the said orders in S.T.A. Nos. 736 to 747 of 2000 before the Tribunal came to be dismissed by the Tribunal by means of its order dated July 31, 2002. 3.. The learned counsel appearing for the petitioner made two submissions. Firstly, he submitted that the liability to pay tax under item 6 of the Sixth Schedule would arise, if an assessee undertakes construction of buildings, bridges, roads, etc., and the work executed by the petitioner being only asphalting of roads, the assessing officer as well as the Joint Commissioner of Commercial Taxes (Appeals) and the Tribunal have seriously erred in law in assessing the petitioner to pay sales tax. Elaborating this submission, he submitted that it is only for execution of the work relating to construction of buildings, bridges, roads, etc., an assessee is made liable to pay the sales tax and not in cases, where the assessee carried out the work which is in the nature of asphalting of the road or repair of the road. He pointed out that applying the principles of ejusdem generis, it has to be held that only those works which are in the nature of civil works which relates to constructions of buildings, bridges, roads, etc., wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner has failed to pay tax in respect of the works executed by him for asphalting of roads, the only conclusion that could be drawn is that the petitioner had deliberately made an attempt to evade tax and as such the assessing officer was fully justified in levying the penalty. He further submitted that when the authorities on consideration of the materials on record had reached the conclusion that the petitioner is liable to pay penalty for non-payment of the sales tax, the said finding is also not liable to be interfered with by this Court on the ground that there is no deliberate violation in payment of tax. 5.. The two questions that would arise for our consideration in these petitions in the light of the rival submissions made by the learned counsel appearing for the parties, are: (1) Whether the finding recorded by the Tribunal that asphalting of the roads by the petitioner would amount to construction of the roads is erroneous in law? (2) Whether the Tribunal was justified in upholding the penalty levied on the petitioner under section 12-B(4) of the Act? Regarding first question: Section 5B of the Act provides that every dealer should pay for each year a tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given the same meaning. The interpretation which we are required to place on item 6 of the Sixth Schedule relates to a taxing statute. It is well-settled that if there be any ambiguity in respect of the right to levy tax, it is not removable by reasonable construction; and the taxing statute has to be strictly construed and the subject not to be taxed without clear words for that purpose. It is also well-accepted that there is no room for any intendment and there is no presumption as to tax and nothing is to be read in, nothing is to be implied. While interpreting the taxing statute, the court has only to look clearly at the language used are some of the wellsettled principles. In the case of Janapada Sabha, Chhindwara v. Central Provinces Syndicate Ltd. reported in AIR 1971 SC 57, the honourable Supreme Court while taking the view that if an Act does not by plain language used therein carry out the object, the court will not be justified in supplying deficiencies in the Act, has at paragraph 7 observed as follows: "As observed by Rowlatt, J., in Cape Brandy Syndicate v. Commissioners of Inland Revenue (1921) 12 Tax Cas 358. 'In a taxing Act one has to look merely at what is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y theory of taxation".'" Again in the case of Orissa State Warehousing Corporation v. Commissioner of Income-tax reported in [1999] 237 ITR 589; AIR 1999 SC 1388 at paragraphs 38 and 40, the honourable Supreme Court has observed as follows: "38. The decision of this Court in Keshavji Ravji and Co. v. Commissioner of Income-tax [1990] 183 ITR 1; AIR 1991 SC 1806; 1991 AIR SCW 1845 also lends concurrence to the views expressed above. This Court observed (para 6) (ITR page 9) 'As long as there is no ambiguity in the statutory language, resort to any interpretative process to unfold the legislative intent becomes impermissible. The supposed intention of the Legislature cannot then be appealed to to whittle down the statutory language which is otherwise unambiguous. If the intendment is not in the words used, it is nowhere else. The need for interpretation arises when the words used in the statute are, on their own terms, ambivalent and do not manifest the intention of the Legislature .. Artificial and unduly latitudinarian rules of construction, which with their general tendency to "give the taxpayer the breaks", are out of place where the legislation has a fiscal omission.' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he element of "construction" is predominant and the works, not involving that element cannot be made liable for payment of tax by giving extended meaning either to the word "construction" so as to include the work relating to repair of roads or asphalting of roads; or the word "like" which is prefixed to the word "construction" intending to represent various other types of work like "repair" and "improvement" which are really not in the nature of construction of a road, bridge or a building. If the intention of the Legislature was to levy tax on all types of civil works including the repairs of buildings, bridges, roads and also asphalting of the roads which is treated as civil works, nothing would have been easier than to include the words "repair or improvement". On the other hand, as noticed by us earlier, item 6 is specific and clear in its language. The language is not an inclusive phrase. If it is to be considered as an inclusive one, the language would have been "all types of civil works" including construction of buildings, bridges, roads, etc. Now, the only other question that remains to be considered is whether the word "etc." which is suffixed after the word "roads" shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h by this Court in exercise of its revisional jurisdiction under section 25 of the Act. While considering the similar entry, the division Bench of the Allahabad High Court, in the case of Anurag Enterprises v. State of U.P. reported in [1996] 101 STC 16 has taken the view that the works of colouring and painting are not the works contract within the meaning of the "works contract". It is useful to refer to the observation made by the Allahabad High Court, which reads as follows: "Whereas the contention of the petitioner is that the works of colouring and painting are not the works contract within the meaning of 'works contract' of type No. 6 or of any other type as specified in a notification dated April 27, 1987, the stand of the respondent is that the contractual activity of the petitioner falls within the works contract of type No. 6 as specified in a notification dated April 27, 1987. The question for consideration is whether the contract of colouring and painting, admittedly carried out by the petitioner, comes within the works contract of type No. 6 as reproduced above. The definition of civil works at serial No. 6 of the notification is illustrative and that is apparent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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