TMI Blog2011 (7) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the observations made hereinabove, preferably within three months from the date a certified copy of this order is filed before it.Trade tax revision is allowed. - Sales/Trade Tax Revision No. 612 of 2002 - - - Dated:- 18-7-2011 - ARUN TANDON J. S.D. Singh for the petitioner B.K. Pandey, Standing Counsel, for the respondent JUDGMENT Heard Shri S. D. Singh, counsel for the revisionist and Shri B. K. Pandey, counsel for the Department. This trade tax revision under section 11 of the U. P. Trade Tax Act is directed against the order of the Trade Tax Tribunal dated October 11, 2001 passed in Second Appeal No. 152 of 2000 insofar as it directs that the applicant shall not be entitled to the benefit of section 4A of the U. P. Trade Tax Act, 1948 (hereinafter referred to as the Act, 1948 ) qua the investment of ₹ 16,74,368 made towards purchase of dyes and moulds, as also in respect of expenditure made towards purchase of hydraulic oil to the tune of ₹ 61,468. Before this court, the relief prayed for in this revision has been confined to the first part of the order of the Tribunal insofar as it refuses benefit of section 4A in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Utpadan Prarambh Karne Ka Dinank Ukt Ke Purva Ka Hone Ke Karan Uprokt Sanshodhan Appelkarta Per Lagu Nahi Hota Hai. Atah Dyes/Mould Per Vinidhan Ke Sambandh Mein Appelkarta Ko Koi Labh Anumanya Kama Sambhav Nahi Hai. Challenging the findings so recorded by the Divisional Level Committee as well as by the Tribunal, counsel for the revisionist submits that it is no doubt true that the words dyes, moulds, zigs and fixtures have been added to Explanation 4 to section 4A vide Amendment Act, 1995 and further that the amendment is prospective in nature, yet the dyes and mould used in the manufacturing process by the revisionist were essential part of the plant and machinery for carrying on his manufacturing activity in the goods referred to above. Therefore, the investment did answer the description of plant and machinery under Explanation 4 to section 4A as it stood prior to its amendment. Both Divisional Level Committee as well as Tribunal failed to appreciate the aforesaid aspect of the matter and refused the benefit of investment only on the ground that the words dyes, moulds, zigs and fixtures have been subsequently introduced to Explanation 4 to section 4A vide Amendment Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the Tribunal. The legal position in that regard stands clarified with the adding of the words dyes, moulds, zigs and fixtures to section 4 by the Amendment Act, 1995. He, therefore, submits that no interference be made against the order of the Tribunal. I have heard learned counsel for the parties and have gone through the records of the present writ petition. It is an admitted position that on the date fixed capital assets was to be computed qua the revisionist, the relevant Explanation 4 to section 4A reads as follows:- (4) 'Fixed capital investment' means investment in land and building and such plant, machinery, equipment, apparatus and components as have not been used or acquired for use in any other factory or workshop in India. Clause (b) of the proviso to Explanation 4 in turn provided as follows:- (b) for the purposes of determining investment in plant, machinery, equipment, apparatus and components and machinery as is necessary for the establishment or running of the factory or workshop; It is further not in dispute that by Amendment Act, 1995, the change introduced in Explanation 4 relevant for our purposes reads as follows:- for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction of previous legislation cannot alter that previous legislation ; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier Act. It may also be noticed that the apex court in the case of Scientific Engineering House (P) Ltd. [1986] 157 ITR 86 (SC) ; [1986] 1 SCC 11, in paragraph 11, considered the meaning to be attached to the expression plant and after referring to the various judgments on the subject, it proceeded to hold that whether a particular thing answers the description of plant or not, functional test is essential and necessary. The apex court in last part of paragraph 12 held as follows (page 96 in 157 ITR):- In other words, the test would be: Does the article fulfil the function of a plant in the assessee's trading activity? Is it a tool of his trade with which he carries on his business? If the answer is in the affirmative, it will be a plant. Counsel for the revisionist elaborating on the issue submitted before this court that there may be dyes and moulds which may not be said to be an integral and essential part of plant and machinery use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the case of Pappu Sweets and Biscuits [1998] 111 STC 425 (SC) ; [1998] UPTC 1086 has explained that the object of the notification and the context in which that words are used in the notification have to be examined. The Tribunal has failed to do so. At this stage the court may refer to the judgments relied upon by the counsel for the Department. There can be no two opinions about the definitions as contained in Explanation 4 to section 4A being inclusive and exhaustive because of the use of the word means as has been explained by the apex court in the case of Commissioner of Trade Tax, U. P. v. Kajaria Ceramics Ltd. reported in [2005] 141 STC 406 (SC) ; [2005] 5 RC 204 ; [2006] UPTC 85. Similarly, there cannot be any quarrel with the proposition that it is within the domain of the State Government to provide exemption to such extent and in respect of such items as it may so desire. The legal position in that regard has also been well-settled by the apex court. (Reference : State of U. P. v. Mahindra and Mahindra Ltd. [2011] 42 VST 365 (SC) ; [2011] 5 JT 448 (SC)). Yet the factual aspect of the matter as noticed hereinabove had to be examined by the Tribunal in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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