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2016 (6) TMI 1033 - UTTARAKHAND HIGH COURT

2016 (6) TMI 1033 - UTTARAKHAND HIGH COURT - TMI - Benefit of deduction contemplated under Section 80-IC - whether the deduction is available in case of a hotel which does not take steps towards ecological balance? - only reason for denying the benefits is that hotel is a stand-alone hotel and not a parcel of Ecotourism activity project - Held that:- Certainly, the mere procurement of a No Objection from the Pollution Control Board cannot be determinative of a question, whether the hotel fulfill .....

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e question, as to whether the hotel is engaged in Ecotourism. - Therefore, necessarily the order passed by the Tribunal cannot be sustained. The receipt of the subsidy cannot be a hurdle in our taking the view, which we are taking as we are called upon to decide the actual scope of the provision in this appeal. While we do not discount the fact that subsidy may have been given the actual interpretation of the provision is a task, which we cannot abdicate. - The answer to the substantial .....

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han Bhatia, Advocate For the Respondent : Mr. Pulak Raj Mullick, Advocate ORDER K. M. Joseph, C.J. (Oral) These four appeals, under Section 260-A of Indian Income Tax Act, 1961 (hereinafter referred to as the Act) relate to the availability of the benefit of deduction contemplated under Section 80-IC of the Act for hotels which have been set up in the State of Uttarakhand. The order of the tribunal, which is impugned, proceeds on the reasoning that such benefit is available to those hotels which .....

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referred to in sub- section (2), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains, as specified in subsection (3). 2. This section applies to any undertaking or enterprise,- (a) … (b) which has begun or begins to manufacture or produce any article or thing, specified in the Fourteenth Schedule or commences any operation specified in that Schedule, or which manu .....

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we must consider. It reads as follows: 15. Eco-tourism including hotels, resorts, spa, entertainment/amusement parks and ropeways 5. All the respondents/assessees have set up hotels in the District Dehradun. The capital of the State of Uttarakhand is located in Dehradun. Dehradun is a city located within the district of Dehradun. The hotels which are the subject matter of this litigation are mostly located in the city of Dehradun; some of them are located a little far away from the city. The Ass .....

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s covered by the decision of A Bench of Delhi Tribunal in the case of Shir Bidhi Chand Singhal vs. ITO in ITA No.3419(Del)/2009 for assessment year 2006-07, dated 04.11.2010, a copy of which has been placed on record and which is authored by my learned brother. The issue has been decided in favour of the assessee. Therefore, following this decision, it is held that the assessee is entitled to deduction u/s 80-IC of the Act For the sake of ready reference, paragraph nos.5 and 6 of the aforesaid d .....

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sm which include inter-alia hotels. It has been the contention of the assessee that his hotel is approved by the Government. The hotel cannot be approved by the Government without obtaining No Objection from the Pollution Department. There is no material on record to show that Pollution Department of the Government has not given No Objection to the assessee. It if is so, then, it cannot be said that the assessee is running a hotel which is outside the norms prescribed by the Pollution Department .....

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u/s 80-IC, the item no.15 of Part C of the Fourteenth Schedule will be redundant. Therefore, in our opinion, in the absence of definition of eco-tourism the hotel as added into the Item No.15 of Part C is to be construed to be hotel situated in the State of Himachal Pradesh or the State of Uttaranchal having a valid licence on the basis of No Objection from Pollution Department which can be treated to be a hotel eligible for deduction u/s 80-IC as per provisions of section 80-IC. Therefore, we .....

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the tribunal cannot be sustained. It is his contention that the benefit under Section 80-IC (b) would be available to only those hotels where it is associated with Ecotourism. As far as Ecotourism is concerned, in fact, he drew our attention to the guidelines for Ecotourism in and around protected areas issued by Ministry of Environment & Forests, Government of India. He would submit that this was brought out in the year 2006. He would submit, however, that considerable light is shed by the .....

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nd environment while directly benefitting the economic development of local communities. 1.3 Ecotourism, when practiced correctly, is an important economic and educational activity. It has the scope to link to a wider constituency and build conservation support while raising awareness about the worth and fragility of such ecosystems in the public at large. It also promotes the non-consumptive use of wilderness areas, for the benefit of local communities living around, and dependent on these frag .....

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s - Build environmental and cultural awareness and respect - Facilitate the sustainability of ecotourism enterprises and activities - Provides livelihood opportunities to local communities - Use indigenous, locally produced and ecologically sustainable materials for tourism activities. 2.2.3 All ecotourism activities should take place only in delineated ecotourism zones delineated in the ecotourism plan. He would, therefore, submit that the view taken by the tribunal that the matter will stand r .....

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other assessment orders as also the orders of First Appellate Authority, as we explore the various dimensions of the questions, which were called upon to answer. 8. The contrary view is canvassed before us very fervently by learned counsel. In fact, Mr. Pulak Raj Mullick, learned counsel for the respondent/assessee in some of the cases would point out that the Court may not be oblivious to the setting in which Section 80-IC was inserted in the Act. He drew our attention to the Office Memorandum .....

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it to Uttaranchal from 29th to 31st March, 2002, had, inter- alia made an announcement that Tax and Central Excise concessions to attract investments in the industrial sector will be worked out for the Special Category States including Uttaranchal. The industries eligible for such incentives will be environment friendly with potential for local employment generation and use of local resources. 2. … 3. Accordingly, it has been decided to provide the following package of incentives for the .....

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o time by the Central Government are entitled to: (a) 100% (hundred per cent) outright excise duty exemption for a period of 10 years from the date of commencement of commercial production, (b) 100% income tax exemption for initial period of five years and thereafter 30% for companies and 25% for other than companies for a further period of five years for the entire States of Uttaranchal and Himachal Pradesh from the date of commencement of commercial production. (ii) All new industries in the n .....

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;.. …….. Thrust Industries Included in Annexure II of O.M. No.1(10)/2001-NER Dated 7.1.2003 of New Industrial Policy and other concessions for the State of Uttaranchal and Himachal Pradesh. SI. No. Activity 4/6 digit Excise Classification Subclass under NIC classification ITC(HS)classification 4/6 digit 1 2 3 4 5 15. Eco- tourism Hotels, resorts, spa, entertainment/amusement parks and ropeways 55101 9. He would point out that Annexure-2 which enumerates the Thrust Industry for the .....

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and since 2007), the benefits contemplated under Clause 3.1(i)(a) and (b) and also 3.1 (ii) would be available. In other words, the Thrust Industries would be entitled to the benefits of capital investment subsidy as contemplated in 3.1 (ii). What is more, the hotels in question have already been given the benefit of subsidy. Therefore, he would submit that the Act must be construed in the light of the Office Memorandum. The Office Memorandum declares benefits of outright excise duty exemption ( .....

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be construed in the context of the policy of the Government of India in substance. The contention appears to be that unlike the area restrictions, which impact the new industrial units or existing industrial units covered by clause 3.1 (i), in regard to the Thrust Industries, there is no such area restriction. Therefore, the contention is that hotels, which are located in any part of the State of Uttarakhand, would be entitled to the benefit of the income tax deduction under Section 80-IC (b). H .....

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dun, is of no relevance at all and what is relevant is; whether the hotel was set up within the termini of time, which is provided in Section 80-IC. 10. Mr. Pulak Raj Mullick, learned counsel would also point out that the respondent/assessees have made further investments, amounting to expansion within the meaning of the section and, therefore, any denial of the deduction under Section 80-IC would be productive of grave injustice besides being illegal. The Government has, in fact, circulated the .....

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ted that the word Ecotourism is not defined anywhere in the Act. It is more importantly contended that Entry 15 of the 14th Schedule, with which we are concerned, provides for Ecotourism including hotels, spas among other activities as entitled for the benefit of deduction. He would submit that by employment of the word including the intent was clearly to expand the scope of the word Ecotourism and he would rely on the case law, which we would advert at the appropriate stage. To buttress his arg .....

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f Uttarakhand and Himachal Pradesh and to encourage the activities associated with the tourism it is that the business of the hotels were sought to be encouraged. It is the contention, in fact that the only difference in the Office Memorandum dated 07.01.2003 and the item included in the 14th Schedule is the inclusion of the word including and it does not make any difference. As far as the relevance placed on the Government of India s Policy statement in regard to Ecotourism, he would submit tha .....

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No.1/16, same is reproduced hereunder:- 5.0 Disallowance of deduction u/s 80IC of the I.T. Act, 1961 5.1 As mentioned in the brief facts of the case, the assessee claimed deduction u/s 80IC of the I.T. Act, 1961 by commencing the operation of hotel in the A.Y. 2005-06. The assessee, vide query number 1 of Notice u/s 142(1) dated 02-12-2011 was requested to justify his claim of deduction u/s 80IC of the I.T. Act, 1961. 5.2 The assessee vide his reply dated furnished the following reply to the que .....

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at 50% is green belt. A central park has been developed, in which the flowering and foliage, trees, shrubs have been planted along with suitable landscape. Green belt along the compound wall has been developed where 20 non deciduous, flowery and shady trees have been planted. The plantation of trees helps in maintaining proper ecological balance through greenery and god environment and are beneficial to the biological environment. b. DISPOSAL OF SOLID WASTE/GARBAGE- The hotel has a proper policy .....

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ex through vermiculture process. The non-biodegradable waste is compacted through compactor to reduce the volume of the waste and then dispatched to scrap. During monsoon season and some other unavoidable circumstances these solid non-biodegradable waste are transported to dumping sites earmarked by Nagar Palika. (c) FUEL EMISSION- There are no fugitive emission which enhance the ambient air quality. There is no air pollution and as such there will not be any negative impact on the air environme .....

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for different uses. The water descending from the roofs of the building through rain pipe is stored to irrigate the green area. The rain water is routed into ground through soakage pits thereby not letting the water go into waste drainage. (e) ENERGY EFFICIENCY-The hotel has been constructed and developed in a manner to provide good ventilation which reduce energy requirement. The hotel is using quality CFLs and LED lights which are manufactured from non-hazardous material for lighting purposes .....

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quality of heat inflow into the buildings, lessens cooling loads on air conditioners and induces energy saving. Passive Lighting System-Large facing windows are the easiest and cheapest way to increase light in a building, since the south side of a building receives the most sunlight. An open design with glazed apertures. Light shelves and light pies can transmit sunlight into building interiors. Passive Heating Systems-Absorption materials are built south facing walls to store heat during the d .....

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used by the hotel, such as low flow faucets, taps, water saving dual flush tanks in toilets, shower etc. The main source of water for the hotel is bore well. As per analysis of bore well water, the quality of ground water is quite good and is meeting the norms of drinking water class A as per national standard of drinking water. (h) SEWAGE-The domestic effluent is disposed through municipal sewer line. The WC waste goes into government/municipal sewerage system. The hotel also has sewage treatm .....

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re held. All these steps taken by the hotel have enabled the local people to supplement their income, employment increase of knowledge and thereby improving the quality of life of the local people. (j) HEALTH AND SAFETY-The hotel ensures to maintain optimum standard of health and hygiene and proper fire fighting system for safety purposes. This is evidenced by way of certification of hotel premises from Government Health Officer, Nagar Nigam, Dehradun. The hotel has installed a proper and latest .....

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by MDDA or as per National Building Code. This helps in avoiding traffic congestion, noise and vibration in the hotel premises. 12. He would further submit that the Court may also consider the actual finding by the Assessing Officer. Same is reproduced hereunder: 5.5 The submissions of the assessee have been examined. The assessee has taken eco- friendly measures but the assessee established a hotel which is a stand alone hotel and not parcel of eco-tourism actively/project. Therefore, deduction .....

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see, nothing more remains, and even on the finding of the Assessing Officer, the denial of the benefit of the deduction, is patently unsustainable and, therefore, his case deserves differential treatment. 14. He also reiterated that it is a Thrust Industry and, therefore, the benefit of the deduction under Section 80-IC cannot be denied. It is also the case of the assessee that the subsidy was received; there is approval from the Pollution Control Board; there is also approval from District Tour .....

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ng with the appeals under Section 260-A of the Act. The appeal is successfully premised on the existence of a substantial question of law. The following question of law are raised: 1. Whether on the facts and in the circumstances of the case, the ITAT was justified in allowing the claim of deduction under sec.80-IC of the I.T. Act, 1961 by simply following the ITAT s decision in the case of Shri Bidhi Chand Singhal vs. ITO and that also without ascertaining that the assessee was issued NOC from .....

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he findings of fact in certain circumstances may give rise to a substantial question of law. We notice that the tribunal, in fact, has not laboured much on the facts of individual cases. 17. The Tribunal has essentially proceeded to dispose of the appeals in question by merely taking the view that in absence of the definition of Ecotourism, the hotel is to be construed as a hotel in respect of which there is a No Objection Certificate from the Pollution Control Board. The question to be consider .....

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t part of which is located in Dehradun, Haridwar and Udham Singh Nagar. There are also industrial areas in certain other districts. It is true that the Government of India issued the Office Memorandum in the year 2002 as we have noticed. It did promise certain benefits of the industrial units, which are located in certain areas, which are specified therein, namely, industrial estates, etc., and also allowed the Government to issue further notification providing for areas within which if an indus .....

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located in any part of the State of Uttarakhand, inter alia, entitling it to the benefits as we have already discussed. Therefore, the argument runs that whether it is located in a busy city like Dehradun or whether it is in the remote area in Chamoli or Uttarkashi, which are truly hilly areas, it hardly matters. 19. The other line of argument is that the words used in item 15 of 14th Schedule, contemplates the wider meaning being given to Ecotourism and it is for that purpose that the word inc .....

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t may be extensive of the same. When a word is defined to mean such and such, the definition is prima facie restrictive and exhaustive; whereas, where the word defined is declared to include such and such, the definition is prima facie extensive. When by an Amending Act, the word includes was substituted for the word means in a definition section, it was held that the intention was to make it more extensive. Further, a definition may be in the form of means and includes , where again the definit .....

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ed an illustration of such use. The entry refers to Employment in Potteries Industries and is followed by an explanation which reads: For the purpose of this entry potteries industry includes the manufacture of the following articles of pottery namely-(a) Crockery, (b) Sanitary appliances, (c) Refractories, (d) Jars, (e) Electrical accessories, (f) Hospital wares, (g) Textile accessories, (h) Toys, (i) Glazed tiles . Construing the explanation the Supreme Court held that the items included in it .....

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was, therefore, held that Mangalore pattern roofing tiles manufactories were not covered by entry 22 as they were not included in the explanation. Similarly in construing the definition of Prize Chit as contained in section 2(e) of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 the Supreme Court held that the inclusive definition was not intended to expand the meaning of Prize Chit to cover all transactions or arrangements of the nature of prize chits by whatever name called .....

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e farming of land. In holding so LORD KEITH observed: There can be no doubt that in some cases the language of an inclusive definition considered with the general context, can have the effect that the ordinary general meaning of a word or expression is to some extent cut down. The word includes in a particular context may only mean comprises or consists of . 20. The learned counsel for the assessee Mr. Pulak Raj Mullick, in fact, particularly emphasized on the decision of the Hon ble Apex Court .....

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which is used for external use of human beings, but if used for prevention of any disease or disorder in human being, shall also come within the purview thereof. The said definition is an extensive one. It even applies to preparations applied on human body for the purpose of killing insects like mosquitoes, which per se does not have any medicinal or any value for during any disease or disorder in human beings. We may furthermore notice that Parliament consciously used a restrictive meaning whi .....

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of the Act must invariably be attached to the word or expression. Almost to the same effect is the decision of this Court in N.D.P. Namboodripad (Dead) by Lrs. Union of India and others [(2007) 4 SCC 502], wherein the law was stated in the following terms: 18. The word includes has different meanings in different contexts. Standard dictionaries assign more than one meaning to the word include . Webster s Dictionary defines the word include as synonymous with comprise or contain . Illustrated Oxf .....

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ion clause, it is used as a word of enlargement, that is to make the definition extensive and not restrictive. But the word includes is also used to connote a specific meaning, that is, as :means and includes or comprises or consists of . Yet again in Bharat Coop. Bank (Mumbai) Ltd. v. Coop Bank Employees Union [(2007) 4 SCC 685], it was held; … It is trite to say that when in the definition clause given in any statue the word means is used, what follows is intended to speak exhaustively. .....

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ined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise. Therefore, the use of the word means followed by the word includes in Section 2(bb) of the ID Act is clearly indicative of the legislative intent to make the definition exhaustive and would cover only those banking companies which fall within the purview of the definition and no other. Yet again in Commercial taxation Officer, Udaipur v. Rajasth .....

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as comprehending not only such things as they signify according to their nature and impact but also those things which the interpretation clause declares they shall include. There is no dispute in the instant case that the diesel and lubricant is used to generate electricity through DG sets which is admittedly used for the purpose of manufacturing yarn. Thus, it is seen that as diesel is specifically and intentionally included in the definition of raw material by the legislature, the question t .....

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at in a room, let separately, but also includes godowns, gardens and outhouses appurtenant thereto and also any furniture supplied or any fittings or fixtures affixed for the use of the tenant in such building, hut or seat in a room, as the case may be." 21. It is therefore, difficult to agree with Mr. Dwivedi that a medicinal preparation must be one which has the effect of curing a disease. While interpreting an entry in a taxing statute, the Court's role would be to consider the effec .....

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, or to pay higher rate of tax when is liable to pay at a lower rate. An exemption notification may require strict construction, but where a statute merely provides for different rates of tax, application of the principles of strict construction may not be appropriate. Whether a product would be a drug or a cosmetic sometimes poses a difficult question and, thus, answer thereto may not be easy. For the said purpose, the Court may not only be required to consider the contents thereof, but also th .....

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t cannot normally be used for the purpose of interpreting a taxing statute or classification of a product vis-à-vis an entry in statute. However, as a source of authority, Wikipedia is frequently cited by judges around the world. This is not restricted to India alone. The New York Times reports that beginning in 2004, more than 100 opinion in the States have cited Wikipedia, including 13 from federal appeals courts. Is this a good thing? There s a split of authority. Let us notice some. & .....

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pedia, but I don t think it is yet time to cite it in judicial decisions…it doesn t have quality control. He told the Times that if judges use Wikipedia you might introduce opportunistic editing to influence the outcome of cases. • Kenneth Ryesky, a New York tax attorney, says citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in tur .....

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eference -i.e., the same material that the writer saw. These points must be kept in mind by us when we intend to rely on Wikipedia as a source of authority. 21. We may also notice the decision of the Hon ble Apex Court in the case of Ispat Industries Ltd. vs. Commissioner of Customs, Mumbai reported in 2006 (202) E.L.T 561 (S.C.). There the Court was dealing with case under the Customs Traffic Act. In the course of the judgment, the Court lamented the ignoring of the Mimansa Rules of Interpretat .....

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statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs". 32. It may be mentioned that the Mimansa Rules of Interpretation were our traditional principles of interpretation laid down by Jaimini in the 5th Century B.C. whose Sutras were explained by Shabar, Kumarila Bhatta, Prabhakar, etc. The Mimansa Rules of Interpretation wer .....

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oday. However, it is a matter of deep regret that these principles have rarely been used in our law Courts. It is nowhere mentioned in our Constitution or any other law that only Maxwell's Principles of Interpretation can be used by the Court. We can use any system of interpretation which helps us solve a difficulty. In certain situations Maxwell's principles would be more appropriate, while in other situations the Mimansa principles may be more suitable. One of the Mimansa principles is .....

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6 Beed District Central Co-Operative Bank Ltd. vs. State of Maharashtra and Others . Therein the Court referred to the doctrine of blue pencil , and held as follows:- The doctrine of blue pencil' was evolved by the English and American Courts. In Halsbury's Laws of England (4th Edn. Vol.9), p.297, para 430, it is stated: "430. Severance of illegal and void provisions - A contract will rarely be totally illegal or void and certain parts of it may be entirely lawful in themselves. The .....

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the whole contract or only the offending words. Under this standard, only the offending words are invalidated if it would be possible to delete them simply by running a blue pencil through them, as opposed to changing, adding, or rearranging words. (Black, 7th Edn., 1999) This doctrine holds that if Courts can render an unreasonable restraint reasonable by scratching out the offensive portions of the covenant, they should do so and then enforce the remainder. Traditionally, the doctrine is appl .....

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(Banking) A rule in contracts a Court may strike parts of a covenant not to compete in order to make the covenant reasonable. (Merriam Webster) Phrase referring to severance (q.v.) of contract. "Severance can be effected when the part severed can be removed by running a blue pencil through it" without affording the remaining part. Attwood v. Lamont, (1920) 3 KB 571. (Banking)". We, however, are of the opinion that the said doctrine cannot be said to have any application whatsoeve .....

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s' State Insurance Corporation, Trichur v. Ramanuja Match Industries, AIR (1985) SC 278). 23. We may also refer, in this context, to the judgment of Hon ble Apex Court passed by the Constitution Bench in the case of Godfrey Phillips India Ltd. & another vs. State of U.P. & others reported in (2005) 2 SCC 515. There the question arose in the context of Entry 62 of list 2 of the 7th Schedule of the Constitution and the question arose whether as to what is the concept of the word luxuri .....

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he entry speaks of "taxes on luxuries including taxes on entertainments, amusements, betting and gambling". The word "including" must be given some meaning. In ordinary parlance it indicates that what follows the word "including" comprises or is contained in or is a part of the whole of the word preceding. The nature of the included items would not only partake of the character of the whole, but may be construed as clarificatory of the whole. 74. It has also been he .....

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ies of life, there can be no doubt that entertainments, amusements, betting and gambling would come within such understanding. Additionally, entertainments, amusements, betting and gambling are all activities. 'Luxuries' is also capable of meaning an activity and has primarily and traditionally been defined as such. It is only derivatively and recently used to connote an article of luxury. One can assume that the coupling of these taxes under one entry was not fortuitous but because of t .....

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and their content are derived from their context ." 76. Put in other words the included words may be clarificatory or illustrative of the general word. Thus in U.P. State v. Raja Anand; (1967) 1 SCR 362, while construing Art. 31A (2) as enacted by the Constitution (Seventeenth Amendment ) Act, 1964 the relevant excerpt of which read as:- 31-A.(2) In this article,- (a) the expression 'estate' shall in relation to any local area, have the same meaning as that expression or its local e .....

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the concept of land held or let for purposes ancillary to agriculture. The idea seems to be to remove any doubts on the point whether waste land or forest land could be held to be capable of being held or let for purposes ancillary to agriculture." 83. Hence on an application of general principles of interpretation, we would hold that the word luxuries in Entry 62 of List II means the activity of enjoyment of or indulgence in that which is costly or which is generally recognized as being be .....

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d is doubtful or obscure, or where a particular expression when taken singly is inoperative, the intention of the party who used it may frequently be ascertained by looking at adjoining words, or at expressions occurring in other parts of the same instrument, for qua non valeant singular juncta juvant-words which are ineffective when taken singly operate when taken conjointly: one provision of a deed, or other instrument, must be construed by the bearing it will have upon another. 25. It is in t .....

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nd to provide concessions in various forms so that the economy of the State may grow. It is bearing in mind both these aspects that we undoubtedly construe the provision in question. 26. Ordinarily, the use of the word include would mean an extension of the meaning. A general word followed by specified categories would mean that the Legislature includes within the scope of the provisions, things or persons or circumstances, which may ordinarily not come within the scope of the general word and t .....

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a case, it would take the flavour of a definition clause which uses means and includes . The intention of the word includes or including could also bear a restrictive meaning. It would depend upon the context of the provision. See in this regard the decision of the Hon ble Apex Court in Godfrey Philip s case. 27. We may not be justified in accepting Shri Pulak Raj Mullick s contention that this is a case where there is a fiction introduced. It is true that when a fiction is introduced in law, t .....

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ave already adverted to. Nonetheless, we could safely refer to the following as it appears to accord with the understanding of the concept by the Government of India. 29. We may also notice that Ecotourism, in fact, is defined in the Geographical Dictionary of Oxford University Press as Development and management of tourism such that the environment is preserved. The income from tourism adds to the investment into the landscape conservation . In Merriam Webster s Online dictionary, Ecotourism is .....

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part of any provision redundant or superfluous. In regard to the States of Uttarakhand and Himachal Pradesh, we must, therefore, proceed on the basis that the word Ecotourism , has been carefully and guardedly chosen in contradistinction to the word tourism . Quite clearly Ecotourism cannot be the same as tourism. Mainstream tourism is certainly a larger concept and it would encompass within itself Ecotourism. The use of the word Ecotourism in the context of the States of Himachal Pradesh and Ut .....

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Uttarakhand is broadly dividable into the hilly areas and the plain areas. Can it not be said that the intention of the law giver was to promote Ecotourism, and towards that end, to encourage the setting up of hotels, spas, amusement parks and sites close to the nature in areas reflecting pristine beauty? Could it have been the intention of the Legislature to provide a right to a hotelier to claim deduction by setting up a hotel in a completely urban area, which is far remote from any signs of e .....

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red to in clause 3.1.(i). In regard to the same, undoubtedly, the geographical restrictions were applicable. In regard to the Thrust Industries when it was said in the Office Memorandum that it will be without geographical restrictions, and subsequently Section 80-IC was inserted, no doubt, without any geographical restrictions, we are left to ponder and answer the question as to whether such restrictions would not inevitably flow from the company the word hotel keeps and the use of the word inc .....

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vant would be, whether in the context of its business, it causes no harm or the least harm to its surroundings; whether it provides employment to the local population; whether it develops local culture and arts; does it produce the least impact on environment; whether it resorts to recycling; what steps it takes towards the energy efficiency and water conservation; does it enhance the cultural and economic set up and integrity of local people; does it promote sustainable use of biodiversity and .....

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, if such a requirement is actually there, which issue we will address. 33. We are of the view that it is not the intention of the Legislature that any person who sets up a hotel within the time limits indicated in the State of Uttarakhand, without any regard to the exact location, and the manner in which it operates, its impact on the nature (environment), its relationship with the local people (local community), what it does for the people there, indiscriminately, all such hotels should be ent .....

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case are relied on by Shri Pulak Raj Mullick. We have already extracted the relevant passage. Even applying the Mimansa Principles, we are at a total loss as to how any assistance would be derived from the principles laid down in the Mimansa Principle of Interpretation. The argument appears to be that subordinate accessory must be rendered subservient to the principle. There can be no quarrel with the same but that involves an answer to the question which is the principle. In fact, the acceptanc .....

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ut its application to the facts of this case is totally without foundation when the Legislature has deliberately intended Ecotourism to be at the heart of its decision to give a deduction. We are at a loss as to how it can be itself done away in order to provide for deduction to a hotel, which is merely engaged in tourism and not Ecotourism. In other words, we are of the view that in the setting in which Entry 15 of 14th Schedule appears, it should yield the following result. Only hotels, which .....

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tice to the words, the context and object of the statute. Certainly, the mere procurement of a No Objection from the Pollution Control Board cannot be determinative of a question, whether the hotel fulfills the requirement under Section 80-IC of the Act. May be, it is not in dispute, in fact, according to Shri Pulak Raj Mullick that for all hotels of a particular type, satisfying a particular requirement, no objection is required from the Pollution Control Board. In this context, we bear in mind .....

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