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TMI Blog2005 (1) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... 253 towards construction of dams and a sum of Rs. 1,04,37,262 towards design and construction of natural draught cooling towers and the assessing authority had computed the tax liability of the assessee under entry 6 of the Sixth Schedule to the Act at 2 per cent treating the entire turnover as the receipts towards the execution of civil works and had levied the tax at 2 per cent under section 17(6) of the Act. 3.. The Joint Commissioner of Commercial Taxes (Admn.), Gulbarga Division, taking into consideration the amended provision of section 17(6) of the Act and also on verification of the assessment records for the assessment year 1993-1994, in so far as exemption allowed on a sum of Rs. 1,38,84,779 by the assessing authority towards the earth excavation work, had initiated suo motu revisional proceedings under section 21(4) of the Act, proposing to revise the exemption allowed by the assessing authority towards earth excavation works involving labour charges. Since the proposal was not seriously opposed by the assessee, the same came to be confirmed by the Joint Commissioner of Commercial Taxes (Admn.) by his order dated March 23, 1999 and thus subjected the entire considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in SMR. CR. No. 33/98-99 dated March 23, 1999 and also the order passed by the assessing authority dated November 17, 1994 and has further ordered that the contract receipts received towards the construction/erection of cooling towers by the assessee at Raichur Thermal Power station, Shaktinagar, Raichur, amounting to Rs. 1,04,37,262.65 requires to be subjected to tax at 10 per cent as specified under entry 41 of the table appended to sub-section (6) of section 17 of the Act and accordingly, has directed the assessing authority to issue revised demand notice. It is the correctness or otherwise of this order is the subject-matter of this appeal filed by the assessee, being aggrieved by the same. 7.. The learned Senior Counsel Sri Ravivarma Kumar after referring to the meaning of the expression "natural draught cooling towers" from the proceedings of the Fourth International Symposium on natural draught cooling towers and the brochure prepared by the appellant-company, would firstly contend that the "natural draught cooling towers" are nothing but buildings and therefore, design and construction of the cooling towers, should necessarily fall under item No. 6 of the table appended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o specify an item of goods on which tax is levied, must not being a term of science or art be presumed to have been used in the ordinary sense and therefore, it should be understood according to the meaning ascribed to it in common parlance and therefore, while interpreting any item subjected to tax under fiscal laws, resort must be had to their popular meaning or the meaning attached to them by those dealing in them, i.e., in the common parlance or commercial parlance and not to the scientific or technical meaning of such term. Lastly, the learned Senior Counsel would submit that, if two interpretations are reasonably possible, the one in favour of the assessee should be accepted. In support of this contention, the learned Senior Counsel has placed reliance on the observations made by the apex Court in the case of Commissioner of Income-tax, West Bengal v. Vegetable Products Ltd. [1973] 88 ITR 192, Commissioner of Income-tax, Lucknow v. Madho Pd. Jatia [1976] 105 ITR 179 and the observations made by the learned single Judge of this Court in the case of Bharat Vijay Mills Ltd. v. Commissioner of Commercial Taxes [1992] 85 STC 23. Lastly, the learned Senior Counsel would contend t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 17(6) of the Act provides for various forms of works contract. Item No. 6 therein provides for civil works like construction of buildings, bridges, roads, etc. The word "civil works" is a combination of two words, i.e., civil and works. The word "civil" is derived from latin word "civis" meaning a citizen. The word "civil" when used as an adjective to "law" has been defined in the shorter Oxford Dictionary as pertaining to private rights and remedies of a citizen as distinguished from criminal, political, etc. The word "works" means some sort of construction of permanent nature. The general word "works" is limited to something material in the sense of buildings, structures and such like improvements. The plural "works" is used in the sense of operations, project, schemes, plan such as building works, irrigation works, etc. A civil work is always distinguished from the work connected with the defence. If the entry were to be mere "civil works", then it would not have posed any difficulty in accepting the contention of the learned Senior Counsel Sri Ravivarma Kumar that the design and construction of natural draught cooling towers is also a civil work, but the entry reads civil w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s whether brick-kiln without walls and roof would come within the meaning of the word building and whether the owner of the land entitled to claim any rent after the land is vested in the State. While answering this precise issue, the apex Court has observed that the word building has not been defined in the Act and therefore, to be construed in its ordinary grammatical sense, unless there is something in the context or the object of the statute to show that it is used in a special sense different from its ordinary grammatical sense. So construed according to the dictionary meaning, the existence of a roof is not always necessary for a structure to be regarded as a building. Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or open air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for useful purpose. 14.. The test laid down by the apex Court in the aforesaid decision is, to be a building, it should be a permanent structure and designed for useful purpose. In the present case, we are primarily concerned with levy of tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aught Cooling Tower. Before we go into details of the submission canvassed, we intend to notice what is the purpose and object of natural draught cooling towers by referring to the brochures produced by the learned Senior Counsel for the assessee-company and the meaning ascribed in the book of "Elements of Mechanical Engineering by S.B. Mathur and S. Domakundanwar" furnished to us by the learned Government Advocate. 19.. A "cooling tower" according to the brochure produced by the assessee-company is merely a heat dissipater, which produces the requisite temperature drop in the warm circulating water received from the plant and returns the same at a lower acceptable temperature. In such a case, once the re-circulation system is initially changed with water, only a limited quantity is further required to make up for the water loss in the cooling process normally does not exceed two and half per cent of the total quantity circulated. There are four types of cooling towers namely: packed type natural cooling tower, hyperbolic cooling tower, forced draught tower and induced draught tower. 20.. In the instant case, what is contracted and supplied by the contractor/assessee-company is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that entry 40 of the Sixth Schedule and also table appended to section 17(6) of the Act provides for supply and erection of pre-fabricated cooling towers at the work spot of the contractee and as the nature of work that is erected by the assessee-company in designing and constructing the cooling towers at the work spot of the contractee is different, the revisional authority could not have held that the turnover of the dealer in regard to cooling towers would attract levy of tax under entry 40 of the Sixth Schedule. This submission of the learned Senior Counsel, in our opinion, has no merit whatsoever. Entry 40 of the Sixth Schedule is a special entry, which provides for levy of tax on supply which only means sale and erection of cooling towers. Now it is well-settled law that if there are two entries one general and the other special, the special entry should be applied for the purpose of levying tax. We do not intend to burden this judgment with the case laws on this well-settled law. 24.. The learned Senior Counsel would contend that if two views are reasonably possible, the one in favour of the assessee should be accepted. In aid of this submission, the learned Senior Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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