9911796707
TMI Blog2009 (7) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... ification effecting the amendment. The inclusion of power tiller in clear terms in entry 65 though may be viewed as an endeavour to set at rest any possible controversy with regard to its identity and entitlements as an agricultural implement, in the considered opinion of this court, the same ipso facto does not signify that at the commencement of the Act, such a recognition was neither in contemplation nor approved by the law makers. Appeal allowed. - W.P. (C). No. 23 of 2009 - - - Dated:- 21-7-2009 - AMITAVA ROY , J. AMITAVA ROY J. The writ jurisdiction of this court has been invoked to nullify the order dated December 23, 2008 passed by the Commissioner of Taxes, Assam elucidating that the item power tillers is taxable at 12.5 per cent under the Assam Value Added Tax Act, 2003 (hereafter referred to as, the Act ) for the period May 1, 2005 to July 28, 2005, i.e., prior to its inclusion in serial No. 65 of the Second Schedule to the enactment. The show-cause notice dated December 29, 2008 of the Superintendent of Taxes (Central VAT Audit Cell) attached to the Commissioner of Taxes, Assam, Dispur, Guwahati requiring the petitioner-firm to explain as to why its turn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the amendment of entry 65 of the Second Schedule, it was covered by entry No. 1 of that Schedule and thus was taxable at four per cent. By the impugned order, the Commissioner of Taxes, Assam after hearing both the sides has held that in view of the inclusion of the item power tiller in entry 65 of the Second Schedule with effect from July 29, 2005, the legislative intention was to treat it otherwise than an agricultural implement prior thereto and therefore, it was taxable at 12.5 per cent from May 1, 2005 to July 28, 2005. As a consequence of the above determination, the Superintendent of Taxes (Central VAT Audit Cell) issued a show-cause notice dated December 29, 2008 to the petitioner-company requiring it to reply as to why its turnover on power tiller amounting to Rs. 3,72,98,098 for the aforesaid period would not be assessed at 12.5 per cent. The petitioners are thus before this court for redress. The respondents in their affidavit affirmed by the Additional Commissioner of Taxes, Assam, Guwahati, while endorsing the determination made vide the impugned order dated December 23, 2008, have asserted that the item power tiller had never been contemplated to be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the role conceived of the power tillers in the agricultural process, mere inclusion thereof in entry No. 65 of the Second Schedule to the Act would not ipso facto signify the denudation of its individuality as an agricultural implement under item 1 thereof. As the brochure of the power tiller in the business of which the petitionercompany is engaged unambiguously demonstrates that its predominant use is only in agricultural purposes, it is obviously an agricultural implement, he urged. According to him, the practical utility of a power tiller for other incidental purposes like transportation would not be destructive of its uniqueness as an agricultural implement and therefore, the plea of the Revenue to this effect is misplaced. The learned Senior Counsel therefore insisted that the impugned order of the Commissioner of Taxes, Assam to the contrary is a misreading of the relevant provisions of the Act and is therefore liable to be annulled. To button his arguments, Dr. Saraf placed reliance on the decisions of the apex court in, (1) D.H. Brothers Pvt. Ltd. v. Commissioner of Sales Tax, U.P. [1992] 84 STC 267. (2) Hindson Automobiles, In re [1955] 6 STC 660 (Pepsu). ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Agricultural implements, not operated manually or not driven by animal. 65. Tractors, threshers, harvesters and attachments and parts thereof. Fifth Schedule Sl. No. Description Rate of tax (paise in the rupee) 1. All other goods not covered by First, Second, Third and Fourth Schedule 12.5 2. Works contract 12.5 3. Lease transactions 12.5 By Notification No. FTX.55/2005/Pt-II/20 dated July 29, 2005 issued by the Commissioner and Secretary to the Government of Assam, Finance (Taxation) Department, Dispur and published on the same date in the Assam Gazette (Extraordinary), amendments to the Act were introduced in exercise of powers conferred by section 17 thereof whereby, inter alia, the words 'power tillers' were introduced between the words 'tractor' and 'threshers' in entry 65 of the Second Schedule and resultantly the said entry wears a newl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether the sugarcane crusher (kohlu) is an agricultural implement within the meaning of the notification involved, referred to with approval its observations in Commissioner of Income-tax v. Raja Benoy Kumar Sahas Roy [1957] 32 ITR 466 (SC) on the purport of the expressions agriculture, agricultural operations and agricultural purposes . The relevant extract thereof is quoted hereinbelow: (at page 270 of 84 STC) Agriculture is the basic idea underlying the expressions 'agricultural purposes' and 'agricultural operations' and it is pertinent therefore to enquire what is the connotation of the term 'agriculture'. As we have noted above, the primary sense in which the term agriculture is understood is agar field and cultra cultivation, i.e., the cultivation of the field, and if the term is understood only in that sense agriculture would be restricted only to cultivation of, the land in the strict sense of the term meaning thereby, tilling of the land, sowing of the seeds, planting and similar operations on the land. They would be the basic operations and would require the expenditure of human skill and labour upon the land itself. There are however o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners in view of the capacity of its use for the purpose of transportation, haulage, etc., cannot be regarded as an agricultural implement, therefore does not commend for acceptance. The limited perception of agricultural exploits as is sought to be projected by the Revenue to negate the identity of the petitioners' power tiller as an agricultural implement, would in the teeth of realm of agricultural operations viewed and approved by the apex court in Commissioner of Income-tax v. Raja Benoy Kumar Sahas Roy [1957] 32 ITR 466 thus, not only be unrealistic, but also disregardful of the actuals. The decision of the apex court in U.P. State Agro Industrial Corporation Limited v. Kishan Upbhokta Parishad [2007] 13 SCC 246, dwelt upon the issue as to whether an animal driven vehicle could be said to be an agricultural implement. The facts and the device involved being distinctly different, the answer rendered in the negative therein is of no assistance to the Revenue. Entry 1 of the First as well as the Second Schedule to the Act in hand contemplates agricultural implement of two types. Those operated manually or driven by animals are exempted from the levy whereas, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to interpretation, it must be resolved in favour of the subject. The same view was reiterated in substance in T.N. State Electricity Board [2007] 7 SCC 636. That the burden is on the Department to establish in the facts of a given case that the goods in question can by no conceivable reasoning be brought either to any of the tariff items so as to take resort to the residuary item was underlined by the apex court once again in Hindustan Poles Corporation [2006] 145 STC 625; [2006] 4 SCC 85. The unsubstantiated plea of the legislative intendment of exclusion of power tillers from the purview of agricultural implement contemplated in entry 1 of the Second Schedule to the Act, in the absence of any tangible and persuasive materials on record in support thereof thus cannot validate the order impugned. The fact that the same rate of tax for an agricultural implement envisaged in entry 1 of the Second Schedule to the Act as well as power tillers on its insertion in entry 65 thereof has been maintained, cannot also be lost sight of. Had it been the intention of the Legislature to distinguish a power tiller from an agricultural implement, within the meaning of entry 1 of the Seco ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
