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TMI Blog2011 (8) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... truments and apparatus) would cover mobile handsets. In view of the preceding analysis, we hold that mobile handsets are covered under entry 49 of Schedule II of the 1976 Act and excisable to levy for entry tax at the rate of one per cent. For the aforementioned, reasons the contention raised by learned senior counsel that entries have to be given their common parlance meaning and, therefore, the mobile handsets cannot be treated as wireless reception instruments and apparatus, does not deserve acceptance. Even assuming for the sake of argument that mobile handsets cannot be treated as wireless reception instruments and apparatus then also it would be covered under expression electronic and electrical goods under entry 53 of Schedule II of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructing all the assessing officers that entry tax is not being charged on mobile handsets treating them as covered under entry 1 of Schedule III, whereas the mobile handsets are only a kind of wireless reception instrument and apparatus and, therefore, are covered by entry 49 of Schedule II and taxable at the rate of one per cent. Accordingly, all assessing officers were directed to examine the cases afresh to see whether the entry tax has been levied on such goods or not and to take appropriate action. Respondent No. 4 on the basis of the aforesaid circular assessed the petitioner to entry tax for a period from December 20, 2004 to March 31, 2005. The assessing officer vide order dated June 25, 2007 (annexure P2) held that mobile handset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel has submitted that entries in taxing statute have to be given their common parlance meaning. For the aforesaid proposition he has placed reliance on the decisions reported in Madhya Pradesh Pan Merchants Association, Santra Market, Nagpur v. State of Madhya Pradesh (Sales Tax Department) [1956] 7 STC 99 (Nag), Ramavatar Budhaiprasad v. Assistant Sales Tax Officer [1961] 12 STC 286 (SC), Krishna Coconut Co. v. Commercial Tax Officer [2001] 121 STC 239 (SC); [2001] 34 VKN 99, Fr. William Fernandez v. State of Kerala [1999] 115 STC 591 (Ker). It is also submitted that entries 49 and 53 of Schedule II existed on the statute book since 1999 however, from 1999 till 2007 the assessing officers in the State of M.P. have been treating mobile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rabindra Singh v. Financial Commr. [2008] 7 SCC 663). It is equally well-settled in law that general words are construed to include new inventions and technological advantages not known at the time when the Act was passed. It has accordingly been held that telephone is telegraph within the meaning of that word in Telegraphs Act, 1863 and 1869 although telephone was not invented in 1869 (See Senior Electric Inspector v. Laxminarayan Chopra AIR 1962 SC 159 and Vishnu Agencies (Pvt.) Ltd. v. Commercial Tax Officer [1978] 42 STC 31 (SC); AIR 1978 SC 449). Following the same principle it has been held by the Supreme Court in Laxmi Video Theatres v. State of Haryana AIR 1993 SC 2328 that definition of "cinematograph" contained in sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples of wireless equipments in use today include cellular phone, pagers, global positioning of system, cordless telephone sets, etc. In view of the aforesaid enunciation of law by the Supreme Court and in view of the fact that a comparative modern device and equipment, namely, mobile handset was coming in vogue at the time when the M.P. Commercial Tax Act, 1994 was enacted, there is no difficulty in holding that general words used in entry 49 (wireless reception instruments and apparatus) would cover mobile handsets. In view of the preceding analysis, we hold that mobile handsets are covered under entry 49 of Schedule II of the 1976 Act and excisable to levy for entry tax at the rate of one per cent. For the aforementioned, reasons the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer to make an order determining the rate of tax. From perusal of circular dated January 27, 2007, it is apparent that it has not been issued because there was some dispute with regard to rate of tax on goods in question. Therefore, the contention of the learned senior counsel that circular dated January 27, 2007 has been issued under section 70 of the M.P. VATAct, 2002 cannot be accepted. For yet another reason, the aforesaid contention cannot be accepted, because the rate of tax under entry 49 as well as entry 53 is the same. Even assuming for the sake of argument that mobile handsets cannot be treated as wireless reception instruments and apparatus then also it would be covered under expression electronic and electrical goods under entry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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