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TMI Blog2016 (7) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... tract, the fact that it also happens to be a motor vehicle, would not change this fundamental feature which would be sufficient to bring the equipment within the purview of entry 35. In absence of any specific entry pertaining to motor vehicle, merely because a certain equipment satisfies description of being a motor vehicle, in addition to being a machinery used in execution of works contract, cannot carry it to the residuary clause. Prior to 15.2.2010, any construction equipment which was a machinery used for execution of works contract even if it happened to be a vehicle would fall within entry 35. - Decided in favor of assessee. - TAX APPEAL NO. 517 of 2013 - - - Dated:- 7-7-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE APPELLANT : MR. PRANAV TRIVEDI, ASSISTANT GOVERNMENT PLEADER FOR THE OPPONENT : MR. UCHIT N SHETH, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) This appeal is filed by the State Government challenging the judgment of Value Added Tax Tribunal( the Tribunal for short). While admitting the appeal, following substantial questions of law were framed: (1) Whether in the facts and circumstances of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15.3.08 BACKHO LOADER 2 RI/YAPL/07-08/386 31.3.08 TRACK EXCAVATOR 3 RI/YAPL/07-08/379 31.3.08 LOADERS 4 Sales is not effected during the year SKID STEER LOADER 5 Sales is not effected during the year TELESONIC HANDLER 6 Sales is not effected during the year VIBRATORY TANNDEM ASPHALT COMPACTOR 7 Sales is not effected during the year VIBRATORY SOIL COMPACTOR 8 Sales is not effected during the year CRANE 4. The Joint Commissioner of Commercial Tax by his order dated 16.11.2009 ruled against the assessee. He neither stated that the equipments in question were not machinery nor held that the same was not used in execution of a works contract. He merely relied on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld clearly indicate that prior to such amendment, the motor vehicle which otherwise fulfilled the description contained under entry 35 could not be classified under residuary entry. 8. In support of his contention, counsel relied on the following judgments: (1) Division Bench judgment of this Court in the case of Ambica Woods Works vs. The State of Gujarat, reported in 43 S.T.C. 338 (2) Vicas Tractors vs. Commissioner of Sales Tax, reported in 27 S.T.C. 203 (3) Gem Granites vs. Commissioner of Income-Tax, reported in 271 ITR 322. 9. Having thus heard learned counsel for the parties and having perused documents on record, we may notice that term sale has been defined under section 2(23) of the VAT Act which provides that sale means the sale of goods made within the State for cash or deferred payment or other valuable consideration and includes inter alia in clause (b) transfer of property in goods whether as goods or in some other form involved in execution of a works contract. Term works contract is explained in explanation clause (ii) which provides that for the purpose of clause (b) expression works contract means a contract for execution of works and includes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of construction equipments, we have no hesitation in upholding the Tribunal's view that these were machineries used for the purpose of works contract. 11. The main question therefore, arises is whether these machines being motor vehicles, would be covered by residuary entry. The fact that these vehicles are motor vehicles and were registered or compulsorily registerable under the Motor Vehicles Act is not dispute. However, in our opinion, this would be of no consequence. Entry 35, we may recall, pertains to machinery including parts and accessories thereof used in the execution of the works contract. Admittedly, there is no separate entry for motor vehicles. Therefore, when a question arises where certain equipment is a machinery which is used in the execution of the works contract, the fact that it also happens to be a motor vehicle, would be wholly insignificant. In other words, if an equipment satisfies description of being a machinery used in execution of works contract, the fact that it also happens to be a motor vehicle, would not change this fundamental feature which would be sufficient to bring the equipment within the purview of entry 35. In absence of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /SC/0197/1966:(1967)2 SCR100 and Pappu Sweets and Biscuits vs. Commissioner of Trade Tax, U.P. MANU/SC/0638/1998:1998(62)ECC 593 subsequent legislation may be looked into to fix the proper interpretation to be put on the statutory provisions as it stood earlier. The benefit of Section 80 HHC has been extended by the amendment to a specific kind of mineral and was introduced for the first time in 199. If we were to hold that the word minerals in Sub-section 2(b) never included processed minerals then the 1991 Amendment excepting processed minerals from the exclusionary effect of the sub section would be rendered meaningless and an exercise in futility. 14. Every statute if prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation [See: Keshavan v. State of Bombay MANU/SC/0020/1951: 1951 Cri.LJ 680]. There is nothing in the wording of the 1991 amendment to suggest that it was to operate retrospectively. Apart from the lack of any express words indicating such intention, there is nothing in the statute from which we can infer on any principle of interpretation that the intention of Parliament was to give th amendment retrospec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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