Judgment:
ORDER
S.K. Seth, J.
1. Present writ petition is directed against the assessment order dated June 11, 2002 passed by the Additional Commercial Tax Officer, Circle No. 14, Indore and the revisional order dated October 23, 2003 passed by the Divisional Deputy Commissioner of Commercial Tax, Indore division No. 1.
2. Facts relevant for the decision of present petition, lie in a narrow compass. Petitioner is a registered partnership firm carrying on business of works contract. Petitioner-firm is a registered dealer. Petitioner purchased Escorts JCB 3D Excavator Loader from outside the State of Madhya Pradesh and brought it within the local area (Indore) for use. The assessing officer by order impugned (annexure A) assessed and levied entry tax under Section 3-A of the M. P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (hereinafter referred to as ''the Act' for convenience). In addition to tax, the assessing officer had also imposed penalty in the shape of interest. Petitioner challenged the assessment order before the revisional authority and by the order impugned (annexure C), revisional authority maintained assessment with regard to the imposition of the entry tax under Section 3-A, but reduced the amount of penalty. Both these orders are under challenge in this writ petition for appropriate writ or direction.
3. I have heard learned Counsel for the parties at length and also perused material available on record. At the outset it may be pointed out, that at the time of arguments, no submission was made with regard to levy of penalty and they were confined to with regard to rate of entry tax.
4. According to learned Counsel for the petitioner, the revenue authorities were wrong in invoking Section 3-A of the Act for assessing the tax liability of the petitioner-firm under the Act. It was contended that tax liability of the petitioner-firm should have been determined under the charging Section 3 of the Act and not as per provisions contained in Section 3-A of Act. Per contra, learned Government Advocate supported orders impugned and submitted that tax liability was rightly determined under Section 3-A. He urged that the revenue authorities have rightly held that Section 3-A being special provision would eclipse Section 3 of the Act. As such, writ petition being devoid of substance merits dismissal and orders impugned do not call for any interference.
5. After having heard learned Counsel for the parties, question for determination is whether word 'and' occurring between Sub-clauses (i) and (ii) of Sub-section (1) of Section 3-A is 'conjunctive' or 'disjunctive'. Answer to the said question hinges upon the said expression and would determine validity of impugned orders that the tax is chargeable under Section 3 or Section 3-A of the Act.
6. Prior to adverting to the legal aspect of the controversy, it is pertinent to point out admitted facts. Undisputedly item 32 of Schedule II appended to the Act covers JCB excavator Loader being a type of motor vehicle. It is accepted that the Excavator requires registration in the State of Madhya Pradesh under the provisions of the Motor Vehicles Act, 1988. It is also acknowledged that petitioner brought aforesaid Excavator Loader from outside into the local area and is using it during the course of the business. Further that the petitioner, as a registered dealer, is liable to pay commercial tax under the M P. Vanijyik Kar Adhiniyam, 1994 (hereinafter referred to as 'the Adhiniyam', for short) and as such is liable to pay entry tax under the provisions of the Act. It is in this backdrop, the question has to be determined and answered.
7. The Act has been enacted by the State Legislature to provide for levy of entry tax. Section 2(b) defines 'entry tax'. According to definition entry tax means tax on entry of goods covered by Schedules into a local area from any place outside thereof for consumption, use or sale therein. Section 3 of the Act is the charging section. Bare perusal of the charging section reveals that the taxing event is the entry of the specified goods into a local area during the course of business of a registered dealer for consumption, use or sale therein and such registered dealer is liable to pay tax under the provisions of the Adhiniyam. Section 3-A was inserted in the statute book, with effect from May 1, 1999. Section 3-A of the Act provides for levy of entry tax on motor vehicle requiring registration in the State of Madhya Pradesh under the Motor Vehicles Act, 1988 when it is entered into any local area for consumption, use or sale therein by a person who is not liable to pay tax under the Adhiniyam.
8. There could be no dispute with the proposition of law that normally a special law or provision would ordinarily prevail over general provision. In the present case, however, keeping in view the undisputed facts, this Court is of the considered view that the said proposition is inapplicable, unless it is held that word 'and' occurring between clauses (i) and (ii) of Sub-section (1) of Section 3-A is disjunctive. In ordinary usage, 'and' is conjunctive which merely joins together two sentences and sometimes word and 'or' disjunctive. No doubt, at times to give effect to clear legislative intent gathered form the context, 'and' may be read as 'or' in place of conjunctive or vice versa, but if such reading of 'and' as 'or' produces grammatical distortion ; absurd results and makes no sense of the portion following 'and', 'or' cannot be read in place of 'and'.
9. In the light of the aforesaid settled legal position, this court is of the view that both clauses of Sub-section (1) of Section 3-A have to be read together and not in isolation. Once it is found and held that the petitioner, as registered dealer is liable to pay tax under Adhiniyam, then it is not open for the revenue to claim and impose entry tax under Section 3-A of the Act. This would produce absurd result leaving to revenue authorities to select even a registered dealer though covered by charging section, for levy of entry tax under Section 3-A. Provision contained in this section comes into play only when a person who is not liable to pay tax under Adhiniyam enters motor vehicle, requiring registration in Madhya Pradesh, into any local area for consumption, use or sale therein. A person who does not hold registration certificate issued under provisions of Adhiniyam is not obliged to pay commercial tax. Thus, it is clear that Section 3-A is inapplicable to a registered dealer who is liable to pay commercial tax under the provisions of the Adhiniyam. To prevent evasion of tax and resultant revenue loss, Section 3-A has been brought on the statute book, with effect from May 1, 1999 and is directed against a person or an unregistered dealer who, prior to May 1, 1999 was not liable to pay the entry tax under the charging section for causing entry of a motor vehicle into a local area for consumption, use or sale therein. In view of the foregoing discussion, it is clear that word 'and' occurring between clauses (i) and (ii) of Sub-section (1) of Section 3-A is conjunctive. Absence of either limb of clauses (i) and (ii) of Sub-section (1) of Section 3-A would not attract tax liability under the said provision. In view of the facts of the case, Section 3-A would not over shadow provisions contained in Section 3. Consequently, levy of entry tax under Section 3-A of the Act cannot be sustained.
10. Accordingly, orders impugned are hereby set aside. The matter is remitted back to the assessing officer to pass a fresh assessment order with regard to the levy of entry tax in accordance with law. Let the whole exercise be done within three months from the date of receipt of the certified copy of the order. In the result, writ petition is allowed. However, there shall be no order as to the costs.