IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14110 of 2007 M/S SPEEDCRAFTS LTD. Versus THE STATE OF BIHAR & ANR ----------- For the Petitioner : Mr. S.D.Sanjay & Mr.Surajamdarshi,Advs. For the State :Mr. Lalit Kishore,AG-III. Mr.S. Bharti, J.C.to III. 8 5.5.2008 The writ petitioner seeks to sell road roller and other construction machinery. In terms of the Bihar Value Added Tax Act 2005 read with the schedule thereto, sale of plant and machinery attracts tax @ 4 per cent. In the event road roller and other construction machinery sold or proposed to be sold by the petitioner are plant and machinery, then it would be obligatory on the part of the petitioner to collect 4 per cent tax from its customers and to deposit the same with the Tax Department of the State. In the event however, road roller and other construction machinery are not plant and machinery, then inasmuch as road roller and other construction machinery have not been identified separately in the schedule to the Act, residuary clause contained in the schedule would be attracted and, accordingly, petitioner will be liable to collect 12.5 per cent tax from its customers and pay the same to the Tax Department of the State. Section 77 of the Act permits traders as that of petitioner to approach the Commissioner before steps have been taken to make assessment of tax or a matter in relation thereto is pending in court to ascertain what would be his tax liability in respect of items he is selling or proposing to sell. Petitioner approached the Commissioner for that purpose, but the same was not of any effect which compelled the 2 petitioner to approach this Court by filing the present writ petition. The Court by an order directed the commissioner to consider the request as was made by the petitioner. The Commissioner, accordingly, has considered the request of the petitioner and has determined that road roller and other road construction machinery would attract tax liability of 12.5 per cent. While doing so, the Commissioner felt that „plant‟ means production facility and „machinery‟ means movers, transmission machinery and all other appliances which generate or transfer power, transmitted or applied and felt that road roller and other construction machinery do not generate or transmit power and they are useful in road construction. He, therefore, held that road roller and other construction machinery are not plant and machinery. The commissioner while opining in the manner, as above, had no occasion to inspect the road roller or any other machinery sold or proposed to be sold by the petitioner. He, therefore, had no knowledge as to how road roller and other equipments function. The Commissioner felt that the road roller and other road construction machinery consume power and do not transmit or generate the same, so they cannot be treated as plant and machinery. The words „plant and machinery‟ have been used in the Schedule for the purpose of denoting things carrying the same meaning as that of plant and machinery. The words “plant and machinery” have not been defined. Therefore, their general meaning should be gathered. The word „plant‟ means plant i.e. tree, as well as machinery. The words „plant‟ and „machinery‟ were included in the Schedule with the word „and‟, used as a conjunctive, to mean that the word „plant‟ should not be taken as plant i.e. tree, but should be plant which is machinery. The word 3 ‟machinery‟ is the plural of the word „machine‟. Machine is a contrivance made by man which by use of an external force generates a force by conversion or otherwise for the purpose of doing a desired work. When more than one machine does the work, it is called machinery. When more than one machinery does the work it is called a plant. In common parlance, when the words „plant‟ and „machinery‟ with the word „and‟, used as a conjunctive, is used, the same denote a combination of more than one machine, which by use of an external power produces power to do a desired productive work. Nothing has come on record from which we can find whether road rollers are combination of more than one machine and, accordingly, can be said to be a machinery or whether the same is a combination of machinery and, accordingly, can be called a plant. Similar is the case in relation to other road construction machinery sold or proposed to be sold by the petitioner. One must keep it in mind that if the legislature wanted to restrict the entry only to industrial plant, it would have used suitable words to denote the same. It having not done so and in stead having used the words „plant and machinery‟ it must be deemed that the legislature intended to bring within the ambit of the said entry all such machinery, i.e. combination of more than one machine, used for a desired productive activity, not confined to industrial out-put only. We, accordingly, feel that we must remit back the matter to the Commissioner with a request to him to ascertain the function of the items that the petitioner is selling or seeking to sell and thereupon to come to the conclusion whether those items do fall or not within the 4 Jay/ scheduled entry „plant and machinery‟. We also request the Commissioner, subject to co-operation by the petitioner, to expedite the matter and, accordingly, dispose of the writ petition. (Barin Ghosh,J) (C.M.Prasad,J)