Commissioner, Customs Central Excise and Service Tax, Patna vs M/S. Shapoorji Paloonji and Company Pvt Ltd and Ors.

COMMISSIONER, CUSTOMS CENTRAL EXCISE AND SERVICE TAX, PATNA …APPELLANT

VS.

M/S SHAPOORJI PALLONJI AND COMPANY PVT. LTD. & ORS. …RESPONDENTS

WITH

CIVIL APPEAL NO. 3992/2023

UNION OF INDIA & ORS. …APPELLANTS

VS.

M/S SHAPOORJI PALLONJI AND COMPANY PVT. LTD. …RESPONDENTS

JUDGMENT

DIPANKAR DATTA, J.

PREFACE

1. We are tasked to decide two civil appeals that centre around a common

question: whether the educational institutions in question, viz. (i) the Indian

Institute of Technology, Patna (“IIT Patna”, hereafter) and (ii) the National

Institute of Technology, Rourkela (“NIT Rourkela”, hereafter), are covered

1 by the definition of “governmental authority” in Mega Service Tax Exemption

Notification1 (“Exemption Notification”, hereafter) inter alia exempting

various services from the tax network rendered to government,

governmental, or local authorities. If “governmental authority” as defined

in the Exemption Notification takes within its embrace IIT Patna and NIT

Rourkela, they would be eligible for an exemption from the service tax that

otherwise applies to construction services provided by service providers or

subcontractors within their premises.

THE APPEALS

2. In Civil Appeal No. 3991 of 2023 (“CA-I”, hereafter), the appellant assails

the judgment and order dated 03rd March, 2016 of the High Court of

Judicature at Patna (“Patna High Court”, hereafter) whereby a writ petition2

preferred by the first respondent, i.e., M/s Shapoorji Pallonji & Company Pvt

Ltd (“SPCL”, hereafter) was allowed and the service tax collected by the

appellant was directed to be refunded.

3. Civil Appeal No. 3992 of 2023 (“CA-II” hereafter) challenges the judgment

and order dated 05th February, 2018 of the High Court of Orissa at Cuttack

(“Orissa High Court”, hereafter). The Orissa High Court while relying on the

aforesaid decision of the Patna High Court in favour of SPCL, on a similar

1 No. 25/2012, G.S.R 467(E) dated 20th June, 2012 2 CWJC No. 16965 of 2015 2 question of law, allowed a writ petition3 preferred by SPCL for refund of

service tax.

THE RELEVANT NOTIFICATIONS

4. The Exemption Notification, under consideration, was issued by the

Department of Revenue under section 93 of the Finance Act, 1994 (“the

1994 Act”, hereafter) inter alia exempting various taxable services from the

levy of whole of the service tax under section 66B thereof. Clause 12(c) of

the Exemption Notification, which is relevant for the purpose of the present

adjudication, reads as follows:

“12. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of –

(a) ***

(b) ***

(c) a structure meant predominantly for use as (i) an educational,

(ii) a clinical, or (iii) an art or cultural establishment;

(d) ***

(e) ***

(f) ***”

5. Since we are concerned with the interpretation of “governmental authority”,

clause 2(s) of the Exemption Notification defining “governmental authority”

is reproduced hereunder:

“(s) "governmental authority" means a board, or an authority or any other body established with 90% or more participation by way of equity or control by Government and set up by an Act of the Parliament or a State Legislature to carry out any function entrusted to a municipality under article 243W of the Constitution.”

3 W.P. (C) No. 17188 of 2015 3

6. It may also be noticed that section 66D of the 1994 Act, inserted by the

Finance Act, 2012 with effect from 1st July, 2012, specifies the negative list

of services, i.e., the services on which service tax is not leviable.

7. Clause 2(s) of the Exemption Notification underwent an amendment vide a

Notification dated 30th January, 2014 (“Clarification Notification”, hereafter).

This amendment, re-defining "governmental authority", sought to broaden

the scope of the exemption. The amended definition is set out hereinbelow:

“(s) "governmental authority" means an authority or a board or any other body;

(i) set up by an Act of Parliament or a State Legislature; or

(ii) established by Government, with 90% or more participation by way of equity or control, to carry out any function entrusted to a municipality under article 243W of the Constitution.”

8. Having outlined the relevant legal framework under consideration, we

consider it proper to delve into the facts that formed the genesis of the writ

petitions before the Patna High Court and the Orissa High Court.

FACTS

9. The material facts, leading to the presentation of CA-I, are as follows:

a) IIT Patna, the fourth respondent, appointed NBCC India Limited

(“NBCC”, hereafter), the third respondent, as a Project Management

Consultant to oversee the construction of building/facilities/services for

its academic complex. Vide Letter of Award dated 20th December, 2012,

NBCC awarded the contract for construction works to SPCL at a total

contract price of Rs.167,70,09,043.00 (Rupees One hundred Sixty-

4

Seven Crore Seventy Lakh Nine Thousand Forty-Three only). Clause

4.2.4 of the Letter of Award specified that the aforementioned rates did

not include service tax and that SPCL would be reimbursed for this tax

by IIT Patna upon providing receipts.

b) SPCL, in accordance with the Letter of Award, duly registered itself with

the Central Excise and Service Tax (“CEST”, hereafter) and discharged

its service tax obligations amounting to Rs.9,73,25,398.23 (Rupees

Nine Crore Seventy-Three Lakh Twenty-Five Thousand Three Hundred

Ninety-Eight and Twenty-Three paisa) for the period spanning from

March 2013 to April 2015. It is important to note that these service tax

amounts were integrated into the monthly running bills for the

aforementioned months, which were submitted by SPCL and

subsequently approved and paid by IIT Patna. This meant that IIT Patna

was ultimately responsible for settling the service tax dues.

c) The Indian Audit and Account Department raised an audit objection on

30th June, 2015 to the effect that service providers engaged in

construction activities for educational institutions meeting the criteria

of a “government, local authority, or governmental authority” according

to clause 12(c) of the Exemption Notification were not obligated to remit

service tax. Consequently, because IIT Patna was classified as a

governmental authority, the payment of service tax by them was

objected as such payment contravened the exemption provision

specified in the Exemption Notification. Additionally, IIT Patna was

5 directed to immediately undertake actions for the recovery or

adjustment of the service tax previously paid to SPCL.

d) Following receipt of the audit objection, IIT Patna notified NBCC vide a

letter dated 27th August, 2015 and conveyed that the Joint Secretary

(Tax Research Unit) at the Government of India's Ministry of Finance,

Department of Revenue, had clarified the definition of auxiliary

educational services. This clarification included an enumeration of

various services eligible educational institutions could receive and which

would be exempted from service tax. Notably, this clarification did not

specifically mention construction activity. Additionally, IIT Patna

expressed its intention to establish a methodology for the recovery of

service tax reimbursement.

e) Apprehensive of the initiation of recovery proceedings for the service

tax already paid, SPCL approached the Patna High Court seeking the

following relief:

“(i) the instructions of the respondent no.2 dated 30.06.2015 (as contained in Annexure-6) directing immediate recovery adjustment of service tax reimbursed by the respondent no.4 be quashed.

(ii) for a declaration that [IIT Patna] is obliged to reimburse service tax paid by the [SPCL] on the service of construction of its building premises.

(iii) alternatively for a direction to the [Commissioner, Customs Central Excise and Service Tax] to refund the amount of service tax paid by [SPCL] on the service of construction of building premises of [IIT Patna] in pursuance of the contract.”

f) Vide the impugned judgment, the Patna High Court allowed the writ

petition of SPCL and held that IIT Patna would indeed be covered within

6 the definition of a “governmental authority” under clause 2(s). In its

interpretation of clause 2(s), the Court observed that provisions

contained in sub-clauses (i) and (ii) of clause 2(s) are independent

disjunctive provisions and the expression “90% or more participation

by way of equity or control to carry out any function entrusted to a

municipality under Article 243W of the Constitution” is related to sub-

clause (ii) alone because sub-clause (i) is followed by the punctuation

“;” and then by the conjunction “or”. According to the Court, any

authority set up by an Act of Parliament or by an Act of the State

Legislature as envisaged in sub-clause (i), therefore, cannot be made

subject to the condition of “90% or more participation by way of equity

or control” and it is only an authority or a board or any other body

established by the Government as envisaged under sub-clause (ii) of

clause 2(s) that has to meet the requirement of governmental

participation of 90% or more by way of equity or control. It was,

accordingly, ruled that the construction activity undertaken by SPCL is

exempt from payment of service tax in terms of the Exemption

Notification read with the Clarification Notification, followed by a

direction that the service tax collected by the Revenue shall be refunded

to SPCL or IIT Patna, as the case may be.

10. The relevant facts, leading to the presentation of CA-II, are as follows:

a) SPCL was awarded a works contract vide Work Order dated 22nd

February, 2013 by NIT Rourkela to carry out construction projects at its

campus. The total value of the contract was Rs.302,82,39,866.00

7 (Rupees Three Hundred Two Crore Eighty-Two Lakh Thirty-Nine

Thousand Eight Hundred Sixty-Six only). Clause 12 of the Work Order

stated that the aforesaid price shall be inclusive of all taxes except

service tax which may be reimbursed as applicable.

b) SPCL sought clarifications from the Service Tax Commissionerate

regarding the applicability of service tax on services rendered to NIT,

Rourkela.

c) SPCL, however, discharged its service tax liability amounting to Rs

5,79,17,168.00 (Rupees Five Crore Seventy-Nine Lakh Seventeen

Thousand One Hundred Sixty-Eight only) to the Service Tax Department

and raised all the bills to NIT, Rourkela charging service tax. However,

no service tax was paid by NIT, Rourkela claiming that the work

executed is exempt from the payment of service tax.

d) Aggrieved, SPCL approached the Orissa High Court for reimbursement

of such service tax payment.

e) The Orissa High Court, vide the impugned judgment, allowed the writ

petition of SPCL by relying upon the judgment and order of the Patna

High Court, as aforesaid. The Deputy Commissioner of Service Tax was

directed to dispose of SPCL’s pending application for refund of service

tax within two months.

8

SUBMISSIONS

11. Ms. Bagchi, learned counsel representing the appellants in both the appeals,

contended that IIT Patna and NIT Rourkela were not eligible for the benefits

outlined in the Exemption Notification due to its exclusion from the definition

of “governmental authority”. In contesting the impugned judgment and

order of the Patna High Court, she advanced the following submissions:

a) The Amendment to the Exemption Notification carried out vide the

Clarification Notification aimed to broaden its applicability beyond

statutory bodies, extending its benefits to government-established

entities as well. The Clarification Notification further clarified this

expansion by encompassing government-established bodies within the

definition of “governmental authorities”. However, it is important to note

that the requirement of 90% or more government equity or control still

applies to both types of governmental bodies, whether they are

statutory or non-statutory.

b) The High Court's error lay in its interpretation of the sub-clauses as

independent and disjunctive. The deliberate separation of the condition

of “90% or more participation” from sub-clause (ii) serves the specific

intent of making it applicable to both sub-clauses.

c) It is firmly established that punctuation marks alone should not dictate

the interpretation of a statute, especially when meaning of the statute

is clear without them. The general principle is that punctuation marks

carry less weight in the interpretation of statutes, especially when 9 dealing with subordinate legislation. Furthermore, punctuation marks

may convey different impressions, and their interpretation should not

be isolated but considered in conjunction with other clauses to discern

legislative intent. To support this argument, reference was made to the

decisions of this Court in Barun Kumar & Ors. vs. State of

Jharkhand & Ors.4, Bihar State Electricity Board vs. Pulak

Enterprises & Ors.5, and ONGC Ltd vs. Afcons Gunanusa JV6.

d) The terms 'or' and 'and' can be interchangeably interpreted to fulfil the

legislative intent. In this context, reference was made to the rulings of

this Court in Jindal Stainless Ltd. v. State of Haryana7, Barun

Kumar (supra) and Akshaibar Lal (Dr.) v. Vice-Chancellor,

Banaras Hindu University8.

e) The impugned judgment of the Patna High Court carries the risk of

unconditionally broadening the coverage and scope of the exemption to

include various public bodies, such as Telecom Regulatory Authority of

India, Airports Authority of India, and public sector banks. These

entities could potentially claim exemptions under different clauses of

the Exemption Notification, covering various services provided by a

“governmental authority”. A lenient interpretation of the term

“governmental authority” could unfairly burden the exchequer. Reliance

was placed on the decision of a Constitution Bench of this Court in

4 (2022) SCC OnLine SC 1093 5 (2009) 5 SCC 641 6 (2022) SCC OnLine SC 1122 7 (2017) 12 SCC 1 8 (1961) 3 SCR 386

10 Commissioner of Customs (Import), Mumbai vs. Dilip Kumar and

Company & Ors.9 wherein it was held that any notification or a clause

granting an exemption must be interpreted strictly and literally, with

any ambiguity resolved in favour of the revenue.

f) IIT Patna and NIT Rourkela are institutions incorporated under central

statutes, i.e., the Indian Institute of Technology Act, 1961 (“the 1961

Act”, hereafter) and the National Institutes of Technology Act, 2007

(“the 2007 Act”, hereafter), respectively, and they do not carry out any

duties or responsibilities akin to Schedule XII of the Constitution; the

two educational institutions, therefore, do not fall under the

classification of “governmental authority” nor are exempted under the

negative list.

g) SPCL has paid service tax through self-assessment. Reliance was placed

on ITC Limited vs. Commissioner of Central Excise, Kolkata10 in

support of the contention that the order of self-assessment being an

assessment order under the Customs Act, 1962 is appealable and a

refund claim is not sustainable unless the assessment itself is set aside.

h) Classification of IIT Patna as a “governmental authority” has no bearing

on the applicability of service tax to the transaction between SPCL and

NBCC. The crux of the argument lies in the specific nature of this case:

SPCL has delivered its services to NBCC, not directly to IIT Patna. IIT

9 (2018) 9 SCC 1 10 (2019) 17 SCC 46

11 Patna has engaged NBCC as a Project Management Consultant, making

SPCL the service provider and NBCC the service recipient in this

particular transaction. Consequently, it cannot be contended that SPCL

provided services directly to IIT Patna. NBCC lacks the status of a

“government, local authority, or governmental authority” under the

Exemption Notification, and it has not asserted such a claim. Therefore,

the activities and transactions between SPCL and NBCC are subject to

service tax and do not qualify for exemption under the Exemption

Notification.

12. Learned counsel representing SPCL, supported the impugned judgment and

order of the Patna High Court and contended that while construction

services are classified as taxable under section 65 of the 1994 Act, the

Exemption Notification provides an exemption for services rendered to the

Government, local authorities, or governmental authorities. IIT Patna, as

an institution of national importance, was established by the Parliament

under Article 248 of the Constitution, through the 1961 Act. Similarly, NIT

Rourkela was established under the 2007 Act. Consequently, IIT Patna and

NIT Rourkela should be considered governmental authorities in accordance

with clause 2(s)(i) of the Exemption Notification, read in conjunction with

the Clarification Notification. In reply to the submission of the appellants

that the classification of IIT Patna as a “governmental authority” would not

have any bearing on the applicability of service tax to the transaction

between SPCL and NBCC as service provider and service recipient

respectively, learned counsel drew support from clause 29(h) of the

12 Exemption Notification which exempts services provided by sub-contractors

by way of works contract to another contractor providing works contract

services which are already exempted under the Exemption Notification.

Accordingly, it was submitted that there was no merit in the appeals and

the same deserved outright dismissal.

13. Learned counsel appearing for IIT Patna supported the impugned judgment

and order of the Patna High Court. According to him, IIT Patna qualifies as

a “governmental authority” under the Exemption Notification as amended

by the Clarification Notification. It was further submitted that the provisions

contained in sub-clause (i) and sub-clause (ii) of clause 2(s) are

independent disjunctive provisions and the expression ”90% or more

participation by way of equity or control” is related to sub-clause (ii) alone,

meaning thereby that an authority established by Government should have

90% or more participation in order to be exempted from service tax. The

authority set up by an Act of Parliament or State Legislature is not subject

to this condition. No case for interference having been set up, the counsel

prayed for dismissal of CA-I.

ANALYSIS

14. Before we commence our analysis, it would be apt to juxtapose the relevant

clauses from the Exemption Notification and the Clarification Notification for

facility of appreciation:

13

EXEMPTION NOTIFICATION CLARIFICATION NOTIFICATION

2(s) "governmental authority'' means a 2(s) "governmental authority" means an authority board, or an authority or any other body or a board or any other body; established with 90% or more (i) Set up by an Act of Parliament or a State participation by way of equity or control Legislature; or by Government and set up by an Act of (ii) established by Government, the Parliament or a State Legislature to with 90% or more participation by way of equity carry out any function entrusted to a or control, to carry out any function entrusted to municipality under article 243W of the a municipality under article 243W of the Constitution; Constitution;

15. Having read the two definitions, first and foremost, it is necessary to

ascertain the objective behind the Clarification Notification which amended

the Exemption Notification and re-defined “governmental authority”. A bare

perusal of the Exemption Notification reveals that the exemption therein

was only extended to those entities, viz. board or authority or body, which

fulfilled the three requisite conditions, i.e. : a) having been established with

90% or more participation by way of equity or control by Government, b)

set up by an Act of the Parliament or a State Legislature, and c) carrying

out any function entrusted to a municipality under Article 243W of the

Constitution. It is evident that the scope of the exemption was severely

restricted to only a few entities. Although the reason for re-defining

“governmental authority” has not been made available by the appellants,

we presume that unworkability of the scheme for grant of exemption

because of the restricted definition of “governmental authority” was the

trigger therefor and hence, the scope of the exemption was expanded to

cover a larger section of entities answering the definition of “governmental

authority”. An amendment by way of the Clarification Notification was,

therefore, introduced which expanded the definition of “governmental

14 authority” and widened the exemption base for service tax to be provided

even to an authority or a board or any other body, set up by an Act of

Parliament or a State Legislature without the condition of having been

established with 90% or more participation by way of equity or control by

Government to carry out any function entrusted to a municipality under

Article 243W of the Constitution.

16. While the aforesaid interpretation of amended clause 2(s) has been upheld

by the Patna High Court, the appellants have countered the same by

submitting that the amended definition of “governmental authority” as in

clause 2(s) should be interpreted in a manner so as to make the long line

under clause 2(s) applicable to both sub-clause (i) and sub-clause (ii). In

other words, as per the appellants, to qualify as a “governmental authority”

under clause 2(s)(i), such authority, board or body must not only be a

statutory authority set up by an Act of Parliament or a State Legislature but

must also have 90% or more participation of the Government by way of

equity or control to carry out any like function that a municipality under

Article 243W of the Constitution is entrusted to discharge.

17. We have no hesitation to disagree with the latter interpretation sought to

be placed by the appellants, for the reasons that follow.

18. In Superintendent & Legal Remembrancer, State of West Bengal vs.

Corporation of Calcutta11, a nine-judge Bench of this Court, relying upon

Craies’ On Statute Law (6th edn), stated that where the language of a

11 (1967) 2 SCR 170

15 statute is clear, the words are in themselves precise and unambiguous, and

a literal reading does not lead to absurd construction, the necessity for

employing rules of interpretation disappears and reaches its vanishing

point.

19. This Court in Union of India & Ors. vs. Ind-Swift Laboratories Ltd.12,

held that harmonious construction is required to be given to a provision only

when it is shrouded in ambiguity and lacks clarity, rather than when it is

unequivocally clear and unambiguous.

20. What is plain and ambiguous from a bare reading of a provision under

consideration must be interpreted in the same way as it has been stipulated

and not in a way that it presumes deficiency and radically changes the

meaning and context of the provision. This is the view expressed in the

decision of a five-judge Bench of this Court in Commissioner of Sales

Tax, U.P. vs. Modi Sugar Mills Ltd.13. The relevant passage therefrom

reads as under:

“10. […] In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed : it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency.”

21. It is a well-established principle of statutory interpretation that any

authority, entrusted with the function of legislating, legislates for a purpose;

12 (2011) 4 SCC 635 13 (1961) 2 SCR 189

16 it can, thus, safely be assumed that it will not indulge in unnecessary or

pointless legislation. This Court, in Utkal Contractors & Joinery (P) Ltd.

vs State of Orissa14, lucidly explained thus:

“9. […] It is again important to remember that Parliament does not waste its breath unnecessarily. Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily.”

22. Having noticed some of the precedents in the field of interpretation of

statutes, we now move on to a little bit of English grammar. The word “or”

as well as the word “and” is a conjunction; and it is well known that a

conjunction is used to join words, phrases, or clauses. On how the

conjunctions “or” and “and” are to be read, guidance could be drawn from

authoritative texts and judicial decisions. As per Justice GP Singh’s

Principles of Statutory Interpretation, the word “or” is normally

disjunctive while the word “and” is normally conjunctive. In English law, the

position is clear as crystal, as explained by Lord Scrutton in Green vs.

Premier Glynrhonwy Slate Co.15, that one does not read “or” as “and” in

a statute unless one is obliged, because “or” does not generally mean “and”

and “and” does not generally mean “or”.

14 (1987) 3 SCC 279 15 (1928) 1 K.B. 561, page 569

17

23. When the meaning of the provision in question is clear and unambiguous

by the usage of “or” in clause 2(s), there remains no force in the submission

of Ms. Bagchi that “or” should be interpreted as “and”. In our opinion, the

word “or” employed in clause 2(s) manifests the legislative intent of

prescribing an alternative. Going by the golden rule of interpretation that

words should be read in their ordinary, natural, and grammatical meaning,

the word “or” in clause 2(s) clearly appears to us to have been used to

reflect the ordinary and normal sense, that is to denote an alternative,

giving a choice; and, we cannot assign it a different meaning unless it leads

to vagueness or makes clause 2(s) absolutely unworkable. We are fortified

in our view by the decision of this Court in Sri Jeyaram Educational Trust

vs. A.G. Syed Mohideen16, where it was held thus:

“11. It is now well settled that a provision of a statute should have to be read as it is, in a natural manner, plain and straight, without adding, substituting or omitting any words. While doing so, the words used in the provision should be assigned and ascribed their natural, ordinary or popular meaning. Only when such plain and straight reading, or ascribing the natural and normal meaning to the words on such reading, leads to ambiguity, vagueness, uncertainty, or absurdity which were not obviously intended by the legislature or the lawmaker, a court should open its interpretation toolkit containing the settled rules of construction and interpretation, to arrive at the true meaning of the provision. While using the tools of interpretation, the court should remember that it is not the author of the statute who is empowered to amend, substitute or delete, so as to change the structure and contents. A court as an interpreter cannot alter or amend the law. It can only interpret the provision, to make it meaningful and workable so as to achieve the legislative object, when there is vagueness, ambiguity or absurdity. The purpose of interpretation is not to make a provision what the Judge thinks it should be, but to make it what the legislature intended it to be.”

16 (2010) 2 SCC 513

18

24. In the present case, the word “or” between sub-clauses (i) and (ii) indicates

the independent and disjunctive nature of sub-clause (i), meaning thereby

that “or” used after sub-clause (i) cannot be interpreted as “and” so as to

tie it with the condition enumerated in the long line of clause 2(s) which is

applicable only to sub-clause (ii).

25. Applying a different lens, let us test the worth of Ms. Bagchi’s submission in

the light of the punctuations in clause 2(s). It has been held by a bench of

nine Hon’ble Judges of this Court in Kantaru Rajeevaru vs. Indian Young

Lawyers Association & Ors.17 that when a provision is carefully

punctuated and there is doubt about its meaning, weight should

undoubtedly be given to the punctuation; however, though a punctuation

may have its uses in some cases, but it cannot certainly be regarded as a

controlling element and cannot be allowed to control the plain meaning.

While so observing, this Court considered several decisions as well as the

punctuation comma in the relevant provision of the Supreme Court Rules,

2013.

26. What follows is that punctuation, though a minor element, may be resorted

to for the purpose of construction.

27. In the present case, the use of a semicolon is not a trivial matter but a

deliberate inclusion with a clear intention to differentiate it from sub-clause

(ii). Further, it can be observed upon a plain and literal reading of clause

2(s) that while there is a semicolon after sub-clause (i), sub-clause (ii)

17 (2020) 9 SCC 121, para 18.

19 closes with a comma. This essentially supports the only possible

construction that the use of a comma after sub-clause (ii) relates it with the

long line provided after that and, by no stretch of imagination, the

application of the long line can be extended to sub-clause (i), the scope of

which ends with the semicolon. We are, therefore, of the opinion that the

long line of clause 2(s) governs only sub-clause (ii) and not sub-clause (i)

because of the simple reason that the introduction of semicolon after sub-

clause (i), followed by the word “or”, has established it as an independent

category, thereby making it distinct from sub-clause (ii). If the author

wanted both these parts to be read together, there is no plausible reason

as to why it did not use the word “and” and without the punctuation

semicolon. While the Clarification Notification introduced an amended

version of clause 2(s), the whole canvas was open for the author to define

“governmental authority” whichever way it wished; however, “governmental

authority” was re-defined with a purpose to make the clause workable in

contra-distinction to the earlier definition. Therefore, we cannot overstep

and interpret “or” as “and” so as to allow the alternative outlined in clause

2(s) to vanish.

28. Let us consider the problem from a different angle. The revised definition of

“governmental authority” and the few punctuations in the definition (two

semicolons and two commas) and the conjunction ‘or’ have been noticed

above. Literally read, the conjunction ‘or’ between sub-clauses (i) and (ii)

clearly divides the two clauses in two parts with the first part completely

independent of the second part. The first part is by itself complete and

20 capable of operating independently. A construction leading to an anomalous

result has to be avoided and to so avoid, it has to be held that the long line

of clause 2(s) starting with “with 90%” and ending with “Constitution”

qualifies sub-clause (ii); and, if the conjunction ‘or’ is to be read as ‘and’,

meaning thereby that the portion “with 90% … Constitution” has to be read

as qualifying both sub-clauses (i) and (ii), then the intention of re-defining

“governmental authority” would certainly be defeated. As discussed earlier,

the purpose for which “governmental authority” was re-defined must have

been to make it workable. We cannot, therefore, resort to a construction

that would allow subsistence of the unworkability factor. Assuming what Ms.

Bagchi contended is right, it was incumbent for the appellants to bring to

our notice, if not by way of pleading, but at least with reference to the

relevant statutes, which of the particular authorities/boards/bodies are

created by legislation - Central or State – “with 90% or more participation

by way of equity or control by Government”. Each word in the definition

clause has to be given some meaning and merely because promoting

educational aspects is one of the functions of a municipality in terms of

Article 243W of the Constitution read with Schedule XII appended thereto

is no valid argument unless equity or control by the Government, to the

extent of 90%, is shown to exist qua the relevant authority/board/body.

Incidentally, neither is there any indication in the petition nor has Ms. Bagchi

been able to disclose the identity of any such authority/board/other body

which is covered by her argument. No such identified authority/board/body

covered by the aforesaid construction of the definition of “governmental

authority” in clause 2(s) of the Clarification Notification, which the

21 appellants appeal to us to accept, having been brought to our notice, we

are unable to find any fault in the decisions of the Patna High Court and the

Orissa High Court extending the benefit of the Exemption Notification to the

educational institutions, and a fortiori, to SPCL.

29. We need not draw guidance from any of the decisions cited by Ms. Bagchi,

except one, on the question of construction of the relevant clause because

none of those decisions had the occasion to deal with the issue emanating

from the Exemption Notification and the Clarification Notification that we

are tasked to consider.

30. Ms. Bagchi heavily relied on the decision of a five-judge Bench of this Court

in Dilip Kumar (supra) to urge that in case of any ambiguity in interpreting

an exemption notification, the interpretation that favours the revenue must

be adopted; also, the burden of proving applicability of the exemption

notification would be on the assessee to show that his case comes within

the parameters of the exemption clause or exemption notification. At the

outset, we record that there is absolutely no quarrel with the proposition

laid down therein. We, however, reject the contention of Ms. Bagchi based

on Dilip Kumar (supra) because the ratio is not applicable to the facts and

circumstances of this case. This, for the simple reason, that there exists no

ambiguity insofar as the interpretation of clause 2(s) is concerned. We are

endorsed in our opinion by the Latin maxim quoties in verbis nulla est

ambiguitas, ibi nulla expositio contra verba expressa fienda est, which

means that when there is no ambiguity in the words, then no exposition

contrary to the words is to be made. It is, therefore, clear as a sunny day

22 that there arises only one plausible construction of clause 2(s) which is the

one the Patna High Court adopted, and which we are inclined to uphold.

31. Ms. Bagchi had submitted that the impugned judgment broadens the scope

of the exemption to include vast number of statutory bodies; therefore,

unfairly burdening the exchequer. We observe that the authority having the

competence to issue a notification completed its job by re-defining

“governmental authority” and now it is a task entrusted to the courts to

interpret the law. It is, at this juncture, important to notice the law laid

down by this Court, speaking through Hon’ble O. Chinnappa Reddy, J. in

Girdhari Lal & Sons v. Balbir Nath Mathur18. The position of law was

affirmed in the following terms:

“6. Where different interpretations are likely to be put on words and a question arises what an individual meant when he used certain words, he may be asked to explain himself and he may do so and say that he meant one thing and not the other. But if it is the legislature that has expressed itself by making the laws and difficulties arise in interpreting what the legislature has said, a legislature cannot be asked to sit to resolve those difficulties. The legislatures, unlike individuals, cannot come forward to explain themselves as often as difficulties of interpretation arise. So the task of interpreting the laws by finding out what the legislature meant is allotted to the courts. Of course, where words are clear and unambiguous no question of construction may arise. Such words ordinarily speak for themselves. Since the words must have spoken as clearly to legislators as to judges, it may be safely presumed that the legislature intended what the words plainly say. This is the real basis of the so-called golden rule of construction that where the words of statutes are plain and unambiguous effect must be given to them. A court should give effect to plain words, not because there is any charm or magic in the plainness of such words but because plain words may be expected to convey plainly the intention of the legislature to others as well as judges.”

18 (1986) 2 SCC 237

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32. Keeping the above-said ratio in mind, an interpretation of the relevant

provision resulting in the expanded scope of its operation cannot in itself be

sufficient to attribute ambiguity to the provision.

33. To make a statute workable by employing interpretative tools and to venture

into a kind of judicial legislation are two different things. Merely because

the statute does not yield intended or desired results, that cannot be reason

for us to overstep and cross the Lakshman Rekha by employing tools of

interpretation to interpret a provision keeping in mind its outcome.

Interpretative tools should be employed to make a statute workable and not

to reach to a particular outcome.

CONCLUSION

34. For the reasons aforesaid, we find no merit in these appeals. The impugned

judgments and orders are upheld and the appeals are dismissed, without

any order for costs.

……………………………………J (S. RAVINDRA BHAT)

……………………………………J (DIPANKAR DATTA)

New Delhi;

13th October, 2023.

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