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United Mosaics Vs. the State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberT.R.C. Nos. 12 and 13 of 1979 and W.P. No. 4359 of 1982 and T.R.C. Nos. 131 and 132 of 1978
Judge
Reported in[1983]53STC124(AP)
ActsAndhra Pradesh General Sales Tax Act - Sections 20(2)
AppellantUnited Mosaics
RespondentThe State of Andhra Pradesh
Appellant AdvocateS. Dasaratharama Reddi, Adv. ;P. Venkatramana Reddy, Adv. ;for A. Suryanarayana Murthy, Adv.
Respondent AdvocateGovernment Pleader for Commercial Taxes
Excerpt:
.....under the..........out in situ. from this bill it is not possible to cull out two contracts, namely, one for the sale of tiles and the other for the work of laying and polishing. the consumer was not concerned with the number of tiles which the assessee used for covering the required area. the consumer was only concerned with the work done at the site and he paid according to measurements. the mere fact that the consumer was obliged to supply the water and electricity cannot detract from the above nature of work. no one carrying on the business of supplying, laying and polishing of mosaic tiles is expected to carry water with him nor to provide his own electricity required for polishing purposes. moreover, the bill indeed expressly states that the charges are inclusive of laying and polishing. in such.....
Judgment:

Jeevan Reddy, J.

1. These two tax revision cases are preferred by the assessee against the orders of the Sales Tax Appellate Tribunal in so far as the Tribunal held that the supply of mosaic tiles and their laying and polishing by the assessee at the site of the consumer amounts to a sale and not to a works contract. We shall briefly note the relevant facts T.R.C. No. 12 of 1979 pertains to the assessment year 1971-72, while T.R.C. No. 13 of 1979 pertains to the assessment year 1972-73. The assessee is M/s. United Mosaics, Trunk Road, Nellore, engaged in manufacture of mosaic tiles and in fixing and polishing of the same at the site specified by the consumer. It also undertakes in situ work. The assessee claimed exemption for its total turnover on the ground that all the transactions entered into by it are works contracts. This plea was accepted by the Commercial Tax Officer by his order dated 28th July, 1973 (1971-72), and 2nd March, 1974 (1972-73). These orders were however revised by the Deputy Commissioner in exercise of his power under section 20(2) of the Andhra Pradesh General Sales Tax Act. He was of the opinion that all the transactions entered into by the assessee amount only to sales and are not works contracts. Accordingly he held that all the transactions of the assessee are exigible to tax. The two appeals preferred by the assessee were heard and disposed of together by the Tribunal. In so far as the in situ work is concerned, the Tribunal held that it amounts to works contract. But in so far as the works relating to supply of tiles, their laying and polishing at the site specified by the consumer is concerned, the Tribunal held that they are sales and not works contracts.

2. For deciding this question, it is necessary to first ascertain the actual nature of the transaction. The only evidence on this question is the bill which is issued by the assessee. The bill, which is extracted in the order of the Tribunal, may be extracted :

'Bill No. 117. Dated : 12-3-1973 UNITED MOSAICS Factory, Trunk Road Nellore-2. NELLORE. ------------------------------------------------------------------------ Particulars Rate per Amount ------------------------------------------------------------------------ White with M.W. 4 size. Chips (1) Hall 421.4 sq. ft. 192.00 100 sft. 808.96 Skirting 85.4 R. ft. 1.50 R. ft. 128.00 (2) Cast in situ work white : Batch rooms, latrines, including Dadda work total area 455.4 sft. 180.00 100 sft. 819.60 II. Ramp. Grey cement. Chequered. 166 sft. 158.00 100 sft. 262.28 ------- Total 2018.84 ------- 2018.84 Amounts received : 2.11.72 400.00 13.11.72 1100.00 ------- 1500.00 Labour charges 551.50 ------- 2051.50 Expenditure 2051.50 Amount returned on 22.3.73 32.66 ------- 2018.84 ------- Sd/- ------------------------------------------------------------------------ Bill No. 117, Dt. 12.3.1973 : 9.11.19 Sri I. Venku Reddy, To : M/s. United Mosaics, Gudur. 17/56, Trunk Road, Works at Naidupet. Nellore-1. Dear Sirs,

Please supply me/us the following goods at the rates noted below and I/we agree to the conditions overleaf. I herewith pay an advance of Rs. and request you to collect the balance through

1. White with marble white No. 4 size chip :

Floor area - 550 sft. @ Rs. 192 per sft. Skirting 105.90 Rft. @ 1.50 per Rft.

2. Bath rooms : White with marble white :

50 sft. cost in situ 180 per 100 sft.

3. Ramp : Grey chequered cement tiles.

200 sft. @ 158 per 100 sft.

The above rates are inclusive of Central excise, laying and polishing.

The indentor has to supply base mortar, water and electricity free of cost.

F.O.R. Factory Nellore.

Yours faithfully,

Sd/-

Signature of Indentor.

Sd/- Representative's signature.

CONDITIONS OF SALE

1. All orders are subject to confirmation and prior sale. Orders once given and accepted cannot be cancelled.

2. Goods once sold shall not be taken back.

3. Packing and forwarding charges shall be extra unless specifically mentioned in the order.

4. Sales tax extra.

5. Any dispute arising out of this contract shall be settled at Nellore.

6. All agreement are contingent upon strikes, accidents and other delays unavoidable or beyond our control.'

3. A perusal of the bill clearly shows that the assessee was charging the consumer for the work done at the site per 100 sq. ft. or per running foot, as the case may be, irrespective of whether the work was done by using the tiles manufactured at the assessee's factory or whether the work was carried out in situ. From this bill it is not possible to cull out two contracts, namely, one for the sale of tiles and the other for the work of laying and polishing. The consumer was not concerned with the number of tiles which the assessee used for covering the required area. The consumer was only concerned with the work done at the site and he paid according to measurements. The mere fact that the consumer was obliged to supply the water and electricity cannot detract from the above nature of work. No one carrying on the business of supplying, laying and polishing of mosaic tiles is expected to carry water with him nor to provide his own electricity required for polishing purposes. Moreover, the bill indeed expressly states that the charges are inclusive of laying and polishing. In such a case, in our opinion, the Tribunal erred in holding that it was only a sale of tiles and that laying and polishing was only incidental to such sale. There was no material before the Tribunal to arrive at such a finding. The Tribunal appears to have based its finding upon the conditions of sale printed at the foot of the bill, namely, that goods once sold shall not be taken back and that packing and forwarding charges as well as sales tax shall be extra. In our opinion, the bill has to be read as a whole instead of dilating upon one or two clauses. If so read, it is clear that it is not a case of a sale but of a works contract, namely, supplying, laying and polishing of mosaic tiles, and that it is one and indivisible contract. Merely because the bill contains clauses that goods once sold shall not be taken back or that packing charges, etc., shall be extra, it cannot be said that the said bill represents two contract, namely, one of sale and other a labour contract. Mr. Dasaratharama Reddi explains that the petitioner uses only one form of bill, whether it is mere sale of tiles or whether it is works contract or whether it is a bill for in situ work. Be that as it may, from the bill placed before us, it is clear that the assessee has undertaken a works contract and the transaction undertaken by him can be said to be complete only when the work is completed at the site.

4. The decision of the Bombay High Court in Hindustan Tiles and Cement Industries v. State of Maharashtra [1975] 36 STC 326 relied upon by the learned Government Pleader has no application to the facts of the present case. That was a case where the contract itself contained the terms of payment, namely, 25 per cent with the order, 60 per cent against delivery, 10 per cent against setting and 5 per cent during polishing. In this case, the Tribunal found, on a consideration of various terms of the contract and the facts and circumstances placed before it, that the transaction was a divisible one and that 85 per cent of the amount payable thereunder represents the cost of tiles while the balance of 15 per cent represents the labour charges. The High Court held that the Tribunal was justified in coming to that conclusion on the material placed before it. Now in so far as the bill in this case is concerned, it does not permit or warrant any such break-up. Hence, it is not possible to apply the principle of the said decision to the facts of the present case. Indeed, neither the assessing authorities nor the Tribunal have attempted such a break-up of the total amount into cost of tiles and cost of laying and polishing. On the other hand, they have sought to treat the entire transactions as a sale. For the above reasons, the tax revision cases are allowed holding that the transactions entered into by the petitioner-assessee for the assessment years 1971-72 and 1972-73 represent works contracts and are not exigible to sales tax. No costs. Advocate's fee Rs. 200 each.

5. Writ Petition No. 4359 of 1982.

6. This writ petition was preferred by the assessee against the notice issued by the Deputy Commissioner proposing to revise the order of assessment for the assessment years 1975-76 to 1977-78, for the same reasons for which the assessment orders relating to 1971-72 and 1972-73 were revised. The proper direction to make in this petition is to observe that the Deputy Commissioner shall examine the matter in view of the judgment in T.R.C. Nos. 12 and 13 of 1979 and pass appropriate orders. The writ petition is disposed of with the above direction. No costs. Advocate's fee Rs. 150.

7. Mr. J. V. Suryanarayana wants us to clarify that the Deputy Commissioner is entitled to go into the question whether it is possible to allocate the bill amounts separately under two or more heads as was done in Hindustan Tiles and Cement Industries v. State of Maharashtra [1975] 36 STC 326. This is a factual aspect, which we make it clear, it is for the assessing or revising authorities to consider in a given case. We make it clear that what we have said in the T.R.Cs. is confined only to the two assessment years concerned therein and so far as the assessment years 1975-76 to 1977-78 are concerned it shall be open to the Deputy Commissioner to go into all such questions as are open to him in law and dispose of the same according to law.

8. T.R.C. Nos. 131 and 132 of 1978.

9. The facts in this case are substantially similar to the facts in T.R.C. Nos. 12 and 13 of 1979, though the assessee is different. The bill which has been issued makes it clear that the charges are billed as per the measurement of the work done at the site and they are payable only after the work is done at the site. The only distinction however is that in this case the amount under the bill is payable in instalments, that is, 25 per cent by way of advance, 50 per cent when the material is delivered at the site, and 10 per cent after laying of the material, and another 10 per cent after two cuttings, and the balance of 5 per cent after finishing of the work. Except this bill, there is no other material. From the mere perusal of the bill, it is not possible to say that 75 per cent of the bill amount represents the price of the tiles, while 25 per cent represents labour charges. It can as well be merely a convenient mode of collecting the amount under the bill. This case would have stood on a different footing, had any material been placed before the authorities to show that the price of tiles is 75 per cent, while 25 per cent of the bill amount relates to labour charge, as was done in Hindustan Tiles and Cement Industries v. State of Maharashtra [1975] 36 STC 326. We are, therefore, unable to hold merely on the basis of mode of collection of bill amount mentioned in the bill that 75 per cent of the amount represents the price of the tiles, while 25 per cent represents the labour charges. For the above reasons, we are unable to hold that 75 per cent of the bill amount should treated as sale amount and liable to sales tax.

10. For the above reasons, these two T.R.Cs. too are allowed, but in the circumstances without costs. Advocates' fee Rs. 200 in each.


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