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Kays Construction Company Vs. the Judge (Appeals) Sales Tax and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case Number Civil Misc. Writ No. 2315 of 1961
Judge
Reported in[1962]13STC302(All)
AppellantKays Construction Company
RespondentThe Judge (Appeals) Sales Tax and anr.
Appellant Advocate K.C. Saksena and ; P. Chaturvedi, Advs.
Respondent Advocate The Standing Counsel
DispositionPetition allowed
Excerpt:
- - the sale and supply of such immovable property was clearly outside the legislative entry empowering the state legislature to enact a sales tax law regarding 'taxes on sales of goods',i......the petitioner as 'contractor' arid his activity in regard to this contract as 'work' and not as 'sale and supply' of any material. there is a mention of supply of 'stores and fittings i.e., steel and electrical fitment etc., by the contractors at their cost'. but this does not make it a divisible contract, one for work to be done by the petitioner and the other for the sale and supply of raw materials which might be used in the construction work, for the very simple reason that whether the petitioner quoted the cost price of the raw materials or quoted a higher price of the raw materials, assuming that mention of price was necessary he was in either case to get only a fixed sum of rs. 50,200 and for extra work another sum of rs. 400 and, nothing more. it follows that the mention of.....
Judgment:

Brijlal Gupta, J.

1. This is a writ petition under Article 226 of the Constitution. The prayer contained in the petition is that a writ of certiorari may be issued quashing the order of the Sales Tax Officer dated 28th March, 1960, and of the Judge (Appeals) Sales Tax dated 27th July, 1961.

2. The facts giving rise to this writ petition are that the petitioner is a contractor who took a contract from the North Eastern Railway to build a certain number of passenger bogies for the railway. The underframes were to be supplied by the railway and the property in the frames was always to remain in the railway The superstructure over these underframes was to be constructed by the petitioner. The superstructure was to be raised according to certain specifications. The work was to be completed within a certain time and it was provided in the contract which is an annexure to the affidavit filed in support of the petition that the rate at which the contractor was to be paid for the work will be Rs. 50,200 for each bogie and an additional sum of Rs. 400 for extra work. The work to be done by the petitioner was to consist of 'body construction including painting etc.' It was provided that 'the rate at which the petitioner was to be paid for each bogie was to be inclusive of the cost of all stores and fittings, e.g., steel, wood and electrical fitment etc., requisite for body construction according to drawing and specifications and schedule which will be supplied by the contractors at their cost'. It goes on to state that when the work on any coach exceeds 50 per cent., the petitioner shall be entitled to payment of 50 per cent, of the stipulated amount and to full payment on completion of each coach. Other paragraphs in this contract, viz., paragraphs 3, 4, 5, 6, 9(a), 9(c) etc., all speak of the petitioner as 'contractor' arid his activity in regard to this contract as 'work' and not as 'sale and supply' of any material. There is a mention of supply of 'stores and fittings i.e., steel and electrical fitment etc., by the contractors at their cost'. But this does not make it a divisible contract, one for work to be done by the petitioner and the other for the sale and supply of raw materials which might be used in the construction work, for the very simple reason that whether the petitioner quoted the cost price of the raw materials or quoted a higher price of the raw materials, assuming that mention of price was necessary he was in either case to get only a fixed sum of Rs. 50,200 and for extra work another sum of Rs. 400 and, nothing more. It follows that the mention of 'supply of raw materials-by the contractors at their cost' was more or less meaningless ,as the contractor was not going to be paid separately for the construction work and for supply of materials. It follows that the contract between the petitioner and the railway was one indivisible contract which could not be split up into two separate contracts, one for the construction work and the other for the sale and supply of materials.

3. For the assessment year 1955-56 under an assessment order made by the Sales Tax Officer the petitioner was assessed to a sales tax of Rs. 31,o66-43nP. on a turnover of Rs. 19,88,25o-75nP. I am informed by Shri H. N. Seth, learned counsel for the State, that this amount represents the total sum of money paid by the railway to the petitioner in respect of the work done by him at the rate of Rs. 50,200 plus possibly Rs. 400 extra for every coach. The petitioner went up in appeal against the assessment order and the Judge (Appeals) Sales Tax dismissed the appeal and affirmed the assessment order. The view taken by the authorities below was that even though in the case of State of Madras v. Gannon Dunkerley A.I.R. 1958 S.C. 560 the Supreme Court ruled that in the case of a building contract no 'sale' was involved and the contract was one and indivisible and no sales tax could be charged in respect of the cost of materials which may have been supplied by the contractor and used in the construction work, the case related to the sale and supply of material which at that point of time when it could be deemed to have been supplied to the principal had partaken of the nature of immovable property. The sale and supply of such immovable property was clearly outside the legislative entry empowering the State Legislature to enact a sales tax law regarding 'taxes on sales of goods', i.e., sale of movable property.

4. Learned counsel for the petitioner has argued that the Sales Tax Authorities have misunderstood and misapplied the decision of the Supreme Court cited before them. It has been argued that that decision proceeded upon a two-fold ground, the principal one of which was that where a contract was one and indivisible and it was not possible to split up that contract into two contracts, one for the sale and supply of material and the other for work done in making up the material into something different, no part of the total amount paid could be held to be attributable to the sale and supply of material. In such a contract even the concept of 'sale' was not involved because sale can be only of material which is supplied in the very shape or form in which the property was originally agreed to be sold to the principal. It is clear from what was been stated above that in this case there was no contract for the supply of wood or steel or electrical fittings or sanitary fittings. As such the supply, if at all, was of a completely built up coach into which the various kinds of materials had been worked up. The Supreme Court has said that under the law there can be no contract of sale relating to one kind of property and a supply as regards another. That being one of the principles on which the Supreme Court decided the case before it, it follows that the present case is fully covered by the authority of the Supreme Court. It is no doubt true that the Supreme Court referred to another ground also for their decision namely, that in a building contract even if it may be assumed that there is a supply of material, that supply of material is after it has been worked up into the building and as such has become immovable. The mere fact that this ground is not available in the present case would not make the Supreme Court decision any the less binding in the present case. I am, therefore, of the view that the Supreme Court decision fully covers the present case and the Sales Tax Authorities were wrong in distinguishing that case and in not following it.

5. It is argued on behalf of the State that the alternative remedy by way of a revision to the Judge (Revisions) Sales Tax was open to the petitioner in this case. This point, however, is met by a very recent decision of the Supreme Court reported in Carl Still G. m. b. H. v. State of Bihar [1961] 12 S.T.C. 449, in a similar matter. Accordingly there is no force in this objection.

6. The result is that the writ petition must be allowed. A writ of certiorari shall issue quashing the assessment order dated 28th March, 1960, and the order of the Judge (Appeals) Sales Tax dated 27th July, 1961.


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