Skip to content


Nenuram Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 23 of 1963
Judge
Reported inAIR1967Raj50; [1967]20STC551(Raj)
ActsConstitution of India - Article 226; Rajasthan Sales Tax Act, 1954 - Sections 13(1), 14 and 15(2); Sale of Goods Act, 1930 - Sections 19
AppellantNenuram
RespondentState of Rajasthan and ors.
Appellant Advocate M.L. Joshi, Adv.
Respondent Advocate Rajnarain Dy. G.A., Adv.
DispositionPetition allowed
Cases ReferredTripp v. Armitage
Excerpt:
- - 1 wherein it was clearly mentioned that 'the 'chokhats' will have to be supplied and fixed at site along with the masonry work. this contract, it is further urged, included charges for material as well as for labour and skill for making the frames and doors and windows and for fixing them at site and did not and cannot amount in law to a sale of goods as such within the meaning of the act. the principal grounds taken by them in their opposition are first that the petitioner had alternative remedies under the act and that having failed to resort to them, this court should not entertain the present writ application, and, second, that the contract performed by the petitioner for which he has been made to pay sales tax was divisible into a contract for supply of materials and for skill.....modi, j.1. this is a writ petition by nenuram under article 226 of the constitution praying that the assessment order made by the sales tax officer, jodhpur, dated the 24th august, 1961, be quashed and that an appropriate direction or order be issued to him and the other respondents, namely, the state of rajasthan and the deputy commissioner (appeals) excise and taxation, jodhpur, restraining them from making any recovery from the petitioner in pursuance of it.2. the material facts are these. the petitioner is an approved contractor of the public works department of the state. in connection with the construction of a police lines building at pali, the chief engineer of the state had invited tenders for supplying and fixing wooden windows and doors together with frames and painting them.....
Judgment:

Modi, J.

1. This is a writ petition by Nenuram under Article 226 of the Constitution praying that the assessment order made by the Sales Tax Officer, Jodhpur, dated the 24th August, 1961, be quashed and that an appropriate direction or order be issued to him and the other respondents, namely, the State of Rajasthan and the Deputy Commissioner (Appeals) Excise and Taxation, Jodhpur, restraining them from making any recovery from the petitioner in pursuance of it.

2. The material facts are these. The petitioner is an approved contractor of the Public Works Department of the State. In connection with the construction of a police lines building at Pali, the Chief Engineer of the State had invited tenders for supplying and fixing wooden windows and doors together with frames and painting them around April or May, 1959. The petitioner's tender in which he quoted rates for joinery and painting work at 61/4 per cent and 10 per cent below the scheduled rates respectively was accepted, being the lowest. This acceptance was conveyed to him by the Executive Engineer, District Division (South) Public Works Department (B & R) Jodhpur, by his letter No. 10924 dated the 17th July 1958 Ex. 1 wherein it was clearly mentioned that 'the 'Chokhats' will have to be supplied and fixed at site along with the masonry work.'

Thereafter it appears to us that a formal agreement should normally have been executed between the petitioner and the department, but that has not been brought on the record. Apart from the letter of acceptance Ex. 1 to which we have made reference above, the petitioner has brought on this record a certified copy of the tender submitted by him, and which was accepted by the department, (Ex. 2), in which it has been mentioned that the contract was for joinery and painting work in connection with the construction of a police lines building at Pali and that the amount tendered by the petitioner for this entire work was Rupees 1,81,528. The assessee then filed a return for the assessment year 1959-60 and the Sales Tax Officer eventually passed the assessment order Ex. 3 on the 24th August, 1961, which is impugned before us. By this assessment order, the Sales Tax Officer held that the total sales made by the petitioner during the assessment year 1959-60, the accounting year being 1-4-59 to 31-3-60 amounted to Rupees 1,97,212 as verified from the petitioner's account-books. It was contended by the petitioner that the making of the doors and windows and frames was part of a single and indivisible works-contract inasmuch as the said articles were required thereunder not merely to be prepared and supplied but also fixed at site and consequently they were not taxable as sale of goods.

The Sales Tax Officer repelled this contention and held that 'looking to the books of accounts it is found that the price has been charged for Jories and Chokhats which are movable and taxable. In other words, sale of materials of Rs. 1,97,212.00 was made.' He then assessed the petitioner to a total tax of Rs. 6314.07 Paise on the above turnover at certain rates into which it is unnecessary to go for our present purpose and ordered that a demand notice be issued against the petitioner for the aforesaid amount.

3. Aggrieved by this order, the petitioner preferred an appeal to the Deputy Commissioner, Excise and Taxation (Appeals) Jodhpur. He also moved an application under the second proviso to Section 13 (1) of the Rajasthan Sales Tax Act, 1954 (Act No. XXIX of 1954, hereinafter called the Act) which has since been repealed for permission to file an appeal without depositing the tax. This prayer was rejected by the Deputy Commissioner and consequently the appeal was dismissed by an order dated the 28th February, 1962. Thereafter the petitioner again moved an application before that very authority for restoring the appeal but that application was also rejected on the 19th September, 1962. It is in these circumstances that the petitioner filed the present writ application before this Court on the 9th January, 1963.

4. The principal contention raised by the petitioner in this petition is that the work of joinery and painting undertaken by him as a result of the contract mentioned above did not involve the sale of any goods as such but was part and parcel of a works contract which was entire and indivisible and for an inclusive price. This contract, it is further urged, included charges for material as well as for labour and skill for making the frames and doors and windows and for fixing them at site and did not and cannot amount in law to a sale of goods as such within the meaning of the Act. It is also contended that the property in the articles supplied by him to the State did not pass from the petitioner to the latter until they were actually fastened on the spot, and, therefore, up to that time there was no sale, and after they were so fastened, they became immovable property belonging to the State and could in no way be held liable to sales tax on the fooling that there was any sale of the goods as such.

5. This application has been opposed by the respondents. The principal grounds taken by them in their opposition are first that the petitioner had alternative remedies under the Act and that having failed to resort to them, this Court should not entertain the present writ application, and, second, that the contract performed by the petitioner for which he has been made to pay sales tax was divisible into a contract for supply of materials and for skill and labour, and it is, therefore, prayed that the petitioner was rightly taxed and his petition deserves to be dismissed.

6. We shall take up the preliminary objection first.

7. The contention raised by the respondents in this behalf is that the Act is comprehensive and a self-contained enactment which provides for a number of remedies for an assessee. Attention is invited in this connection to Section 13 which provides for appeals and it is contended that although there is a proviso to this section which lays down that no appeal shall be entertained unless it is accompanied by a satisfactory proof of the payment of tax, the appellant cannot better his position by refusing to comply with this provision. Section 14 then provides for a revision to the Board of Revenue.

Under Section 15, the assessee or the assessing authority may require the Board of Revenue to refer any question of law arising out of an order under Section 14 to the High Court within 60 days of the passage thereof and if the Board of Revenue refuses to make such a reference under Sub-section (2) of the same section, the applicant has the opportunity of applying to the High Court for compelling a reference from the Revenue Board. It is strenuously urged before us that as the petitioner failed to avail himself of the various remedies referred to above, he should be held to be disentitled to seek relief by writ in the extraordinary jurisdiction of this Court.

8. In support of the above submission the learned Deputy Government Advocate has placed strong reliance on a decision of this Court in Jethmal Ramaswaroop v. The State, 1959-10 STC 270: (AIR 1958 Raj 262) and of the Supreme Court in Sales Tax Officer v. Shiv Ratan, AIR 1966 SC 142.

9. On the other hand, it is equally strenuously contended by learned counsel for the petitioner that while the submission made by learned counsel for the respondents may be accepted as generally true, that general rule is subject to certain well-known exceptions and it cannot be held to be rightly applicable in those cases where, for example, the Sales Tax Officer acts entirely without jurisdiction or where the tax levied by him is illegal. It is further contended in this connection that thelevy and the recovery of an illegal tax wouldbe clearly violative of Article 265 of the Constitution and would also infringe Article 19(1)(f)thereof, which is one of the fundamentalrights guaranteed by the Constitution underPart B thereof. In support of this submission,our attention has been invited to a number ofcases among which the following may be mentioned: Ranjeet Singh v. State of Rajasthan,ILR (1953) 3 Raj 150: (AIR 1953 Raj 170)and Karam Chand Thappar v. Sales Tax Officer, ILR (1961) 11 Raj 688: (AIR 1963 Raj51).

10. On a careful and anxious consideration of the rival contentions on this aspect of the case, we are inclined to hold the view that generally speaking the High Court will not interfere in cases of this kind brought to its notice under Article 226 of the Constitution until and unless the aggrieved party resorts to and exhausts the various remedies which are open to him under the Act whereunder he has been assessed to a certain amount of tax. But, at the same time, this rule cannot be accepted as one of universal application, and there clearly appear to us to be certain well-recognised exceptions thereto both according to the decisions of this Court as well as of the Supreme Court.

11. Thus in Thakur Ranjeet Singh's case, ILR (1953) 3 Raj 150: (AIR 1953 Raj 170) (Supra) it was held by a Bench of this Court (Wanchoo C. J. and Bapna J.) that where the levy of a lax is itself illegal or where the law imposing the tax is ultra vires the matter should be decided as early as possible, and if the party, in such a case, comes to the High Court under Article 226 it will interfere by (sic) of writ even though another remedy of suit may be open to him.

12. Again in Karam Chand Thappar's case, ILR (1961) 11 Raj 688: (AIR 1963 Raj 51) (supra) it was held (by Sarjoo Prosad C. J. and Beri J.) that where the very levy of a tax is challenged on the ground that it is without legal authority or where a citizen's right to carry on trade and commerce, which is a fundamental right, has been affected and has to be enquired into, it would be open to him to approach the High Court as also the Supreme Court for a writ for the protection of such a right, and in such cases the consideration that he has an alternative remedy would not be a proper ground for refusing relief to him.

In this case, the bench decision of this Court in 1959-10 STC 270: (AIR 1958 Raj 262) (Supra) and Ram Niranjan Kedia v. I. T. Officer, 'A' Ward, Udaipur, ILR (1957) 7 Raj 509: (AIR 1957 Raj 210) upon which reliance was placed while deciding the first mentioned case came up for consideration and were distinguished. We should also like to mention at this place that although the actual decision in Karam Chand Thappar's case was reversed by the Supreme Court in State of Rajasthan v. Karamchand Thappar and Bros., AIR 1965 SC 913, the view of this Court that the existence of an alternative remedy was no bar in the way of a party who came to the High Court with an allegation that its fundamental right had been infringed without authority of law was obviously approved.

13. We might as well point out here that Ram Niranjan Kedia's case, ILR (1957) 7 Raj 509 : AIR 1957 Raj 210 (supra) was one in which an appeal filed by the assessee was pending before the Appellate Assistant Commissioner of Income-Tax when he filed his writ application before this Court, and, therefore, that case is clearly distinguishable.

14. Now so far as we can see, there is a certain amount of irreconcilability between the views taken in Jethmal's case and that in Karam Chand Thappar's case if we may say so with all respect. But as we have already pointed out, the view taken in the latter case as regards the maintainability of the writ application has received the approval of the Supreme Court though the actual decision arrived at in that case was reversed. We are, therefore, inclined to think that we should prefer the view taken by this Court in Karam Chand Thappar's case, ILR (1961) 11 Raj 688: (AIR 1963 Raj 51).

15. The learned Deputy Government Advocate vehemently submitted that the view that he presses for our consideration and acceptance receives strong support from the decision of the Supreme Court in AIR 1966 SC 142 (supra). This case went in appeal to the Supreme Court from a bench decision of this very Court in a sales-tax matter. The assessee's contention before the Sales-Tax Officer was that it was not liable to be assessed to sales-tax because it was not a dealer within the meaning of the Act with respect to his turnover and further because the sales had been made in the course of import within the meaning of Article 286(1)(b) of the Constitution.

The Sales-Tax Officer held that it was a dealer but did not address himself to the question raised by the assessee that the sales were made in the course of import under Article 286(1)(b) of the Constitution and proceeded to make the assessment order. The assessee then filed a petition before this Court under Article 226 of the Constitution praying (1) that the finding of the Sales-Tax Officer that it was dealer was erroneous and (2) that the Sales-Tax Officer had entirely failed to consider the impact and effect of Article 286(1)(b) of the Constitution.

An objection was raised on behalf of the State regarding the maintainability of this petition before this Court on the ground that the petitioner should have availed himself of the alternative remedy of appeal provided under the Act: but the High Court overruled this objection on the ground that the contention of the petitioner was that in view of Article 286(1)(b) of the Constitution, the assessing officer had no jurisdiction to assess the petitioner to pay sales-tax on the sale of goods in the course of import and further that even if there was no total lack of jurisdiction in assessing the petitioner to pay such tax, the principle enunciated in Venkatesharan v. R. S. Wadhwani, AIR 1961 SC 1506 applied and it was a case which should not be dismissed in limine.

Their Lordships disagreed with this view and held that the High Court should have declined to entertain the petition and then made certain observations upon which the learned Deputy Government Advocate places very great reliance :

'No exceptional circumstances exist in this case to warrant the exercise of the extraordinary jurisdiction under Article 226. It was not the object of Article 226 to convert High Courts into original or appellate assessing authorities whenever an assessee chose to attack an assessment order on the ground that a sale was made in the course of import and therefore, exempt from tax. It was urged on behalf of the assessee that they would have had to deposit sales-tax, while filing an appeal. Even if this is so, does this mean that in every case in which the assessee has to deposit sales-tax, he can by-pass the remedies provided by the Sales-Tax Act Surely not. '

Placing his reliance on these observations, the learned Deputy Government Advocate vehemently contended that we should discuss the petitioner's present application on this ground alone.

16. We wish to point out two things in connection with this case. In the first place, so far as we can see it was not a case of patent lack of jurisdiction but the question of jurisdiction was a mixed question of law and fact and according to their Lordships, such a question should not have been decided by the High Court itself but should have been left to be decided by the Sales-Tax authorities themselves. In other words, the question of jurisdiction was a disputed question of fact. In the second place, their Lordships themselves quashed the assessment order made by the Sales-Tax Officer and ordered a remand of the case to him for the decision on the point under Article 286 of the Constitution.

Furthermore, it would be going too far to hold on the authority of this case that under no circumstances the High Court should entertain a writ application under Article 226 of the Constitution regarding a mailer under the Act unless the assessee has exhausted all his remedies under it. For, immediately after the passage we have extracted above, their Lordships were pleased to make the following further observations:

''There must be something more in a case to warrant the entertainment of a petition under Article 226, something going to the root of the jurisdiction of the Sales-Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act.'

Now in saying all this, their Lordships were obviously not making an exhaustive statement of the cases where interference by the High Court under Article 226 was or would be permissible, and their observations are merely illustrative and these would, in our respectful judgment, equally cover a case where the law sought to be imposed upon and recovered from an assessor is an entirely illegal one.

In a case like this, the challenge raised by the assessee certainly goes to the very root of the matter and to subject him in this type of case to the necessity of the meticulous adoption of all the remedies provided by the Act appears to us to be unnecessarily harsh even on the view laid down in Shiv Ratan's case AIR 1906 SC 142 (supra) and need not be insisted upon as the assessee has a right to be saved from the liability to pay such a tax under Article 265 of the Constitution, which, though it does not find place under the Chapter of Fundamental Rights is of no less fundamental importance and which class of case looked at from another angle involves .1 violation of the fundamental right under Article 19(1)(f) also.

17. In this connection we feel templed to refer to another decision of the Supreme Court in Himmatlal v. State of M. P., AIR 1954 SC 403. This was a case of the imposition of a sales-tax without the authority of law. It was held by the Supreme Court that a threat by the State to use the cocercive machinery of the Act to realise the tax from the assessee was a sufficient infringement of his fundamental eight under Article 19(i)(g) and therefore, he was clearly entitled to relief under Article 226 of the Constitution

It was further held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available does not apply where a party has come to the Court with an allegation that his fundamental right has been infringed and seeks relief under Article 226 of the Constitution It was also pointed out in this case that where the remedy provided under the Act was in the nature that before the assessee can avail himself of it he shall have to deposit the whole amount of the tax, such a provision would hardly be accepted as an adequate alternative remedy.

As another instance of the maintainability of a writ application under Article 226 where the fundamental right of a petitioner under Articles 19 and 31 had been violated inasmuch as the goods in his possession had been unlawfully seized by the police without the authority of law, we may invite attention to the decision of their Lordships in Wazir Chaid v State of H.P. AIR 1954 SC 415.

18. We would also like to invite attention in this connection to Calcutta Discount Co. Ltd v. Income tax Officer AIR 1961 SC 372 In this case one of the contentions of the assessee was that the conditions precedent for the assumption of jurisdiction under Section 34 of the Income-tax Act were not at all satisfied and, therefore, the Income-tax Officer had no jurisdiction to proceed under that section and preferred an application under Article 226 of the Constitution to the High Court.

It was objected on behalf of the Revenue that the assessee would have sufficient opportunity to raise that question namely, whether the Income-tax Officer had reason to believe that underassessment had resulted from non-disclosure of material facts, before, the Income-tax Officer himself in the assessment proceedings; and, if unsuccessful there, before the appellate officer or the appellant tribunal or in the High Court under Section 66 (2) of the Indian Income-tax Act. Their Lordships, however, repelled this plea holding that the existence of such alternative remedy was not always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction. It was further observed that:

'When the Constitution confers on the High Courts the power to give relief it becomes the duty of the Courts to give such relief in fit cases and the Courts would be failing to perform their duty if relief is refused without adequate reasons.'

19. To sum up the whole position on this aspect of the case, we would hold that while it is not the duty or the function of the High Courts to act as appellate or revisional authorities in matter of taxation and entertain petitions under Article 226 of the Constitution too readily after an assessment order has been made and such interference would certainly be undesirable where the question of taxability would depend upon a precise determination of certain questions of mixed law and tact and where some of the facts may not be available to the High Court at the time its intervention is sought and therefore, the normal course in such cases can only be for the aggrieved party to exhaust his remedies under the Act and then seek relief in the exercise of writ jurisdiction in the High Court, still, this cannot be accepted as an inflexible view which must be followed with regidity in every case and exceptional cases do occur where the very constitutionality of a taxing statute comes to be attacked or where the action taken by the taxation authority under a particular enactment suffers from a patent lack of jurisdiction or again where as in the present case the tax sought to be levied and recovered from the assessee. It is alleged not without justification, is wholly unlawful or without authority of law and where therefore the fundamental right of a citizen to carry on his trade or profession or to hold or own his property is clearly jeopardised under Article 19 of the Constitution, and in such cases to use the forceful phraseology of their Lordships of the Supreme Court in Calcutta Discount Company's case (supra) at page 380 of the report :

' It becomes the duty of the Courts to go such relief in fit cases and the Courts would be failing to perform their duty if relief is refused without adequate reasons.'

20. Applying these principles to the case before us, we cannot but come to the conclusion that as this is a case of levy and recovery of an entirely illegal tax, we would be failing in our duty if we did not give the necessary relief to the petitioner on account of the mere fact that he failed to exercise all the statutory remedies available to him under the Act or again that his present application to this Court was a little more delayed.

21. In the view of the matter we take the preliminary objection fails and it is hereby dismissed.

22. This brings us to the merits of the case.

23. Now before we deal with this aspect, we may by way of clearing the ground mention that according to the sales-lax Officer, the sale of materials allegedly made by the petitioner for the period under assessment in this case amounted to Rs 1,97,212 Out of this the petitioner has confined his claim before us to a turnover of Rs. 1,81,528 only which was the amount tendered by him for the execution of the joinery and painting work in connection with the Police Lines building at Pali. No material has been brought to our notice so far as the balance of the turn-over namely 15,684 is concerned. Our judgment will, therefore, be confined to the turn-over of Rs. 1,81,528 only for which the petitioner has been assessed to sales-tax by the assessment order which is impugned before us.

24. Now the sole point for determination under this head was and is whether the work of supplying wooden doors and windows and frames therefor and fixing them at site was in the nature of a works contract or it was substantially a contract for the sale of material as such. If it was of the former kind then the law is well settled at this date that it would not be liable to tax as such a contract does not involve any sale of goods within the meaning of the Act. See Madras State v. G. Dunkerley & Co., Madras Ltd., AIR 1958 SC 560. If on the other hand, the contract was and is for supply of goods as such, then the sales-tax would certainly be leviable. The following material seems to bear on this point.

25. In the first place, we have before us the tender submitted by the petitioner Ex. 2 in which it was mentioned that the work for which the tender was given and accepted was 'joinery and painting work' in connection with the construction of the police lines building at Pali. In the second place, we have the Executive Engineer Jodhpur's letter dated the 7th June, 1958, Ex. 3 in which he communicated the acceptance of the petitioner's tender for Rs. 1,81,528 to the petitioner and thereunder he was asked to appear in the department within a week thereof and complete the formal contract.

Unfortunately, that contract has not been placed on the record and at one time we thought that we might call upon the petitioner to produce the same but on further consideration we did not like to insist on it as this would have meant further delay in disposing of this old case. Now the point to notice in this letter of acceptance is that it clearly stipulated that the 'chokhats' will have to be supplied and fixed at site alone with the masonry work. In the third place, we have before us a certificate from the Executive Engineer Jodhpur dated the 16th December, 1960, which was produced by the petitioner before the Sales-Tax Officer.

This also mentions inter alia that the rate paid to the petitioner as per sanctioned schedule of rates of the department was for wood work that is 'for completed item of wood i.e., for supplying and fixing both. ' In the fourth place, we find that as the above certificate was considered to be incomplete by the Sales-Tax Officer, he called for a further certificate from the petitioner and consequently a fresh certificate was filed by him before the Sales-Tax Officer on the 19th May, 1961. This certificate also proceeds from the Executive Engineer and bears the date 17th May, 1961, and reads as follows:

' This is to certify that M/s. NenuramKisnaram contractor Jodhpur has receivedpayment of Rs. 1,66,860 against the followingwork for 1958-59-60 from this division :

1. Constructing police lines building at Pali...... Rs. 1,66,860The aforesaid amount was for the execution of contract of wood work. The agreement was for supply and fixing, that is, both. There was no agreement for supplying only.

It appears from the reply filed by the respondents that even this certificate was not considered to be complete, and, therefore, the Sales-Tax Officer after looking into the books of account of the petitioner, came to the conclusion that 'the price has been charged for Jories and Chokhats which are movable and taxable. In other words sale of materials of Rs. 1,97,212.00 was made'. The Sales-Tax Officer does not appear to us to have come to grips with the contention of the petitioner that the contract for the supply and fixing of the doors and windows and the frames therefor at site was a single and indivisible contract and did not amount to sale of goods as such and after having gone into the assessee's books of accounts, came to the conclusion that the price had been charged for Jories and Chokhats which were movable and taxable.

26. On the material which was brought to the notice of the Sales-Tax Officer and which is before us, we have no hesitation in coming to the conclusion that the contract in question was a single and indivisible contract for the supply and fixing of windows and doors on the spot and that this contract was given and taken for an inclusive price. This contract clearly appears to us to involve payment for supply of material as well as remuneration for services rendered or work performed and was not of a divisible nature that is so much was paid or payable for sale or supply of goods and so much for work performed.

27. We should also like to mention in this connection that to split this contract into its co-called component parts as the respondents would have us do, would be, as it were, to make two contracts instead of one which we have no business to do. But even if such a thing could possibly be done, it would not, in our opinion, involve the element of sale of goods as such. We say so because firstly no goods were sold as movables and property and the goods was, under the circumstances, to pass from the supplier to the employer only when they were fixed at site so that until they were so fixed, no property, in the goods could at all pass, and therefore there was no sale up to that stage and after they were so fixed, the goods became permanent fixtures and as such part and parcel of immovable property where they were fastened. And that being so, it could not possibly be postulated that they were any movables which were sold at that stage.

28. The nearest case to the present one is Man Industrial Corporation Ltd. Jaipur v. The State, ILR (1965) 15 Raj 698: (AIR 1965 Raj 234), which was decided by a bench of this Court to which one of us was a party. It was held inter alia in this case, after an elaborate discussion of various Indian and English decisions bearing on the subject that sale of goods means a transfer of ownership of movable property from one person to another for price and that it was not open to break up the works contract which was indivisible in its nature into its co-called component parts and to treat one of its such parts as a sale of goods.

It was further held that where by virtue of a composite contract, plants and machinery are fixed in the land of the employer by a contractor which work involves the application of technical skill and the employer agrees In give and the contractor to take an all inclusive price then such a contract is an indivisible works contract and is not a contract of sale of goods as such. This decision seems to us to apply with full force to the case before us and is binding on us.

29. Apart from this, we would invite attention to the cases referred to with approval by their Lordships of the Supreme Court in their judgment in Dunkerley's case AIR 1958 SC 560 (supra) in paragraphs 39 to 42 thereof and in particular to the case of Tripp v. Armitage, (1839) 4 M and W 687 : 150 KR 1597 in support of the conclusion to which we have come. There one Bennett, a builder, had entered into an agreement with certain trustees to build a hotel. The agreement provided, inter alia, that the articles which were to be used for the structure had to be approved by the trustees. Thereafter Bennett became bankrupt.

A dispute arose between Ins assignees in bankruptcy and the trustees as regards title to certain wooden sash-frames which had been approved by the trustees but had not yet been fitted in the building. The trustees claimed them on the ground that properly therein had passed to them as soon as they had approved the same. This contention was repelled by Lord Abinger, C. B. in the following words :

'..... this is not a contract for the sale and purchase of goods as moveable chattels; it is a contract to take up materials, and to fix them; and until they are fixed by the nature of the contract, the property will not pass. '

On this view, therefore, the property in the wooden sash-frames continued to vest in Benneit's assignees in bankruptcy and so there was no sale thereof. We need not refer at length to the other cases which have been referred to with approval by the Supreme Court as illustrative of the same principle.

30. The principle deducible from these cases is that there could be no sale of goods within the meaning of the Act until the wooden windows and doors were fastened on the spot because the contract was not merely to make certain materials but to fix them, and, until they were so fixed, the property in the goods would not pass. The further question which then arises is whether any sale of goods came into existence after the windows and the doors had been fixed on the spot The answer to this question must also be in the negative. The reason is that when they were so fixed, they became an accretion to the building on the principle of quicquid plantatur solo, solo cedit and the ownership thereof vested in the employer, not as a result of the contract but as the owner of the land. See Dunkerley's case (supra).

31. The correct legal position therefore, of a contract of this nature is that such a contract is in the nature of a works-contract which is entire and indivisible, and the contractor was bound to complete the same before he could claim payment, and as the price settled for the same was an all inclusive one, there was no sale of goods in such a contract at all material times; for, at the time the goods were prepared or taken on to the employer's premises, there was no sale of goods as such because the property in the goods could not pass from the contractor to the employer until they were fixed on the spot and thereafter when the goods were fixed at site, they became part and parcel of the immovable property of the employer on the principle of accretion and not because of any contract for sale of goods as movables and, therefore there were no goods which could become the subject-matter of sale at that stage within the meaning of the Sale of Goods Act. This was the position in Man Industrial Corporation's case, ILR (1965) 15 Raj 698: (AIR 1965 Raj 234), (supra), and, that is so as well here.

32. Our conclusion therefore, is that in so far as the petitioner was assessed to sales-tax for the execution of the contract in question, the assessment is invalid and must be quashed.

33. We, therefore, allow this application and quash the assessment order dated the 24th August, 1961, in part that is, in so far as the petitioner has been assessed to sales-tax thereunder for supply and fixture of wooden windows and doors and frames 'therefor in connection with the construction of the police lines building at Pali during the accounting year 1-4-1959 to 31-3-l960. As this assessment order appears to us to have been made with respect to certain other sales also during the accounting period in question, it will be forthe Sales-Tax Officer to separate the turnover relating to them from that relating to thecontract in question, and our judgment shallhave no effect on these other sales. Havingregard to all the circumstances of the case,we leave the parties to bear their own costsof this writ application.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //