1958 (4) TMI 61 - SC - VAT and Sales Tax

Whether the contract of the petitioners with the Government for construction was one and indivisible, or whether it was a combination of an agreement for sale of materials and an agreement for work and labour? Held that - The petitioners, however, are entitled to succeed on the ground that the impugned provisions are not within the authority conferred by Entry 48, and a writ of prohibition should accordingly issue restraining the respondents from taking proceedings for assessment of tax in respect of materials supplied by the petitioners in construction contracts. Appeal allowed.

Summary

Issues:
Validity of provisions of the East Punjab General Sales Tax Act imposing tax on supply of materials in construction works as a sale.

Analysis:
The judgment delivered by the Supreme Court in this case pertained to a petition under Article 32 of the Constitution challenging the validity of certain provisions of the East Punjab General Sales Tax Act. The main issue raised was regarding the imposition of tax on the supply of materials in construction works treating it as a sale. The Court analyzed the relevant provisions of the Act, including definitions of "contract," "dealer," "sale," and "turnover," to determine the scope and applicability of the tax. Section 4(1) of the Act imposed tax on dealers based on their gross turnover, while Section 5 empowered the Provincial Government to levy tax on the taxable turnover of a dealer. Rule 28 provided the method for computing the taxable consideration with reference to contracts. The petitioners, a firm of building contractors, challenged the assessment proceedings initiated by the Assessing Authority, contending that the Act's provisions were ultra vires as they exceeded the legislative competence under Entry 48 of List II of Schedule VII to the Government of India Act, 1935. The Court referred to the decision in Gannon Dunkerley & Co. v. State of Madras, which held that in a building contract, there is no sale of materials, thereby limiting the power of the Provincial Legislature to impose tax on such transactions.

The Court then delved into the specific contract between the petitioners and the Government for the construction of buildings. The key question was whether the contract was indivisible for work and labor or included a distinct agreement for the sale of materials. The evidence presented indicated that the contract was for a lump sum amount for executing works, without a separate agreement for the sale of materials. The Court scrutinized the provisions of the contract, particularly Rule 33, which vested materials in the Government during construction. However, the Court held that such provisions were intended to ensure quality and compliance, not to establish a sale of materials. Drawing parallels from legal precedents, the Court concluded that the contract was for construction services, not for the sale of materials. The Court dismissed the arguments raised by the respondents regarding the definition of "turnover" and "dealer," emphasizing that the Act intended to tax the supply of materials in works contracts as part of the taxable turnover.

Ultimately, the Court ruled in favor of the petitioners, holding that the impugned provisions of the Act were beyond the authority conferred by Entry 48. A writ of prohibition was issued to restrain the respondents from proceeding with the assessment of tax on materials supplied in construction contracts. The Court directed each party to bear its own costs, thereby allowing the petition.