9911796707
TMI Blog1958 (3) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... d that separate accounts are maintained in respect thereof. This, however, is not admitted. It has been stated in the affidavit filed by the Assistant Commissioner of Commercial Taxes that in the account books, accounts of the piece-goods business and of the tailoring business are maintained under separate headings but "ultimately the accounts are of the same". So far as the piece-goods business is concerned there is no dispute. For sales of piece-goods to customers the petitioner has paid sales tax and that is not disputed. Dispute arises with regard to the tailoring business. According to the petitioner, its tailoring business consisted of (i) executing orders of customers upon materials supplied by them, and (ii) making up materials sele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department but of course excluding the sale of piece-goods for which, I take it, the sales tax has already been paid. It is this assessment that is being challenged. Mr. Chowdhury, appearing on behalf of the petitioner, formulates his case thus: He states that the company had two distinct departments viz., the piece-goods department and the tailoring department which were wholly unconnected. A customer may go to the piece-goods department and purchase materials and thereupon the property passess to the customer. The customer then takes it to the tailoring department which makes it up. So far as the work of the tailoring department is concerned, it is pure work and labour and, therefore, cannot be assessed to sales tax. Mr. Chowdhury cites ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the definition of works contract, and as pure labour charges they were not taxable; as the taxable turnover was below the minimum it was not liable to be taxed." Mr. Chowdhury has also drawn my attention to Benjamin on Sale where it has been stated as follows: "Where the employer delivers to a workman either all or the principal materials of a chattel on which the workman agrees to do work, there is bailment by the employer, and a contract for work and labour, or for work, labour and materials (as the case may be), by the workman. Materials added by the workman, on being affixed to or blended with the employer's materials, thereupon vest in the employer by accession, and not under any contract of sale." Mr. Chowdhury has cited the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the case of building constructions which are the subject-matter of the Mysore case [1955] 6 S.T.C. 211; A.I.R. 1955 Mys. 41. and Dukhineswar Sarkar's case[1957] 8 S.T.C. 478; A.I.R. 1957 Cal. 283.The only way in which assistance can be derived from the latter case is the principle delineated therein that sale for the purpose of the Bengal Finance (Sales Tax) Act must mean sale as known to law and as governed by the Sale of Goods Act. It has been pointed out there that if any other definition of the sale of goods is attempted, there was a way of making it legal, but that constitutional procedure must be followed first before such a special definition can be permitted. That procedure had not yet been attempted so far as the said Act is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er that part of the transactions belong to group No. (1). In paragraph 5 of the petition it has been distinctly stated that part of the transactions which were the subject matter of assessment consisted of the execution of orders of customers in respect of materials supplied by them. In the affidavit in opposition filed by the Assistant Commissioner it is stated as follows: "With reference to paragraph 5 of the said petition I state that I am not aware whether the petitioner's tailoring business executed orders of customers with materials supplied by such customers. I further state that the petitioner used to accept orders for supply of garments prepared from the materials in the shop of the petitioner selected by such customers and also us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lares such transaction as sale of goods it is doing so contrary to the definition of sale of goods to be found in the Sale of Goods Act. For reasons stated in Dukhineswar Sarkar's case[1957] 8 S.T.C. 478. this cannot be allowed and the provisions of law contained in section 2(4) of the Act is to that extent ultra vires. In this case if the respondents did state that there were no such transactions or if it was stated that upon investigation it was found that there were no such transactions as mentioned in group (1) that would be quite a different matter. But in the affidavit here, a naive assertion that the Assistant Commissioner was not "aware" of the fact does not seem sufficient to me and is certainly not the way in which the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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