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TMI Blog1961 (7) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... contractor can claim the benefit of subclause (ii) of clause (a) of sub-section (2) of section 5 of the Act for the goods used by him in the execution of such a contract." 2.. Question No. (1) was submitted by the petitioner to the Board of Revenue for reference to this Court. But on a perusal of the facts of this case and the questions of law involved, the Member, Board of Revenue, thought it necessary also to add question No. (2) for a complete disposal of the questions of law involved in the present case. 3.. The short facts of the case are that the Kalinga Construction Company Limited (hereinafter called the petitioner) is a firm of contractors, who undertook the construction of some earthwork in the Hirakud Dam Project. They were registered as dealers under section 9 of the Act. They made an application on 10th April, 1954, to the Sales Tax Officer to include in their registered certificate some earth-moving machineries, motor-trucks, spares, high speed diesel oil, lubricants, tyres, tubes, and flaps for heavy earth-moving machines and trucks etc. for the purpose of purchasing the said articles free of sales tax as they were required for use in the execution of their contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. So that decision has no application to this case where the question is whether it is competent for the Board to refer any question to the High Court other than that framed by the petitioner. There cannot be any dispute in the case before us that question No. (2) does arise out of the order of the Board of Revenue. 5.. This contention is resisted by Mr. G.K. Misra, the learned counsel for the department, who urged that the Board of Revenue was not restricted only to the question sought to be referred to by the petitioner, but it was open to the Board to refer any question of law that may arise out of its order whether it has been stated by the assessees in their application under section 24(1) of the Act or not, In support of his contention he relied upon a decision in Nemkumar v. Board of Revenue, M.P.[1953] 4 S.T.C. 327. , where their Lordships have held that it was the duty of the Board of Revenue to refer all such questions of law as arise out of its own order whether they are stated by the applicant in his application under section 23(1) or not, and the Board of Revenue must consider whether a question of law brought to its notice during the hearing of the case arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, Form No. Ill has been prescribed to be the form in which certificate is to be granted wherein the list of goods which the dealer shall be entitled to purchase free of sales tax for use in the execution of contracts will be noted. Section 5(2)(a)(ii) of the Act provides: "sales to a registered dealer of goods specified in the purchasing dealer's certificate of registration as being intended for re-sale by him in Orissa or for use by him in the execution of any contract in Orissa, and on sales to a registered dealer of containers or other materials for the packing of such goods............. " On the basis of these provisions the petitioner made an application to the Sales Tax Officer to include in his certificate of registration certain goods, such as earth-moving machines, motor-trucks etc., as noted in question No. (1), so as to entitle him to purchase the same free of sales tax. The Sales Tax Authorities rejected the prayer of the petitioner mainly on the ground that the goods were not so used in the execution of the contract so as to entitle him to purchase the same free of tax. We are, therefore, concerned with the question as to what is the nature of the user of goods i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution of a contract work, the limited use of any machineries, trucks, tyres etc. as is sought to be included in his application, is not such use as is contemplated by the law. There is, therefore, no doubt in my mind that the Sales Tax Authorities have rightly refused the prayer of the petitioner to include in his registration certificate the machineries etc. in question. Question No. (1) shall, therefore, be answered in the negative. 7.. Now coming to the second question, Mr. Misra contends that works contract like that of the petitioner is one and indivisible and the petitioner is not a dealer within the meaning of the Act and as such he is not entitled to ask for the relief sought in his application. He based this contention upon the well knows case of State of Madras v. Gannon Dunkerley Co.[1958] 9 S.T.C. 353. In support of his contention Mr. Misra also relied upon a Full Bench decision of the Assam High Court in M.L. Dalmia Co. v. State of Assam[1959] 10 S.T.C. 41., where their Lordships, while dealing with a case under the Assam Sales Tax Act, 1947 (Act XVII of 1947) held: "In the case of a building contract simpliciter, which is one and indivisible, the materials and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the fact that the petitioner is not a dealer under the Act. 9.. Mr. Ghosh next contends that it had been found as a fact by the Board of Revenue that the petitioner is a dealer and for the purpose he relied upon a sentence in the judgment of Sri Ramanathan, the learned Member of the Board, where he said: "So far as the applicant is concerned it appears the petitioners are perfectly justified in mentioning that certain goods which they purchased for use in the execution of contract should be included". On the basis of this observation, Mr. Ghosh contends that this is a finding of fact and should not be disturbed by the High Court and should be taken as conclusive on the point that the petitioner is a dealer. To my mind, this is not the correct position. The reading of the judgment of the Member, Board of Revenue, does not give such an idea at all. There is, therefore, not much force in this contention of the learned Advocate for the petitioner. Thus the petitioner, not being a dealer, is not entitled to the benefit under section 5(2)(a)(ii) of the Act. 10.. In view of the aforesaid discussion, I would answer both the questions in the negative. The reference is answered acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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