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TMI Blog1967 (9) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... of his jurisdiction in the assessee's appeals confined to parts of the turnover which, according to it, had been wrongly brought to tax by the assessing authority. A further ground is also urged that the assessment of the enhanced turnover was barred by limitation and the Tribunal's view to the contrary is not correct. The finding of the Tribunal on the first ground has been recorded in these words: "On an overall consideration of the entire material before us, we are inclined to hold that the predominating element in the transactions was the sale of built body, that the work and labour were only subsidiary, that it was immaterial whether a body was prepared in accordance with the specifications given by the customer, then and there and fitted on to the chassis or the body had been already prepared prior to the order and was readily fitted with the chassis, that the sale of the property was the predominating element, that the use of labour and skill was only incidental and that, therefore, the element of sale predominated over the element of contract of work and labour." The phraseology so used by the Tribunal is not accurate and reveals an approach not altogether apposite t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repairs and after dismantling to make the vehicle roadworthy. I hereby agree and definitely understand that Messrs. T.V. Sundaram Iyengar Sons Private Limited assume no responsibility for loss or damage by whatever means to vehicles or spares placed with them for storage, sale or repair. The above vehicle/spares left in your premises or driven by your employees is entirely at my employer's/owner's risk as regards accidents, damage by fire or any other causes. Sd...................... Order accepted: Sd........... Signature of customer Date of delivery promised:" While taking delivery of the vehicle, the customer is required to$BR$acknowledge as hereunder: "Vehicle checked and kept ready. Parts Sd.............. Service Salesman 10,382-8-9 I have this day taken delivery of the above vehicle/spares after repairs in good order and to my satisfaction. I hereby agree to the various jobs listed in this Repair Order Sheet and also in the Continuation Repair Order Sheets Nos......and further accept to pay the amount noted alongside being charges for repairs and parts replaced to the above vehicle. Petrol Sundries Labour Total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded the value of repairs carried out to motor vehicles. This court said that in order to constitute a sale of goods, there should be an agreement between the parties to sell and purchase, the agreement should be with reference to the particular goods and there should be transfer of property in such goods. This shows that there may be a contract of works which includes sales of specific or particular goods in that sense. On the facts, the Supreme Court in Carl Still G.m.b.H. v. State of Bihar[1961] 12 S.T.C. 449. found that it was a case of a works contract, namely, assembling and installing machinery, plants and accessories for a coke oven battery and by-products plant. The court was of the opinion that the contract was an entire and indivisible one for construction of specified works for a lump sum and not a contract of sale of materials as such. McKenzies Limited v. State of Bombay[1962] 13 S.T.C. 602., Commissioner of Sales Tax, U.P. v. Haji Abdul Majid Sons[1963] 14 S.T.C. 435. , Jiwan Singh Sons v. State of Punjab[1963] 14 S.T.C. 957., Patnaik and Company v. State of Orissa[1965] 16 S.T.C. 364., McKenzies Ltd. v. State of Maharashtra[1965] 16 S.T.C. 518., Sarvodaya Motor W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property of the Railway. These cases show that there is unanimity of opinion as to some of the major tests to be applied in the construction of a contract, and the difference in view in a few of these cases resulted in their application to the particular terms of the contract. The major tests are those which we mentioned earlier in this judgment and on facts Patnaik and Company v. State of Orissa[1965] 16 S.T.C. 364. appears to be very near to the instant case. It makes no difference that in that case the chassis were supplied by the Government. In the cases before us, the intention of the parties has to be gathered only from the terms of the filled in order forms and connected vouchers rather than from the contracts entered into between the parties which were not produced before the revenue or the Tribunal. Considerable reliance has been placed for the assessee on the words in the Repair Order "to construct and mount" and the varying specification in each case of bus-body-building. It is also said that delivery is made not as bus-body as such but as bus. We are unable to regard these facts as in any way inconsistent with the transactions being sales of goods. The terms, as far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Board of Revenue, if the time for appeal against an order under section 12 has not expired or such order has been made the subject of appeal to the Appellate Assistant Commissioner, the Appellate Tribunal or of revision in the High Court under section 38. An appeal to the High Court is provided by section 37 from an order of the Board of Revenue under section 34 which is objected to. In the light of these provisions, it is contended for the assessee in this court that as its appeals to the Appellate Assistant Commissioner were confined to that part of the order of the assessing authority in relation to certain amounts collected by way of tax under section 8-B(2) of the Madras General Sales Tax Act, 1939, and in one of the appeals, a further question as to the character of the transaction, which had been brought to tax, was alone raised, the Appellate Assistant Commissioner in dealing with those appeals has no power to travel beyond their scope, reopen the assessment order relating to bus-body-building contracts which was not objected to by the assessee in the appeals and thus enhance the assessment by taking the view that they are not works contracts but sales of goods. It is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjected to by the assessee, the limitation to the special powers of the Deputy Commissioner and the Board of Revenue under sections 32 and 34 would have been differently worded in sub-section (2) of each of those sections. The language of sections 32(2)(a) and (b) and 34(2)(a) and (b) is consistent with the view that the power of enhancing the assessment under section 31 extends to the entire range of assessment. Though the Income-tax Act, 1922, adopts a different scheme, and decisions thereunder may not always be apposite to the construction of other fiscal enactments like the Madras General Sales Tax Act, 1959, yet it appears that the phraseology of sub-section (3)(a)(i) of section 31 of the Madras General Sales Tax Act, 1959, has been reproduced word for word from sub-section (3)(a) of section 31 of the Income-tax Act, 1922. Sections 32(2)(a) and (b) and 34(2)(a) and (b) of the Madras General Sales Tax Act, 1959, substantially follow the pattern of clauses (a) and (b) to the proviso to section 33-A of the Income-tax Act, 1922. There are numerous cases interpreting the scope of the power to enhance under section 31 of the Income-tax Act, 1922. It will suffice to refer only to Nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion our attention is invited to State of Jammu and Kashmir v. Caltex (India) Ltd[1966] 17 S.T.C. 612., where the Supreme Court referred to Bennett and White (Calgary) Ltd. v. Municipal District of Sugar City(1) and observed that the principle laid down there, namely, where the assessment consists of a single undivided sum in respect of the totality of property treated as assessable and one component in such sum is not assessable and wrongly included, the assessment is bad in its entirety, had no application to the assessment under the Sales Tax Act before it. The Supreme Court pointed out: "But the principle (of Bennett and White (Calgary) Ltd. v. Municipal District of Sugar City[1951] A.C. 786. has no application in the present case because the sales tax is imposed, in ultimate analysis, on receipts from individual sales or purchases of goods effected during the entire period and it is possible to separate the assessment of the receipts derived from the sales for the period from January 1, 1955, to September 6, 1955, and to allow the taxing authorities to enforce the statute with respect to the sales taking place in this period and also prevent them by grant of a writ from impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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