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TMI Blog1970 (4) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ax separately in respect of materials collected for construction of roads. A reference was sought under section 24(1) of the Orissa Sales Tax Act. A copy of the order of the Tribunal was served on the petitioner on 26th April, 1968. The reference application under section 24(1) was filed on 24th June, 1968, within 60 days. The Tribunal, however, passed the order of reference on 5th November, 1968, about 134 days from the date of filing of the application. The Tribunal ultimately referred the following question for the opinion of the court: "Whether a contract in P.W.D. F-2 agreement as made in the case of the applicant with the P.W.D. involves two contracts-one for labour and the other for sale of goods-put in one agreement form and as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt within 90 days of the receipt of the application. In the present case, the Tribunal admittedly did not make the reference within 90 days. The question is whether the reference judgment of the Tribunal would be void on the ground that it was passed beyond 90 days from the date of filing of the reference application. 5.. The word used in the sub-section is "may". Doubtless in certain contexts the word "may" has the force of "shall" and becomes mandatory, but in the present context it is directory. The reasons are obvious. After the dealer has made his reference application he has no control over the proceedings of the Tribunal, and if, for no fault of his, the Tribunal delays delivering its order, such an order cannot be said to be void. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. Ltd. [1958] 9 S.T.C. 353 (S.C.). We would therefore clarify the position in a simple manner. Under section 2(g) of the Orissa Sales Tax Act, the expression "sale" carries the same meaning as it has in the Sale of Goods Act. Sale involves the concept of transfer of title in movable goods for consideration, either paid in cash immediately or for deferred payment; and the goods that are ultimately to pass are the goods in respect of which the agreement was entered into. If the agreement is in respect of immovable property, it can in no circumstance constitute a "sale" within the meaning of section 2(g). There are many contracts which, though apparently appearing to involve sale of immovable property, also constitute sale of movable proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement and the findings recorded by the Tribunal, that there was no sale of goods. The fact that the petitioner was being paid a major part of the consideration soon after the assembling of the movable goods does not also lead to the conclusion that there was a sale of those goods. Under the agreement such payments were made by way of advances. 8.. We would accordingly answer the question by saying that there are no two contracts (one for labour and another for sale of goods) in the P.W.D. F-2 agreement. It follows that there was no supply of materials for money consideration and they are not liable to sales tax. 9.. In the result the references are accepted, but without costs. The petitioner will be entitled to refund of reference ..... X X X X Extracts X X X X X X X X Extracts X X X X
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