9911796707
TMI Blog1971 (9) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... it 41 is the original tender which was signed by one of the partners of the firm and by the Executive Engineer on behalf of the Government. As per the contract, Government had to supply to the contractors the necessary asphalt for the road. Accordingly, it was supplied by the Public Works Department of the State. Running bills were prepared. The contractors had to pay the price of those materials supplied. From the running bills of payments, in addition to the cost of materials, sales tax was also deducted. According to the plaintiff, cost of materials included the sales tax and still, however, sales tax was again deducted from the payment of bills. Thus, the sales tax was charged twice on the same materials. According to the plaintiff, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est at the rate of 6 per cent. per annum on the sum of Rs. 13,867.53 from the date of the suit till payment. Defendant No. 1 was directed to pay the costs of the plaintiff. Defendants were directed to bear their own costs. Being dissatisfied with that judgment and decree, the State of Gujarat, defendant No. 1, and the Executive Engineer, Public Works Department, defendant No. 2, have filed the present appeal to this court. The only contention urged by the learned Government Pleader before us was that in view of the definition of the word "sale" given in section 2(13) of the Bombay Sales Tax Act, 1953 (which will be hereinafter referred to as "the Act"), and the definition of the word "dealer" given in section 2(6) of the Act, the transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point out anything to us from the record that the Government was carrying on the business of selling or buying goods, viz., asphalt. The learned trial Judge has, in our opinion, rightly come to the conclusion that the Government cannot be said to be a "dealer" within the meaning of section 2(6) of the Act. "Registered dealer" has been defined under section 2(11) of the Act as under: "'registered dealer' means a dealer registered under section 11 or deemed to be a registered dealer under section 12-B." It is not even suggested on behalf of the appellants that the Government was a registered dealer on having been registered under section 11 or could be said to have been deemed to be a registered dealer under section 12-B of the Act. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sell movables for a price and property passing therein pursuant to that agreement. In a building contract which is entire and indivisible, there is no sale of goods, and it is not within the competence of the Provincial Legislature under entry 48 to impose a tax on the supply of the materials used in such a contract treating it as a sale. Hence, the provisions of the Madras General Sales Tax Act which impose a tax on such materials as if there is a sale of them are ultra vires." In the same volume, there is another decision of the Supreme Court in M/s. Peare Lal Hari Singh v. State of Punjab[1958] 9 S.T.C. 412 (S.C.); A.I.R. 1958 S.C. 664. It is observed therein also: "There is thus no sale of the materials made by the contractor in his c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents never became owners by purchase from the colliery, because the colliery would not have sold coal to them, nor could they have bought it unless they had obtained a certificate. The position of the respondents was merely that of agents, arranging the sale to a disclosed purchaser, though guaranteeing payment to the colliery on behalf of their principal. In view of what we have said, no business of selling coal was disclosed in the instance cited before the Collector, and the order of the Tribunal was correct on the facts placed before it." In the instant case also, we cannot say that the Government was doing any business of selling asphalt. Government could not have been said to be a "dealer" within the meaning given in section 2(6) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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