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TMI Blog1975 (7) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Commissioner of Sales Tax, M.P. v. Mohammad Zahoor, P.W.D. Contractor, Sidhi (No. 108-IV of 69) also in-between the same parties, but for different periods of assessment. Since the point involved in all the appeals was common, they have been disposed of by the common order. Under these circumstances, the judgment in this case will also govern the following miscellaneous civil cases: (i) Misc. Civil Case No. 34 of 1972; and (ii) Misc. Civil Case No. 33 of 1972: Commissioner of Sales Tax v. Mohammad Zahoor. 2.. The Tribunal has referred the following question to be answered by this court: "Whether, under the facts and circumstances of the case, the iron and cement supplied by the P.W.D. to the assessee for use in the works executed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice was finally deducted from the payments due to the contractor, the transaction amounted to a sale and since the assessee had accordingly purchased the aforesaid articles for being used in the works and for which he had charged the State Government, he was liable to purchase tax in accordance with the provisions of section 7 of the Madhya Pradesh General Sales Tax Act. For the sake of convenience, section 7 of the Act is reproduced below: "7. Levy of purchase tax.-(1) Every dealer who in the course of his business purchases any taxable goods from a registered dealer, in circumstances in which no tax under section 6 is payable on the sale price of such goods or from any other person and either consumes such goods in the manufacture of ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from time to time to be used by him for the purposes of the contract only and the value of the full quantity of material and stores so supplied at the rates specified in the said schedule or memorandum may be set-off or deducted from any sums then due or thereafter to become due to the contractor under the contract or otherwise or against or from the security deposit or the proceeds of sale thereof, if the same is held in Government securities, the same or a sufficient portion hereof being in this case sold for the purpose. All material supplied to the contractor shall remain the absolute Property of Government and shall not on any account be removed from the site of work and shall at all times be open to inspection by the Engineer-in-char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to remain unused at the time of the completion or determination of the contract, the contractor was not entitled to return the same. He could do so only if the department was prepared to take it back. Thus, so far as the contractor was concerned, the articles supplied were his property for which the price, of course, was to be deducted at a later stage at the time of payment of the bills. He had no choice to return the unused materials. There is no dispute that the assessee, who was a registered dealer, disposed of the articles supplied in the manner as stated above, i.e., by using the same in the building works. Under these circumstances, the view of the assessing authority that the dealer was liable to purchase tax appears to be correct. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e returned only if the officer desired so by a written notice and not otherwise. Similarly, the mention of the condition in clause 11 that "All materials supplied to the contractor shall remain the absolute property of Government and shall not on any account be removed from the site of work and shall at all times be open to inspection by the Engineer-incharge." has also been wrongly construed by ignoring the fact that the aforesaid term was operative only during the period prior to completion or determination of the contract. Such provisions were made for avoiding the possibility of pilferage, etc. The price of the articles was not immediately paid and was to be recovered by way of deductions from the bills later on. Under these circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f deductions from the bills due to the contractor. In order to appreciate the true effect of the clause, it is not possible to ignore the circumstances which are to ensue at the time of the completion of the work. If the purchase is complete, and the deductions of the price of the goods supplied have been already made during the period of assessment, the liability to purchase tax cannot be avoided on the ground that there was no purchase. We must look at the whole instrument inasmuch as there may be inaccuracy and inconsistency. We must, if we can ascertain what is the meaning of the instrument taken as a whole in order to give effect if it be possible to do so to the intention of the parties to the document or the frame of it. 9.. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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