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TMI Blog1985 (7) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rajasthan Sales Tax Act, 1954 (No. 29 of 1954) ("the Act" herein): "Whether, in the facts and circumstances of the case, supply of cement bags by the Executive Engineer to the contractor for price for utilisation in the execution of contract constituted sale and this turnover attracted levy of tax?" The Board has accordingly submitted the statement of the case and referred the aforesaid question. During the pendency of this reference the Rajasthan Sales Tax (Amendment) Act, 1984 (No. 20 of 1984) ("the Amendment Act" herein), was promulgated. Sub-section (2) of section 1 of the Amendment Act provided that the Amendment Act shall come into force on such date as the State Government may, by notification in the official Gazette, appoint. By ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tractor was a sale within the meaning of the Act and assessed the transaction of supplying of cement to the contractor during the assessment year 1957-58. The non-petitioner lodged an appeal and the Deputy Commissioner (Appeals), Commercial Taxes, Udaipur, by his order annexure B, dated 31st July, 1965, accepted the appeal observing that the assessing authority erred in levying tax on the supply of cement made to the contractor for execution of Government contract by treating such supplies as sales. He, therefore, set aside that order and remanded the case back to the assessing authority for making reassessment in the light of the observations made therein. Being dissatisfied, a revision under section 14(1) of the Act was filed against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arose out of the Board's order. An application under section 15(2) was filed in this Court. In view of the decision reported in Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC); AIR 1970 SC 253, this Court opined that a question of law does arise from the Board's order. It, therefore, directed the Board to make the reference on the aforesaid question which we have now heard as a revision under section 13(11) of the Amendment Act. We have had an advantage of hearing the learned standing counsel of the Sales Tax Department only as despite service of notice, nobody has appeared on behalf of the non-petitioner. For the proper appreciation of the controversy involved in this case it will be relevant to notice the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te carries on the business of selling or supplying goods in the State through a manager or agent, the manager or agent shall, in respect of such business, be deemed to be a 'dealer' for the purpose of this Act." "Sale" has been defined in section 2(o) of the Act as follows: "(o) 'sale' with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable consideration including a transfer of property in goods made in course of execution of a contract, but does not include a mortgage, hypothecation, charge or pledge; Explanation 1.-A transfer of goods on hire-purchase or other instalment system of payments shall, notwithstanding the fact that the seller retains a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Act by necessary intendment. It was held in that case that when a department of the State Government or the Central Government carries on business activity, it is a "dealer" within the meaning of section 2(f) of the Act. Clause (11) of the contract provides that the material supplied to the contractor by the Engineer-in-charge shall be the absolute property of the Government and shall also be not removed from the site of the work. It further provides that unused material shall be returned to the Engineer-in-charge. The Board held that where the agreement says that the property in the goods has not passed, sale cannot be said to have been effected. After construing the terms of the agreement it was observed that property has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement, the non-petitioner was to supply cement to the contractor on payment of its price. Similar condition was interpreted by their Lordships of the Supreme Court in Hindustan Steel Ltd.'s case [1970] 25 STC 211 (SC); AIR 1970 SC 253, wherein the goods supplied were to remain the property of the company, it was held that the supply amounted to sale, taxable under the Orissa Sales Tax Act, 1947. The Board, in our opinion, was not right when it came to the conclusion that since the title of the cement had not passed to the contractor it did not constitute "sale" so as to attract the liability of the non-petitioner to pay the tax under section 3 of the Act. We adopt the reasons given in Hindustan Steel Ltd.'s case [1970] 25 STC 211 (SC); AI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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