The Commissioner's determination of a question under section 52(1)(c) of the Bombay Sales Tax Act, 1959, must be based on evidence.

Judgment

SHAH,, J.

( 1 ) THE appellants carry on business as contractors for electric installations and are registered as dealers under the Bombay Sales Tax Act (51 of 1959 ). On 13/07/1960, the appellants submitted an application to the Deputy Commissioner of Sales Tax Bombay City Division, stating that they were carrying on business in "electrical goods and were also licensed electrical contractors", that they undertook contracts for electric fittings and the rates for the same according to the general practice in the business were consolidated rates for the materials consumed and labour charges involved in carrying out the contracts, that a question had arisen whether thevalue of the materials consumed in carrying out the contracts for electric fittings is taxable under the Bombay Sales Tax Act (51 of 1959) and that they desired to obtain elucidation on the question whether they were liable to pay tax on the materials consumed in carrying out contracts for electric fittings. With the application they filed a copy of an invoice :

"bill No. 12

1. Supplying and fixing the materials of light points

complete with 1/8 CTS wire, brass clips,

tapes and all approved accessories. . .

2 Pts. Rs. 32. 00 2. Supplying and fixing 9" brass Swan type wall brackets with holders. . . 1 Pc. Rs. 1. 75 3. Supplying, wiring and fixing 40 K. W. 4 ft. tubes complete with Resmi choke, imported starters and Elora holders, etc. . . 5 Pc.

rs. 132. 50 Rs. 166. 25"

( 2 ) THE Deputy Commissioner rejected the contention of the appellants that the transaction evidenced by the invoice was an "indivisible works contract" and was not a contract for sale of goods. In the view of the Deputy Commissioner the contract evidenced by the invoice "clearly indicates that there were separate contracts, one for the sale of the materials in question, and another for carrying out job-work", and that part of the composite contract which consisted of supply of goods constituted a sale within the definition of that expression under the Act. He therefore determined that under clause (c) of Ss. (1) of section 52 of the Bombay Sales Tax Act, 1959, the transaction as evidenced by "bill No. 12, dated 3/05/1960" was a sale within the meaning of section 2 (28) of the Act.

( 3 ) IN appeal, the Sales Tax tribunal held that the invoice in question evidenced a single contract, that the parties did not intend that the goods should be sold as in the case of sale of chattels, and that the property in the goods passed only after the materials had been affixed to the building of the customer. The tribunal then drew, statement of the case under section 61 (1) of the Act and submit the following question of law for the opinion of the High Court Bombay:"whether the transaction represented, by the bill produced by the opponents amounts to a sale and whether the same is taxable under the provisions of the Sales Tax Act, 1959 ? "

( 4 ) THE High court was of the view that "the transaction of the respondent with its customer of the nature evidenced by" the invoice is not a "pure works contract", but a combination of two distinct and separate contracts: one for the supply or the sale of goods for consideration, and the other for supply of work and labour, and the part of the contract which consists of supply of goods for consideration is a sale as held by the Deputy Commissioner of Sales Tax. With special leave, the appellants have appealed to this court.

( 5 ) S. 52 (1) of the Sales Tax Act at the material time provided:-"if any question arises, otherwise than in proceedings before a court, or proceedings under section 33 or 35, whether for the purposes of this Act. . . . . . . . . . . . . . . (c) any transaction is a sale or purchase, or. . . . . . . . . . . . (e) any tax is payable in respect of any particular sale or purchase, or if tax is payable the rate thereof, the Commissioner shall make an order determining such question. "

( 6 ) ANY question whether of fact or of law, or of mixed law and fact