Judgment

SHAH

( 1 ) M/s Hindustan Steel Ltd. , a Company incorporated under the Indian Companies Act, 1913 is a Government of India undertaking in the public sector. The Company is registered as a dealer under the Orissa Sales Tax Act (14 of 1947), from the last quarter ending March 1959.

( 2 ) BETWEEN 1954 and 1959 Company was erecting factory buildings for the steel plant, residential buildings for its employees and ancillary works such as roads, water supply, drainage. Some constructions were done departmentally and the rest through contractors. The Company supplied to the contractors for use in construction, bricks, coal, cement, steel, etc. , for consideration and adjusted the value of the goods supplied at the rates specified at the rates specified in the tender.

( 3 ) IN proceedings for assessment of tax under the Orissa Sales Tax Act, 1947, the Sales Tax Officer held that the Company was a dealer in building material, and had sold the material to contractors and was on that account liable to pay tax at the appropriate rates under the Orissa Sales Tax Act. The Sales Tax Officer directed the Company to pay tax due for ten quarters ending 31/12/1958, and penalty in addition to the tax for failure to register itself as a dealer. The Appellate Assistant Commissioner confirmed the order of the Sales Tax Officer. In second appeal the Tribunal agreed with the tax authorities and held that the Company was liable to pay tax on its turnover from bricks, cement and steel supplied to the contractors. The Tribunal however substantially reduced the penalty imposed upon the Company.

( 4 ) AT the instance of the Company the Tribunal referred six questions to the High Court of Orissa under S. 24 (1) of the Orissa Sales Tax Act, 1947. The questions were:

"a. Whether in the facts and circumstances of the case Messrs. Hindustan Steel Ltd. , can be held to be a dealer within the meaning of S. 2 (c) of the Orissa Sales Tax Act?

B. Whether the sale of materials by the Company to different contractors working for the company for which sales tax is sought to be assessed amounts to sale within the meaning of S. 2 (g) of the Act?

C. Whether the accrual of some profit in the absence of any motive to make such profit can make the assessee a dealer under the Act and whether in the circumstances of the case, the Tribunal was justified in coming to a finding that there was profit-making motive on the part of the Company?

D. Whether in view of the definition contained in S. 2, Clause (h) as it stood prior to the amendment of the provision by Act 18 of 1959, the supplies of materials can be treated as sale price in the hands of the assessee?

E. Whether in the facts and circumstances of the case, the amount received by the assessee in respect of tender forms can be said to be "sale price"?

F. Whether the Tribunal is right in holding that penalties under Section 12 (5) of the Act had been rightly levied and whether in view of the serious dispute of liability it cannot be said that there was sufficient cause for not applying for registration?"

THE High court answered the questions, A,b,c,d and F in the affirmative and question E in the negative.

( 5 ) IN these appeals filed with special leave substantially three matters fall to be determined:

1. Whether the Company sold building material to the contractors during the quarters in question?

2. Whether the Company was a dealer in respect of building material within the meaning of the Orissa Sales Tax Act?

3. Whether imposition of penalties for failure to register as a dealer was justified?

SOLUTION of the first and third matters does not present much difficulty. At the relevant time sale was defined by S. 2 (g) of the Orissa Sales Tax Act as follows:-

" "sale" means, with all its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuation consideration, including a transfer of property in goods involved in the execution of contract, but does not include