A contract for the supply and fixing of windows and doors at site is a works contract and not a contract for the sale of goods.

MODI, J.

( 1 ) THIS is a writ petition by Nenuram under Article 226 of the Constitution praying that the assessment order made by the Sales Tax Officer, Jodhpur, dated the 24th August, 1961, be quashed and that an appropriate direction or order be issued to him and the other respondents, namely, the State of Rajasthan and the Deputy commissioner (Appeals) Excise and Taxation, Jodhpur, restraining them from making any recovery from the petitioner in pursuance of it.

( 2 ) THE material facts are these. The petitioner is an approved contractor of the public Works Department of the State. In connection with the construction of a police lines building at Pali, the Chief Engineer of the State had invited tenders for supplying and fixing wooden windows and doors together with frames and painting them around April or May, 1959. The petitioners tender in which he quoted rates for joinery and painting work at 61/4 per cent and 10 per cent below the scheduled rates respectively was accepted, being the lowest. This acceptance was conveyed to him by the Executive Engineer, District Division (South) Public Works department (B and R) Jodhpur, by his letter No. 10924 dated the 17th July 1958 Ex. 1 wherein it was clearly mentioned that "the chokhats will have to be supplied and fixed at site along with the masonry work. " thereafter it appears to us that a formal agreement should normally have been executed between the petitioner and the department, but that has not been brought on the record. Apart from the letter of acceptance Ex. 1 to which we have made reference above, the petitioner has brought on this record a certified copy of the tender submitted by him, and which was accepted by the department, (Ex. 2), in which it has been mentioned that the contract was for joinery and painting work in connection with the construction of a police lines building at Pali and that the amount tendered by the petitioner for this entire work was Rupees 1,81,528. The assessee then filed a return for the assessment year 1959-60 and the Sales Tax officer eventually passed the assessment order Ex. 3 on the 24th August, 1961, which is impugned before us. By this assessment order, the Sales Tax Officer held that the total sales made by the petitioner during the assessment year 1959-60, the accounting year being 1-4-59 to 31-3-60 amounted to Rupees 1,97,212 as verified from the petitioners account-books. It was contended by the petitioner that the making of the doors and windows and frames was part of a single and indivisible works-contract inasmuch as the said articles were required thereunder not merely to be prepared and supplied but also fixed at site and consequently they were not taxable as sale of goods. The Sales Tax Officer repelled this contention and held that "looking to the books of accounts it is found that the price has been charged for Jories and Chokhats which are movable and taxable. In other words, sale of materials of Rs. 1,97,212. 00 was made. " He then assessed the petitioner to a total tax of Rs. 6314. 07 Paise on the above turnover at certain rates into which it is unnecessary to go for our present purpose and ordered that a demand notice be issued against the petitioner for the aforesaid amount.

( 3 ) AGGRIEVED by this order, the petitioner preferred an appeal to the Deputy commissioner, Excise and Taxation (Appeals) Jodhpur. He also moved an application under the second proviso to Section 13 (1) of the Rajasthan Sales Tax act, 1954 (Act No. XXIX of 1954, hereinafter called the Act) which has since been repealed for permission to file an appeal without depositing the tax. This prayer was rejected by the Deputy Commissioner and consequently the appeal was dismissed by an order dated the 28th February, 1962. Thereafter the petitioner again moved an application before that very authority for restoring the appeal but that application was also rejected on the 19th September, 1962. It is in these circumstances that the petitioner fi