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Rajasthan High Court
Modi & Tyagi, JJ.
Nenuram - Appellant
Versus
State of Rajasthan - Respondents
D.B. Civil Writ Petition No. 23 of 1963
Decided On : July 29, 1966
While it is not the duty or the function of the High Courts to act as appellate or revisional authorities in matter of taxation and entertain petitions under Art. 226 too readily after an assessment order has been made and such interference would certainly be undesirable where the question of taxability would depend upon a precise determination of certain questions of mixed law and fact and where some of the facts may not be available to the High Court at the time its intervention is sought and therefore the normal course in such cases can only be for the aggrieved party to exhaust his remedies under the Act and then seek relief in the exercise of writ jurisdiction in the High Court, still this cannot be accepted as an inflexible view which must be followed with rigidity in every case and exceptional cases do occur where the very constitutionality of a taxing statute comes to be attacked or where the action taken by the taxation authority under a particular enactment suffers from a patent lack of jurisdiction or again where the tax sought to be levied and recovered from the assessee, it is alleged not without justification, is wholly unlawful or without authority of law and where therefore the fundamental right of a citizen to carry on his trade or profession or to hold or own his property is clearly jeopardised under Art. 19 of the Constitution and in such cases it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons. (Para 19)
There could be no sale of goods within the meaning of the Act untill the wooden windows and doors were fastened on the spot because the contract was not merely to make certain materials but to fix them, and, untill they were so fixed, the property in the goods would not pass. Nor could there he any sale of goods after the windows and the doors had been fixed on the spot. The reason is that when they were so fixed, they became an accretion to the building and the ownership thereof vested in the employer, not as a result of the contract but as the owner of the land. There were no goods which could become the subject-matter of sale at that stage within the meaning of the Sale of Goods Act. (Paras 30 and 31)
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, 1958. The petitioners tenders in which he quoted rates for joinery and painting work at 6-1/4 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. & 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 construc-tion of a police lines building at Pali and that the amount tendered by the petitioner for this entire work was Rs.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 Rs. 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 re- pelled this contention and held that "looking to the books of accounts it is found that the price has been charged for Jories and Chokhates 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 turn over 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 sec. 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 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 12th September, 1962. It is in these circumstances that the petitioner filed the present writ application bef
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