B.N.SAPRU, J. - (1.) THESE sales tax revisions have been filed by the assessee and pertain to the years 1970 -71, 1971 -72, 1972 -73, 1973 -74, 1974 -75, 1975 -76 and 1976 -77.
(2.) THE assessee is a contractor and supplies stone ballasts to the Northern Railway. He made tenders for the supply of ballasts to the railways. The various tenders of the assessee were opened on 13th October, 1970, 23rd March, 1971, 24th September, 1971, 7th July, 1972, 9th March, 1973, 6th May, 1975, and 7th September, 1973. These tenders were accepted by the Railway Administiation and the assessee -made supplies. The railways paid the assessee for the work done by him. The Sales Tax Officer assessed the entire amount received by the assessee from the railways to sales tax. The assessee appealed. The assessee's appeal for the years 1970 -71, 1971 -72, 1973 -74, 1975 -76 and 1976 -77 were partly allowed by the Assistant Commissioner (Judicial) who held that the assessee was only liable to tax on the price of ballast supplied by him and not on the amount received by him towards the transport and other charges from the railways. However, for the assessment years 1972 -73 and 1974 -75, the assessee's appeal was dismissed by the Assistant Commissioner (Judicial), who upheld the order of the Sales Tax Officer. In respect of the assessment years 1972 -73 and 1974 -75, the assessee went up in appeal to the Sales Tax Tribunal, where as in respect of the other years, the department went up in appeal before the Sales Tax Tribunal. The Sales Tax Tribunal has allowed the appeals by the department and dismissed the appeals by the assessee. In these circumstances, the assessee has come in revision. Tenders had been invited by the Railway Administration. These tenders are in standard form. The tenders contained various clauses, including special conditions. Special conditions of clauses 28, 29 and 30 are reproduced below : 28. The rate quoted by the contractor/contractors should be an all inclusive through rate, i.e., the rate for the material delivered at site. No lead, lift, sales tax or royalty or any other taxes that may be levied by the Government or by the local bodies will be paid. They will also themselves arrange and pay for such working facilities as they may need (as land for labourers, camps, contractors' office, access road to the site of work, etc.). The contractors will be deemed to have included this element of cost, royalty or compensation in their through tender rate and will not be entitled to any extra payment. They are advised to see the site of work before tendering. 29. The contractor(s) is/are advised to bring only such materials to the site which conforms to the specification. Any material which falls short of the prescribed standard will be rejected and will have to be removed by the contractor(s) at his/their own expenses. It should be noted that all material will be passed at the site of delivery only and no passing will be carried out at the source or anywhere else. 30. If the supply is to be given from the private quarries the contractors shall have to make their own arrangements to procure ballast from the private quarries at their own expenses.
(3.) THE tender also contained clause 3 and clause 4, which are reproduced below : 3. Tender containing erasures and alterations of the lender documents are liable to be rejected. Any corrections made by the tender/tenders in his/ their entries must be attested by him/them. No correction of type script of tender form issued by the railway will be taken notice of. If the contractor wishes to stipulate any conditions of his own, he should state that in the covering letter of the tender. It should be noted however that the railway reserves the right not to consider such conditional tenders and to reject the same without assigning any reason. 4. Tenders will not add or delete any condition in the tender otherwise the tender will not be considered. If it is desired to state anything the same be done in the covering letter submitted with the tender, which will be deemed to be part of the contract only to the extent the same has been expressed accepted by the railway.;