- (1.) THE petitioner is a company incorporated under the Indian Companies Act is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter called the "Act"). It carries on business inter alia as builders and contractors. It has been regularly submitting returns as required under the provisions of the said Act. For the Bengali year 1357 (corresponding to the period April, 1950, to April, 1951) the petitioner company submitted returns and paid sales tax to the extent of Rs. 3,568-4-0. On 11th May, 1954, the respondent No. as the Commercial Tax Officer made an assessment for the year 1357 holding that the petitioner was liable to pay a tax of Rs. 15,756-1-0 and also imposed penalty of Rs. 2,000 upon the petitioner.
(2.) FOR the Bengali year 1358 (April, 1951, to April, 1952), the petitioner likewise submitted returns and paid sales tax to the extent of Rs. 1,200-8-3 for the first quarter, Rs. 4,798-1-0 for the second quarter and a further payment of Rs. 354-9-0. On 24th November, 1954, the respondent No. 2 as the Commercial Tax Officer made an assessment in respect of the Bengali year 1358 holding that the petitioner was liable to pay a tax of Rs. 39,182-9-0. He also imposed a penalty of Rs. 1,000 upon the petitioner. Against both orders of assessment the petitioner has filed appeals to the Assistant Commissioner, Commercial Taxes. In spite of the appeals being pending the respondents have proceeded under the Public Demands Recovery Act and a certificate has been filed in respect of Rs. 14,187-13-0 said to be due on the basis of the assessment order dated 11th May, 1954, and this certificate is being enforced against the petitioner. This Rule has been issued on 22nd February, 1955, upon the respondents to show cause why an order in the nature of a writ of certiorari should not be made quashing the assessment orders dated 11th May, 1954, and 24th November, 1954, mentioned above, and why an order in the nature of a writ of certiorari should not be made quashing the certificate filed in the office of the certificate officer of 24 Perganas mentioned in the petition, and why the respondents should not be prohibited from taking any further steps under the said assessment orders and/or the said certificate and/or why the respondents should not be ordered to deal with the assessment of the petitioner for the Bengali years 1357 and 1358 in accordance with law. I might mention here that the Rule also asked for certain reliefs in respect of the declaration forms but that has not been pressed. The objection of the petitioner to the assessment orders mentioned above arises in the following way. As stated above, the petitioner is a builder and contractor. As such builder and contractor it entered into the following contracts of building and repairs :- (1) On or about 5th December, 1947, the petitioner entered into a contract of repairs with the official receiver appointed as receiver in Suit No. 534 of 1932 (Sri Sri Iswar Gopinath Jiew v. Krishna Kumar Sett). This contract related to repairs of certain old buildings in the possession of the official receiver and certain moneys were received in respect thereof during the relevant period and entered under the heading "Building Repair Accounts" in the petitioner's ledger. (2) Sometime in 1948, the petitioner entered into a contract with the Union of India for carrying out the work of construction of 198 unit of 'B' type quarters and 94 units of 'A' type quarters at Kharagpur for the then Bengal Nagpur Railway. (3) On or about 7th April, 1951, the petitioner entered into a contract with the Union of India for executing certain concrete works in connection with the structures built for the Bank and City Telephone Exchange at Dalhousie Square, Calcutta. (4) On or about 16th May, 1951, the petitioner entered into a contract with the Commissioners for the Port of Calcutta for the purpose of contracting certain buildings at Kidderpore. The said works are referred to as the "Kidderpore Works" in the petitioner's ledger. (5) On 27th September, 1951, the petitioner entered into a contract with the Union of India for certain superstructual works in connection with the said Bank and City Telephone Exchange.
(3.) THESE contracts were all contracts for construction of structures or for repairs of structures. In contract No. (1) mentioned above, the petitioner had to supply the materials. In contract No. (2), the Union of India was to supply a number of materials, the remaining materials being supplied by the petitioner. The contract itself requires the contractor to undertake works like filling earth, carting cinders, laying boulders, excavating cinders, cleaning certain stores etc. In contract No. (3), the Union of India was to supply the necessary bricks, cement, steel etc., while the contractor was to supply sand, gravel etc. In contract No. (4) the Commissioners of the Port of Calcutta were to supply certain materials the remainder being supplied by the contractor. In contract No. (5) the Union of India was to supply cement, steel, bricks etc., while the contractor was to supply sand, lime etc. In all these contracts, the contractor, besides supplying materials, was to supply work and labour. In the petitioner's books, the contract No. (1) is entered under the heading "Building Repair Accounts"; contract No. (2) is entered under the heading "Kharagpur Works"; contracts Nos. (3) and (5) are entered under the heading "Bank City Concrete Works" and contract No. 4 is entered under the heading "Kidderpore Works, Calcutta Port Commissioners". The bricks required for the above constructions and repairs are entered under the heading "Brickfield Job Account". The Commercial Tax Officer has considered all the materials supplied for the purposes of construction and/or repairs by the petitioner, as sale of goods. In the assessment order dated 24th November, 1954, he has specifically held that the petitioner was liable to pay tax on the following sums appearing in the ledger of the petitioner under the following heads :- "Kharagpur Works" Rs. 1,15,713-3-0 "Building Repair Accounts" " 10,466-1-9 "Bank City Concrete Works" " 7,06,756-3-0 "Kidderpore Works" (Calcutta Port Commissioners) " 7,431-4-0 "Brick-field job account" " 2,00,174-5-0 -------------- Rs. 12,99,225-0-9. --------------;