- (1.) THIS revision petition arises out of the order passed by the Deputy Commissioner, Excise & Taxation (Appeals) Jaipur dated the 3rd April, 1961 rejecting the petitioner's appeal against the assessment of the sales-tax made by the Sales Tax Officer for the petitioner's firm for the assessment year 1957-58.
(2.) THE only contention of the counsel for the petitioner was that the petitioner's firm was supplying sanitary materials and also took contracts for providing and fixing sanitary materials at a particular place or in a particular building. THE major turn over of the petitioner's firm was from the contracts made between the petitioner's firm and the parties for providing and fixing sanitary materials on their premises. THE counsel exhibited printed forms on the basis of which the contracts were entered into between the firm and the parties indicating the rates of each job including the price of the sanitary materials. He therefore, argued that on the authority of the principle laid down by the Supreme Court in the State of Madras Vs. Gaunlu Danerly & Co. relating to building contracts the petitioners were wrongly assessed to sales tax on the turn over earned by the petitioner from such contracts. THE Government Advocate pointed out that the principle of State of Madras Vs. Ganoun Danerly & Co. did not apply to this case and the contract for providing and fixing was divisible. In fact, there were two contracts. One for sale of material and the other for labour charges. THE petitioner's firm when called upon to supply the labour charges filed a list of those charges and hence the entire goods supplied by the petitioner's firm were properly taxed. He further pointed out that this Board has also applied the principle in the decision of the State of Madras Vs. Bannou Danderly & Co. in a case recently disposed of by this Board known as Man Industrial Corporation Vs. THE State of Rajasthan. We have considered the arguments advanced and examined the record. The question before us is whether the contracts entered into by the petitioners on the basis of the printed forms are divisible contracts or they are non divisible ones and whether goods supplied by the contractors for purpose of fixing them on the premises could be considered as sale of goods and the property in these goods passed to the other party as movable or only after such goods were fixed to the premises as immovables. There is no doubt that the leading case of State of Madras Vs. Gaunon Danderly & Co. as decided by the Supreme Court is an authority on the matters of building contracts. The Board of Revenue in the case of Man Industrial Corporation Vs. The State of Rajasthan have held that the providing and fixing of steel windows was a dividable contract and not a building contract, as laid down in State of Madras Vs. Gaunon Dankerly & Co. The goods supplied under that contract were considered as sold as movables and were thus taxable. However, in a reference before the High Court under sec. 15 of the Rajasthan Sales Tax, 1954 a different view was taken by the Division Bench wherein it was opined that under a contract of providing and fixing of windows, the goods could not be sold as movables and no title passed to the buyer as such but only after the contract was completed, the ownership in the goods passed to the buyer as the movables and there was no sale of goods which could be taxed under the sale of goods Act. This case in our view is quite different from the case of Man Industrial Corporation Vs. The State of Rajasthan and here the contract entered into by the petitioner' firm cannot be said to be complete until the goods are fixed and inspected by the petitioners firm. Then alone the property in the goods passed to the other party to the contract and not before,when the property passes the goods are no longer movables and there could be no sale of such goods as movables. We, therefore, accept this revision petition of the petitioner, set aside the order of the Deputy Commissioner Excise & Taxation as well as the Sales Tax Officer and remand this case with the direction that the entire turn over which accrued to the petitioner is a result of the contract entered into by them for providing and fixing the sanitary ware on the premises should not be taxed. .;