B. R. ARORA, J. - (1.) THESE two appeals are directed against the judgment dated April 22, 1992 passed by the learned single Judge, by which the learned single Judge dismissed the two writ petitions filed by the petitioner-appellant and held that the petitioner is a "dealer" as defined in section 2 (f) of the Rajasthan Sales Tax Act, 1954 and the transaction in question is a "contract for sale" which attracts the tax under the Act. As both these appeals arise out of the same judgment and raise the same controversy, they are, therefore, being disposed of by this common judgment.
(2.) THE brief facts of the case are that the appellant-assessee is a registered partnership-firm carrying on the business of bricks-kiln contracts. During the assessment years 1983-84, 1984-85, 1985-86 and 1986-87, the appellant entered into four contracts with Indira Gandhi Nahar Project of the Government of Rajasthan for the supply of the kiln-burn tiles of the size 30 cm x 15cm x 5cm and bricks of the size 232 cm x 11 cm x 5 cm at the site at the rates mentioned and on the terms and conditions set up in the contracts. THE appellant, on February 25, 1988 received a notice under section 12 of the Rajasthan Sales Tax Act (for short, "the Act") from the Assistant Commercial Taxes Officer, Hanumangarh for the assessment years 1983-84 and 1984-85. THE petitioner-appellant challenged these notices issued by the Assistant Commercial Taxes Officer, Hanumangarh, by way of filing S. B. Civil Writ Petition No. 605 of 1988 (Verma Construction Company v. State of Rajasthan ). THE petitioner-appellant, also, received a notice under section 12 of the Act on September 18, 1989 with respect to the assessment years 1985-86 and 1986-87 and challenging these notices he filed S. B. Civil Writ Petition No. 3943 of 1989 (Verma Construction Company v. State of Rajasthan ). Both the writ petitions were opposed by the respondents. The learned single Judge, by his judgment dated April 22, 1992, dismissed both the writ petitions and held that the petitioner-appellant is a "dealer" and the transaction of supplying the bricks and tiles constitute the "sale" which attracts the provisions of the Rajasthan Sales Tax Act, 1954. It is against this judgment dated April 22, 1992 that the appellant has preferred these two appeals. It is contended by the learned counsel for the appellant that the contract entered into by the petitioner-appellant with the respondents were the "labour contracts" for making the bricks from the materials supplied by the department. The property and all the materials supplied by the department always remained the property of the department and never vested with the appellant. Even the baked bricks, also, vested in the department and the bricks and the tiles which were not prepared as per the specification laid down, also, vested with the department and the department had right to allot such bricks to the appellant-petitioner on payment of the price fixed by the department. The contracts in question were, therefore, only for the work and labour and not for the supply or sale of the bricks and, therefore, the appellant cannot be termed as a "dealer" nor the transaction can be said to be a "sale". Learned counsel for the appellant, also, submitted that the learned single Judge was not justified in relying upon the judgment of this Court given in the case of Sunder Das Jindal and Company v. State of Rajasthan [1984] 56 STC 89 (Raj ). According to the learned counsel for the appellant, the terms and the conditions of the contracts, in the case of the appellant, were different from those of the conditions in Sunder Das Jindal & Co. 's case [1984] 56 STC 89 (Raj ). Learned counsel for the respondents, on the other hand, has supported the judgment passed by the learned single Judge and submitted that the appellant is a "dealer" within the meaning of section 2 (f) of the Act and the transactions in question were the "sale" exigible to tax and the learned single Judge was right in applying the ratio of Sunder Das Jindal & Co. 's case [1984] 56 STC 89 (Raj ). We have considered the submissions made by the learned counsel for the parties.
(3.) THE short question that arises for determination in these appeals is : whether the contract for the supply of bricks and tiles by the appellant to the Indira Gandhi Canal Project is a "contract for works and labour" or it is a "contract for sale" ? "sale" is a transfer of the ownership in a thing from one person to another for a money price by a mutual consent. To constitute "sale" there must be transfer of the title and possession of the property for a consideration, while in a "contract for work" there is no "sale" because the property did not pass for a price. The distinction between the "contract for the work and labour" and the "contract for sale" has been pointed out in Halsbury's Laws of England, Fourth Edition, Volume 41 (para 603 at page 557) in the following words : " A contract of sale of goods must be distinguished from a contract for work and labour. The distinction is often a fine one. A contract of sale is a contract the main object of which is the transfer of the property in, and the delivery of the possession of, a chattel as such to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of chattel as such, the contract is one for work and labour. The test is whether or not the work and the labour bestowed end in anything that can properly become the subject of sale. Neither the ownership of the materials nor the value of the skill and labour as compared with the value of the materials, is conclusive, although such matters may be taken into consideration in determining in the circumstances of a particular case whether the contract is in substance one for work and labour or one for the sale of a chattel. " Benjamin, in his book "treatise on the Law of Sale of Personal Property" with Reference to the French Code and Civil Law, at page 190, laid down the following propositions to differentiate between a "contract for sale" and a "contract for work" : " (1) A contract whereby a chattel is to be made and affixed by the workman to land or to another chattel before the property therein is to pass, is not a contract of sale, but a contract for work, labour and materials, for the contract does not contemplate the delivery of a chattel as such. (2) When a chattel is to be made and ultimately delivered by a workman to his employer, the question whether the contract is one of sale or of a bailment for work to be done depends upon whether previously to the completion of the chattel the property in its materials was vested in the workman or in his employer. (3) Accordingly, (i) Where the employer delivers to workman either all or the principal materials of chattel on which the workman agrees to do work, there is a bailment by the employer, and a contract for work and labour, or for work, labour and materials (as the case may be), by the workman. Materials added by the workman, on being affixed to or blended with the employer's materials, thereupon vest in the employer by accession, and not under any contract of sale. (ii) Where the workman supplies either all or the principal materials, the contract is a contract of sale of the completed chattel, and any materials supplied by the employer when added to the workman's materials vest in the workman by accession. (4 ). . . . . . . . . . . . . . . . . " ;