S.J.MUKHOPADHAYA,J. - (1.) AS all the writ applications have been preferred by common petitioner and common question of law is involved, they were heard together and are disposed of by this common judgment.
(2.) THE petitioner, a registered partnership firm, obtained one work order for construction of Ajoy Barrage from the then State of Bihar in pursuance of tender notice No. 1189 dated September 14, 1988 and executed an agreement with the State of Bihar No. 1-LCV/89-90. The petitioner completed the job and handed over the barrage to the State Government. The Assistant Commissioner, Commercial Taxes Department, Deoghar Circle, Deoghar, subsequently assessed the tax in the execution of "works contract" for the periods 1990-91, 1991-92 and 1992-93 and asked the petitioner to pay it. These orders issued by the Assistant Commissioner, Commercial Taxes Department, Deoghar Circle, Deoghar for three financial years have been challenged by the petitioner in three separate writ petitions. Counsel for the petitioner made following submission to challenge the orders and in support of petitioner's claim : " (1) Transfer of property in goods is an essential ingredient for constituting "sale", in absence of which, a transaction cannot be deemed to be a "sale" and no sales tax can be levied on such transaction. (2) As per law, levy of sales tax in respect of the works contract can be made at the point of time when the goods are incorporated and used in the construction of the structure, etc. , as transfer of property in goods only takes place at that point of time. There is no subsequent transfer of property, nor "sale" takes place at the time of handing over of completed job to the Government. (3) Transfer of property in goods in respect to materials supplied by the department to the contractor as well as transfer of property in goods from the contractor to the department passed only at one point of time when goods are incorporated or used in the construction, etc. Therefore, there being one transaction and the Government department being the owner of the material supplied by it to the contractor without any break of ownership, no second transfer of property takes place at the time of handing over of structures, materials, etc. (4) In view of specific terms and conditions as agreed upon between the petitioner and the Government department, incorporated in the agreement, no transfer of property of goods had taken place when the goods were handed over by the Government department to the petitioner or constructed structure works is handed over by petitioner (contractor) to the Government. (5) Under the facts and circumstances of the present case, the position of the petitioner (contractor) is that of a bailee and/or trustee in respect of the goods supplied to it for using the same in the works contract, specially because the petitioner (contractor) never became the owner of those goods as those goods were never transferred. (6) Admittedly, the Government department has purchased iron, steel and cement material under section 13 (1) (g) of the Bihar Finance Act, 1981 on payment of concessional sales tax for the purpose of Government use, as such the department cannot sell those materials. (7) Iron, steel and cement being taxable at one point of time, at the time of first sale, under the provisions of the Bihar Finance Act, 1981, the Government department being the first purchaser and the department paid sales tax under section 13 (1) (g) of the Act, 1981. Therefore, those materials, such as iron, steel and cement cannot be subjected to further sales tax. (8) Under section 13 (1) (g) of the Bihar Finance Act, 1981, the Government department being liable to pay sales tax at the rate of 3 per cent irrespective of higher rate of sales tax otherwise applicable on such sales, levy of sales tax at the rate of 11 per cent in respect of cement, as imposed is illegal. (9) The assessing officer should have given reasonable opportunity to the petitioner to procure and submit forms IXC and IXA and the State Government should have provided such form to the petitioner. "
(3.) COUNSEL for the State submitted that the State Government has levied sales tax on the price of goods and materials used in works contract, there being a deemed sale of such goods and materials, which the petitioner purchased from the Government department.;