1988 (10) TMI 106 - SC - VAT and Sales Tax

Whether the petitioner can be said to have effected entry of the goods in the local area and thereby made it liable for payment of entry tax under section 3 of the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam 1976? Held that - The costs of materials so supplied and consumed in the construction work have been deducted from the final bill of the petitioner showing that there was sale of those materials. If the department had not supplied those materials the petitioner would have purchased the same from the market. This also is clear from the explanation (a)(ii) to definition of sale in section 2(n) of Madhya Pradesh General Sales Tax Act providing that notwithstanding anything contained in the Indian Sale of Goods Act 1930 a sale or purchase of goods shall be deemed for the purposes of this Act to have taken place in the State wherever the contract of sale or purchase might have been made if the goods are within State and in the case of unascertained or future goods at the time of their appropriation to the contract of sale or purchase by the seller or by the purchaser whether the assent of the other party is prior or subsequent to such appropriation of contract of sale.

Summary

Issues Involved:
1. Liability for payment of entry tax under Section 3 of the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976.
2. Whether the supply of iron, steel, and cement by the Public Works Department (PWD) to the petitioner constituted a "sale" under the Madhya Pradesh General Sales Tax Act.
3. Applicability of Section 6(c) of the Entry Tax Act.
4. Applicability of Section 13 of the Entry Tax Act.
5. Interpretation of Clause 10 of the Contract Agreement.

Issue-wise Detailed Analysis:

1. Liability for Payment of Entry Tax:
The primary issue was whether the petitioner could be said to have effected the entry of goods into the local area, thereby making it liable for payment of entry tax under Section 3 of the Entry Tax Act. The Full Bench of the Madhya Pradesh High Court found that the petitioner was liable for entry tax because the materials (iron, steel, and cement) supplied by the PWD were used by the petitioner in the construction work. The court held that the entry of these materials into the local area was effected at the instance of the petitioner, who ultimately used the materials for construction. This interpretation was upheld by the Supreme Court.

2. Whether the Supply Constituted a "Sale":
The petitioner contended that there was no sale of materials by the PWD, as the materials remained the property of the government until consumed in the construction work. However, the court found that under Clause 10 of the contract, once the materials were consumed in the construction work, the property in the materials passed to the contractor, thereby constituting a sale. The court noted that the costs of the materials supplied and consumed were deducted from the petitioner's final bill, indicating a sale transaction.

3. Applicability of Section 6(c) of the Entry Tax Act:
Section 6(c) presumes that when a dealer purchases goods specified in Schedules II and III from a person or dealer who is not a registered dealer, the entry of such goods into the local area is effected by the dealer. The court found that since the PWD was not a registered dealer, this presumption applied to the petitioner. The petitioner conceded this point, and the court held that the petitioner was liable for entry tax under this section.

4. Applicability of Section 13 of the Entry Tax Act:
Section 13 of the Entry Tax Act makes certain provisions of the Madhya Pradesh General Sales Tax Act applicable to entry tax. The court found that if the supply of materials by the PWD constituted a sale under Section 2(n) of the Madhya Pradesh General Sales Tax Act, then the petitioner would be liable for entry tax. The court concluded that there was indeed a sale, and thus, the petitioner was liable for entry tax.

5. Interpretation of Clause 10 of the Contract Agreement:
Clause 10 of the contract stated that all materials supplied to the contractor would remain the absolute property of the government until used in the construction work. The court interpreted this clause to mean that the property in the materials passed to the contractor once they were consumed in the construction work. The court noted that this clause was intended to prevent pilferage and ensure the materials were used solely for the construction work. The deduction of material costs from the final bill further indicated that a sale had occurred.

Conclusion:
The Supreme Court upheld the Full Bench's decision that the petitioner was liable for entry tax on the materials supplied by the PWD. The court found that the supply of materials constituted a sale and that the entry of these materials into the local area was effected by the petitioner. The appeal was dismissed, and the petitioner was held liable for the assessed entry tax.