TMI Blog1963 (7) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... air-conditioning equipment, together with all materials and parts which were to be found and supplied by the assessees themselves. There was no element of sale of goods, according to the Tribunal in these contracts as they were in fact and in substance agreements to execute works for a stated consideration. The question of law that is raised is whether the turnover represents in part sale of goods and whether that part can be subjected to tax under the Act. The assessees are dealers in medicines, chemicals, typewriters, tractors and other articles and they are also engaged in the business of equipping buildings with air-conditioning plants. They undertake to do the work on a lump sum basis for which details showing the cost of plant and accessory materials, labour charges and other miscellaneous expenses are given. The break-up of the turnover of Rs. 98,518 is as detailed below: T.O. for the periods Contract amount Name of the party Nature of contract Rs. A.P. 4,130 5,218 15-0 1. Indian Airlines Corporation. False ceiling, wiring and pipe laying. 5,138 7,580 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with the United Life Assurance Company goods of the value of Rs. 5,275 were sold. What is stressed on behalf of the State therefore is that it would not be a proper interpretation of the contracts involved in the case now forming the subject-matter of revision to hold that they were composite contracts not capable of being divided or split up into contracts of sale of goods and contracts to execute the necessary works. The principles which should govern the determination of the question whether a transaction is a heterogeneous product of sale of goods coupled with execution of works or whether it is a homogeneous combination of these factors which is impossible of dissection and which presents in an overall view a contract of execution of a job or work, are not now left in obscurity. The acid test is as laid down by the Supreme Court in Carl Still G.m.b.H. Another v. State of Bihar[1961] 12 S.T.C. 449. : "Whether on its true construction, the contract in question is a combination of two distinct agreements, one to sell materials and the other to supply labour and services or whether it is only one agreement entire and indivisible for execution of the works." The approach to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore fail. Though this is sufficient to dispose of the revision petition, we have to consider and deal with two petitions filed by the State, T.C.M.P. No. 65 of 1961 for leave to file additional grounds and T.C.M.P. No. 88 of 1962 for excusing the delay in filing T.C.M.P. No. 65 of 1961. The additional grounds sought to be raised in T.C.M.P. No. 65 of 1961 relate to a turnover of Rs. 3,67,608-89 nP. which it is alleged has been wrongly excluded from taxation on the erroneous view that it represents sales in the course of import. The contention urged is that the documents of title pertaining to the goods were transferred after the arrival of the ship in the Madras Harbour when they were within the State territory and that the sales comprised in the turnover were purely local sales and should not be deemed to be part of the import activity. The order of the Tribunal is dated 12th August, 1960. T.C. No. 51 of 1961 which we have just now dealt with was filed on 27th October, 1960. That was preferred in time as the order of the Tribunal was communicated to the department on 7th September, 1960. The time prescribed by the Madras General Sales Tax Act, 1959, for preferring a revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w raised for decision by the High Court (here formulate the questions of law raised concisely, etc.)." There is a clear indication in the Act and the rules set out above that a memorandum of revision petition by the aggrieved party, whether it be the State or the assessee, is not a general challenge of all the adverse findings against the State or the assessee, but is only a limited attack in regard to the matters set out in columns 5 and 6 in Form VI. The scope of the revision petition is necessarily restricted to the questions raised in the memorandum. Where the order of the Tribunal deals with different sets of taxable turnovers, each independent of the other or others, it is open to the aggrieved party, the State or the assessee, to question one or more of the points decided adversely by filing a revision petition. Once a revision petition is filed and that embraces only some of the points decided against the petitioner, it would not be unjust or improper to infer that the petitioner has waived or abandoned his rights to challenge other portions of the impugned order which are against the party. In our opinion, there cannot be a challenge of a particular turnover not included i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials called for from the authorities below were awaited and all the grounds could not be raised in the memorandum of grounds at the first instance in the absence of those facts and materials. These materials have since been obtained and it is just and necessary that the petitioner should be allowed to raise the following additional grounds." Vagueness cannot go further. It is not disclosed what materials and facts were ascertained subsequent to the filing of the revision petition. It is not stated how these subsequently discovered materials were necessary to raise the new grounds now sought to be raised. Even assuming that the application is maintainable in law the Court has still a discretion in granting or refusing the permission sought for. The materials disclosed in the affidavit in support of the application are so slender and flimsy that we have no hesitation in holding that adequate grounds have not been made out for sustaining it. T.C.M.P. No. 88 of 1962 is indeed an extraordinary application. It purports to be under section 5 of the Indian Limitation Act. It is obvious that that provision of law has no application to a proceeding under the Sales Tax Act. If T.C.M.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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