R.L. Gulati, J.
1. This is a petition under Article 226 of the Constitution. The petitioner is a partnership firm which carries on business of automobile engineers and of running a service station and a workshop at Lucknow in the firm name of M/s. Bajoria Halwasiya Service Station. On 12th March, 1968, the petitioner entered into a contract with the Deputy Director of Agriculture, U.P., to fabricate and supply two steel bus bodies on chassis to be supplied by the Deputy Director for a lump sum of Rs. 4,100 plus sales tax for each bus body. The bus bodies were to be manufactured in accordance with the specifications and with the materials specified in the memorandum of specifications annexed to the agreement. The bus bodies were also required to be fitted with certain accessories like number plates, reflectors, light and electric bells, water-proof tarpaulins etc. The contract was to be executed by a specified date and the payment was to be made to the petitioner after a certificate of fitness had been furnished from the transport department of the Government.
2. In due course the petitioner executed the contract and received payment under it. The petitioner also deposited a certain amount by way of sales tax.
3. When the proceedings for assessment under the U.P. Sales Tax Act for the assessment year 1967-68 commenced the petitioner claimed exemption from tax in respect of the payment received by it from the Deputy Director on the ground that the contract executed by it was a contract of work and labour not involving sale of any goods. This contention was not accepted by the Sales Tax Officer, who levied tax on the turnover representing the sale proceeds of the bus bodies at the rate of 10 per cent, treating the bus bodies to be taxable at a single point under a notification issued under Section 3-A of the Act. The petitioner has challenged the assessment order in this writ petition on various grounds.
4. The first ground upon which the assessment order has been challenged is that the contract under which the petitioner received the payment in dispute was a contract of work and labour and not a contract for the sale or supply of any goods and as such the U.P. Sales Tax Act had no application. The next contention is that the bus bodies are not covered by the relevant notification and the last contention is that the notification itself is ultra vires being outside the scope of Section 3-A of the Act.
5. Taking up the first ground it may be stated at the outset that the question as to whether a particular contract is a contract of work and labour or a contract of sale of goods depends entirely upon the intention of the parties to be gathered from the terms of the contract. There is no universal test applicable to all cases. This proposition is settled beyond dispute by two recent decisions of the Supreme Court both reported in 16 S.T.C., viz., Patnaik and Company v. State of Orissa [1965] 16 S.T.C. 364 and McKenzies Ltd. v. The State of Maharashtra [1965] 16 S.T.C. 518.
6. Both these cases deal with the fabrication and supply of bus bodies. The leading case is that of Patnaik and Company [1965] 16 S.T.C. 364. In that case the petitioner had entered into a contract with the Government for the fabrication and supply of certain bus bodies to the Government on the chassis to be supplied by the latter. There also the bus bodies were to be fabricated according to the specifications and with the material specified in the contract and were also to be fitted with certain accessories and the bus bodies were to be delivered within a specified time. While dealing with the argument like the one put forward before us by the learned counsel for the petitioner the Supreme Court at page 373 observed:
Mr. Viswanatha Sastri, the learned counsel for the appellant, has addressed an elaborate argument to us and contended that the present case is not distinguishable from the decision of this court in Gannon Dunkerley's case [1958] 9 S.T.C. 353. He has cited a number of authorities in support of his contention, but it will not be necessary to review all these authorities as we feel that the answer to the question referred must depend on the construction of the agreement regarding the building of bus bodies. As laid down by this court in Chandra Bhan Gosain v. The State of Orissa [1963] 14 S.T.C. 766, 'was it the intention of the parties in making the contract that a chattel should be produced and transferred as a chattel for a consideration.'
7. The Supreme Court then proceeded to examine the terms of the contract and came to the conclusion that the contract was one for the sale of goods. The main considerations which prevailed with the Supreme Court may be briefly summarised thus:
(i) That the bus bodies were throughout the contract spoken of as a unit or as a composite thing to be put on the chassis and composite bodies consisted not only of things actually fixed on the chassis but movable things like seat cushions' and other accessories though fixed but which. could be very easily detached, for example, roof lamps, wind-screen wipers, luggage carrier, tool box etc.,
(ii) that the property in the bus bodies did not pass to the Government till the chassis with the bus bodies fitted thereon had been delivered to the Government and
(iii) that the contract for the sale of bus bodies did not become a contract for work and labour merely because the bus bodies were to be fitted upon the chassis supplied by the Government.
8. The second case of McKenzies Ltd. [1965] 16 S.T.C. 518 was also of the same nature and the Supreme Court merely followed its decision in Patnaik's case [1965] 16 S.T.C. 364.
9. Now reverting to the facts of the present case, we find that there was a written contract between the parties with regard to the fabrication and supply of the bus bodies to which is annexed a separate note embodying specifications. As per the terms of the agreement the bus bodies were spoken of as units to be fabricated in accordance with the prescribed specifications along with certain accessories and were to be delivered on or before 31st March, 1968. The petitioner was to take delivery of the chassis from the Deputy Director and was to ensure that no defect arose in them during the period that they remained in the custody of the petitioner. The payment for the bus bodies was to be made to the petitioner after the petitioner had furnished a certificate from the transport department by 27th March, 1968, failing which the payment was to be postponed to the following year. The petitioner was to furnish a security of Rs. 500 to be released after six months from the date the vehicles duly fitted with bodies were returned to the Deputy Director and finally the non of the conditions of the contract were to render the contract as ultra vires, null and void.
10. We find no material difference between the terms of the contract in the present case and those in the contracts in the two Supreme Court cases cited above. In other words, the instant case, in our judgment, is completely covered by the decision of the Supreme Court in the cases of Patnaik & Co. [1965] 16 S.T.C. 364 and McKenzies Ltd. [1965] 16 S.T.C. 518. We have, therefore, no hesitation in holding that the contract between the petitioner and the Deputy Director under which the petitioner received the disputed payment was a contract for the supply and sale of bus bodies and the sale proceeds were accordingly liable to tax.
11. Sri Raja Ram Agarwal, learned counsel for the petitioner, was at great pains to distinguish the Supreme Court cases and relied upon a large number of cases including two unreported decisions of the Supreme Court. One of such cases is that of State of Rajasthan v. Man Industrial Corporation Ltd. Civil Appeal No. 812 of 1966 decided on February 4, 1969; since reported at [1969] 24 S.T.C. 349. In that case the assessee had entered into a contract with the Executive Engineer, Ajmer Division, for providing and fixing to the Accountant-General's office, Jaipur, steel windows of different types and sizes in accordance with the specifications, designs, drawings and instructions. On a consideration of the terms and conditions of the contract, the Supreme Court came to the conclusion that the contract was a composite one not capable of being split into two separate contracts, one for the sale of windows and the other for the fixing of the windows to the buildings. In other words, the contract was held to be contract of work and labour. The cases of Patnaik & Co. [1965] 16 S.T.C. 364 and McKenzies Ltd. [1965] 16 S.T.C. 518 were distinguished by the Supreme Court in the following words :
But in both these cases the court held on a consideration of the terms of the contract and the circumstances that the assessees had agreed to and did supply 'motor-bus bodies' and the contract, being one for sale of chattels, they were liable to pay sales tax.
12. The learned counsel then placed reliance upon another case of Supreme Court in State of Rajasthan and Ors. v. Shri Nenu Ram Civil Appeal No. 1096 of 1967 decided on July 31, 1969. That was also a case involving a contract for supplying and fixing of wooden windows and doors together with frames in a police lines building. In this case the Supreme Court followed its decision in the case of State of Rajasthan v. Man Industrial Corporation Ltd. [1969] 24 S.T.C. 349 and held on a consideration of the terms and conditions of the contract that the contract was of work and labour.
13. A reading of these two cases does not show that the Supreme Court in any way has modified its view expressed in Patnaik's case [1965] 16 S.T.C. 364. In fact the tests laid down in Patnaik's case [1965] 16 S.T.C. 364 have been applied in these two subsequent cases.
14. The State of Gujarat v. Kailash Engineering Co. (Pvt.) Ltd. [1967] 19 S.T.C. 13 was the next case upon which the learned counsel for the petitioner placed reliance. That was the case of an engineering concern which had entered into a contract with the Western Railway Administration to build railway coaches on underframes to be supplied by the railway. According to the terms of the contract in that case, the railway coaches were to be built in the railway yard provided by the railway and the plant and materials brought by the assessee on the site of the work were immediately to vest in the railway administration. The coaches were not separately described as units or components to be supplied by the assessee and the duty of the assessee was described throughout in the contract to be that of constructing, erecting and furnishing coach bodies on the underframes supplied. At no stage did the contract mention that ready coach bodies were to be delivered by the assessee to the railway. In fact from the earliest stage during the process of construction of the coaches the unfinished coaches in the process of erection were treated under the terms of the contract as the property of the railway. The assessee was made liable under the contract to reimburse the railway for loss by fire, etc., to the underframes or to the materials brought on the site or used in the construction. In other words, the assessee was not the owner of the ready-made coaches, property in which vested in the railway during the process of construction and did not pass to the railway administration as a result of any sale. On these terms the Supreme Court held that the contract was of work and labour. This case is clearly distinguishable from the case of Patnaik & Co. [1965] 16 S.T.C. 364 and has in fact been so distinguished by the Supreme Court at considerable length in the body of the judgment. A similar distinction has been brought out by this court in the two types of contracts in Commissioner of Sales Tax v. Noorullah Ghazanffurullah S.T.R. No. 268 of 1966 decided on February 10, 1969; reported at page 100 supra.
15. Now turning to the second contention it would be pertinent to mention that the charging section is Section 3 under which turnover of all commodities is taxable at the rate specified therein at all points of sale. That rate at the material time was 2 per cent. In exercise of the power conferred upon it under Section 3-A of the Act, the State Government issued Notification No. ST-1738/X-1012-1963 dated 1st June, 1963, declaring the turnover of certain commodities mentioned therein to be taxable at a single point in the series of sales at the rate of 10 per cent. Item No. 10 of that notification relates to motor vehicles and their parts and reads as follows :
10. Motor vehicles including chassis of motor vehicles, motor tyres and tubes and spare parts of motor vehicles, not being such parts as are ordinarily also used for purposes other than as parts of motor vehicles.
16. By a subsequent notification No. ST-2263/X-950(l)-64 dated 18th June, 1965, item No. 10 of the notification of 1st June, 1963, was amended to read as under :
10. Motor tyres and tubes and spare parts of motor vehicles, not being such parts as are ordinarily also used for purposes other than as parts of motor vehicles.
17. We are concerned in the instant case with this amended notification. Now the turnover of bus bodies can be taxed under this notification only if a bus body is one of the items mentioned in the amended item No. 10 quoted above. A bus body is obviously neither a motor tyre nor a tube and it can fall under the notification only if it can be called a spare part of a motor vehicle. In the popular sense the term 'spare part', when used with reference to motor vehicles is a duplicate part of a motor vehicle kept in readiness to replace loss or breakage, etc. By no stretch of imagination can a bus body be called a spare part in that sense. It is a matter of common knowledge that bus bodies are to be fabricated and constructed when needed and they are not available in the market as such. We are, therefore, clearly of opinion that the bus bodies in dispute could not be comprehended in the relevant notification and the petitioner is plainly right when he says that the payment received by it on account of the supply of bus bodies has been wrongly taxed at 10 per cent.
18. Sri V.K. Mehrotra, learned standing counsel appearing for the opposite parties, has placed reliance upon Commissioner of Sales Tax, U.P., Lucknow v. Pritam Singh [1968] 22 S.T.C. 414, a decision of a Division Bench of this court of which one of us was a member. There the court had to interpret an earlier notification relating to motor vehicles being Notification No. ST-905/X dated 31st March, 1956, item No. 24 whereof included, among other things, 'component parts of motor vehicles.' This court held that the body of a motor vehicle was a component part thereof. A component part of a vehicle obviously is not the same thing as a spare part of a vehicle and the learned counsel, therefore, can derive no assistance from that case.
19. This being the situation the assessment order impugned in this petition suffers clearly from a patent illegality, based as it is upon the notification of 1st June, 1963, as amended by the notification of 18th June, 1965. The assessment order is, therefore, liable to be quashed by a writ of certiorari.
20. As the petition succeeds on this ground, it is not necessary to adjudicate upon the third contention of the learned counsel for the petitioner that the impugned notification is ultra vires being beyond the scope of Section 3-A of the Act. We, therefore, express no opinion on that point.
21. In the result, the petition succeeds and is allowed. A writ of certiorari shall issue to quash the assessment order of 29th January, 1969, relating to the assessment year 1967-68, a copy whereof has been annexed to the petition as annexure 7. The petitioner is entitled to its costs.