M S MYLSWAMY Vs. STATE OF MADRAS

JUDGEMENT

(1.) THE question involved in both these cases is the same and therefore they are dealt with together. THE assessee is the same in both the cases. THE first case relates to the assessment year 1963-64 and the second case relates to the assessment year 1964-65. THE transactions involved are identical. THE assessee entered into a contract with the public works department to supply sand at the rate of Rs. 75 per 100 c. ft. THE total amounts received by the assessee in the two years in question towards the supply of sand from the public works department have been assessed to sales tax on the basis that there has been a sale of sand by the assessee to the department. THE assessee contended right through that the supply of sand was execution of a works contract and that there is no sale of sand as such in the transactions involved in these two cases. THE sales tax authorities as well as the Tribunal held that a contract for sale of sand was entered into by the assessee with the department and that it is not a works contract in the course of which the supply of sand came to be made.

(2.) BEFORE us, the assessee seeks to question the correctness of the view taken by the department as well as the Tribunal. When the cases were taken up, the learned counsel for the assessee sought for an adjournment of the cases on the ground that the necessary contracts have to be secured and produced for the purpose of establishing the assessee's case that the supply of sand was in the course of works contract. But as pointed out by the Tribunal, neither the original contract nor a typed copy of the same was produced at any stage before the sales tax authorities. Even when the matter was before the Tribunal, the Tribunal gave repeated opportunities to the assessee to produce the relevant contracts. But for reasons best known to the assessee, no contract was produced and, therefore, the Tribunal had to proceed and decide the nature of the transactions without the benefit of seeing the concerned contracts. In view of the above circumstances, we do not feel called upon to postpone the hearing of the cases merely on the offer of the learned counsel to get the contracts from the assessee and produce the same here before us.