(1.) Whether supply of five sets of line card testers by the petitioner to the Indian Telephone Industries Limited, Gonda (for short, "the I.T.I.") at a cost of Rs. 2,40,000 per set in furtherance of purchase order dated February 27, 1992 amounted to sale within the meaning of Section 2(1) of the Haryana General Sales Tax Act, 1973 (for short, "the 1973 Act") and the same was rightly assessed to tax is the question which arises for determination in this petition filed for quashing orders dated December 23, 1998 (annexure P5), May 17, 2000 (annexure P7) and February 28, 2002 (annexure P8) passed by the Excise and Taxation Officer (Inspection) Gurgaon-cum-Revisional Authority (respondent No. 2) and Sales Tax Tribunal, Haryana (for short, "the Tribunal") respectively.
(2.) For deciding the aforementioned question, we may notice the relevant facts.
(3.) In response to notice inviting tenders issued by the I.T.I. for development and supply of 50 line card testers, the petitioner submitted tender dated April 27, 1991. Being the lowest, the petitioner's tender was accepted by the I.T.I. Thereafter, order No. 1900482-2/ 1394 dated February 27, 1992 was issued for purchase of five sets line card testers (semi-automatic tester Model 015) development model at the rate of Rs. 2,40,000 per set along with one set production model at a cost of Rs. 1,35,000. A sum equivalent to 10 per cent of the total cost was also remitted to the petitioner who, in turn, furnished bank guarantee of Rs. 1,33,500 in terms of Clause 2(a)(1) of the purchase order. The petitioner supplied five line card testers of Rs. 2,40,000 each on March 31, 1993 for a total cost of Rs. 12 lakhs. The goods were sent by road after workability test was conducted by the officers of the I.T.I. in the factory premises of the petitioner at Gurgaon on March 30, 1993. The test report was signed by the representatives of the petitioner and the I.T.I. However, the price of the goods was not paid to the petitioner who then filed a suit in the court of Sub-Judge, 1st Class, Delhi for restraining State Bank of Bikaner and Jaipur from releasing the amount of bank guarantee in favour of the I.T.I. It also filed a petition in the Court of Sub-Judge, 1st Class, Gurgaon for appointment of arbitrator. An application for restraining the I.T.I. authorities from disposing of the line card testers lying in its premises was also filed. In both the cases, interim injunctions were granted by the concerned courts. On notice, the I.T.I. through its representative appeared in the court at Gurgaon and raised an objection to its jurisdiction to entertain the prayer made by the petitioner. Additional Civil Judge (Senior Division), Gurgaon, to whom the case appears to have been transferred upheld the objection and dismissed the petition filed by the petitioner. Thereafter, the petitioner filed a miscellaneous petition on June 28, 1996 in Allahabad High Court for appointment of Arbitrator. In the reply filed on behalf of the I.T.I. it was admitted that the tender submitted by the petitioner had been accepted and that in pursuance of the purchase order, five line card testers were supplied. However, it was also averred that the petitioner is not entitled to get the price because the goods were of sub-standard quality and request made to the petitioner to rectify the defects did not yield any result. By an order dated May 13, 1999, a learned single Judge of the Allahabad High Court disposed of the petition giving liberty to the petitioner to file application in the court at Gonda for appointment of arbitrator. However, the petitioner did not file any such application.