REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9879 of 2017 (ARISING OUT OF SLP (C) NO. 11539 OF 2015)

M/S. INDIAN HUME PIPE CO. LTD. .....APPELLANT(S)

VERSUS

STATE OF RAJASTHAN & ORS. .....RESPONDENT(S)

W I T H

CIVIL APPEAL NOS. 9880-9886 of 2017 (ARISING OUT OF SLP (C) NOS. 11584-11590 OF 2015)

A N D

CIVIL APPEAL NOS. 9887-9891 of 2017 (ARISING OUT OF SLP (C) NOS. 16385-16389 OF 2015)

J U D G M E N T

A.K. SIKRI, J.

All these appeals are filed by the same appellant, namely,

M/s.  India  Hume Pipe  Co.  Ltd.  (hereinafter  referred  to  as  the

‘assessee’).  The singular issue that arises is also identical in all

these appeals.  The only reason for filing number of appeals is

that the said issue pertains to different Assessment Years.

Civil Appeal No. 9879 of 2017 & Ors. Page 1 of 19

2) The issue that has arisen in these appeals is as to whether Works

contract given to the assessee is divisible in nature, in the facts of

the  case,  and  hence  the  imposition  of  tax  and  penalty  made

under  Section  7AA of  the  Rajasthan  Sales  Tax  Act,  1954  is

justifiable and sustainable in law.

3) In order to have clarity in the matter and better grasp of the lis, it

is necessary to glance through the relevant facts under which the

aforesaid issue has arisen for consideration.

4) In the year 1954, the State Government of Rajasthan enacted the

Rajasthan Sales Tax Act in order to tax the sales and purchase of

any  goods.   The  assessee  is  a  company  engaged  in

manufacturing and laying of pipelines for water supply schemes.

The  Public  Health  and  Engineering  Department  (for  short,

‘PHED’)  of  the State  Government  invited tenders  for  providing

and  laying  of  pipes  complete  with  suitable  jointing  material

specials,  valves  and  construction  of  valve  chamber,  anchor

blocks  table  crossing,  including  testing  and  commissioning  of

pipelines.   On  August  23,  1988,  a  work  order  was  issued  by

PHED in favour  of  the assessee and the assessee, under  the

contracts/agreement dated January 11, 1989, agreed to provide

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PSC pipes manufactured by it and had entered into the contracts

with PHED for providing and laying of pipelines.

5) On  June  28,  1989,  a  notification  inserting  Rule  10B  in  the

Rajasthan Sales Tax Rules, 1955 granting exemption to Works

contract came to be issued with retrospective effect from May 28,

1987.   Another  work  order  was  placed  by  the  respondent  in

favour  of  the  assessee  on  July  10,  1989.   Pursuant  to  this,

another notification dated March 04, 1992 came to be issued by

the  respondent  wherein  it  exempted  tax  on  Works  contract

relating  to  dams and canals.   The  respondent  issued  another

work order dated August 10, 1992 in favour of the assessee for

commission of pipeline in a dam.  Meanwhile, the assessee filed

an application dated September 17, 1992 before the Commercial

Tax Officer  seeking exemption from paying tax.   However, the

same was rejected by the Commercial Tax Officer vide his order

dated September 26, 1994 making it clear to the assessee that

the pipes manufactured and supplied by it fall within the definition

of ‘sale of goods’ and that the contract is divisible in nature.  75%

value  of  the  contract  was  treated  as  consideration  for  sale  of

goods.

6) The  appellate  authority,  Single  Judge  as  well  as  the  Division

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Bench of the High Court of Rajasthan, after dealing with merits of

the  case,  affirmed  the  order  passed  by  the  Commercial  Tax

Officer  holding  that  the  assessee  is  not  entitled  to  claim

exemption under Section 7AA for supply of pipelines as that was

termed as ‘sale’.

7) We  may  mention  that  the  State  Government  also  issued

notification dated March 29, 2001 wherein laying of pipeline with

material has been categorized as Works contract and because of

this the assessee’s work, after the said notification, is considered

as Works contract  and has been granted exemption from that

date.  We are, thus, concerned with the execution of this Works

contract prior to the year 2001.

8) Mr.  Arvind  Datar,  learned  senior  counsel  appearing  for  the

assessee, at the outset, drew the attention of this Court to the

decision of the Constitution Bench in the case of Kone Elevator

India Private Limited v. State of Tamil Nadu1.  He laboured to

demonstrate that instant appeals were squarely covered by the

aforesaid judgment wherein it was held that a single, composite

contract for the supply of goods, labour and service will be treated

as  a  Works  contract  and  that  it  is  not  permissible  to  label  a

1 (2014) 7 SCC 1

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contract as a contract of sale of goods or as a Works contract

depending on the proportion the component of supply of goods

bears to the component of supply of labour and service.  Unless

there are clearly two contracts, one for supply of goods and the

second for supply of labour and services, they cannot be treated

separately.

9) Describing the nature of the contract awarded to the assessee,

Mr. Datar emphasized that it was for the manufacture, supply and

commissioning of pipelines for the supply of water to cities and

towns from certain specified dams and the Indira Gandhi Canal

by PHED.  In this composite works contract, the assessee was

inter alia required to:

(i) establish a factory near the working site for manufacturing

pipes of specified dimensions;

(ii) test the pipes;

(iii) undertake civil works like digging of trenches, etc.;  

(iv) lay  the  pipes  with  welding,  jointing,  etc.  and  fill  up  the

trenches; and

(v) sectional  testing and commissioning of  complete  pipeline

and other ancillary works.

In support, he also referred to certain clauses of the work

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order  which,  according  to  him,  amply  demonstrate  that  the

assessee was supposed to undertake civil work extensively.

In addition, relying upon Rule 10B of the 1955 Rules, Mr.

Datar  contended  that  the  assessee  was  entitled  to

characterisation of its contract under the said Rule and once this

exercise is undertaken, it would be apparent that the contract in

question was works contract, which was indivisible in nature.

10) Mr.  Tushar  Mehta,  learned  Additional  Solicitor  General

appearing  for  the  respondents,  countered  the  aforesaid

submissions and maintained that the works contract involved in

this case is rightly held to be divisible in nature.  According to him,

two  types  of  work  orders  had  been  issued  by  the  State

Government.  As per those orders, the work of supply of pipes

and the works for contract of civil work are two different contracts

in which the first part is concerned with sale of pipes on which tax

has been imposed in accordance with the rates applicable to the

pipes,  and  for  which  exemption  certain  cannot  be  issued  as

supply  in  such  cases  falls  within  the  definition  of  ‘sale’.   He

submitted that  the assessing authority had examined the work

order in holding that the works contract was divisible and had also

rightly rejected the application for exemption on the ground that

Civil Appeal No. 9879 of 2017 & Ors. Page 6 of 19

the  sale  of  pre-stressed  cement  concrete  pipe  falls  within  the

definition of ‘sale of goods’ under the Act.

11) He also argued that the term ‘works contract’ appearing in

Article 366(29A)(b) of the Constitution of India takes within its fold

all  genres  of  works  provide  for  labour  and  services.   For

sustaining levy of tax on goods, deemed to have been sold in

execution of a works contract, the following three conditions must

be fulfilled:

(i) there must be a works contract;

(ii) goods should have been involved in execution of a works

contract; and

(iii) property in those goods must be transferred to a third party

either as goods or in some other form.

Mr. Mehta argued that the works contract executed by the

assessee is a contract which is divisible under work orders and,

thus, the imposition of tax and penalties made under Section 7AA

of the Rajasthan Sales Tax Act, 1954 is in accordance with law.

12) Mr. Mehta also referred to the terms and conditions of the

agreement and submitted that in the contract substantial part of

the  value  of  the  contract  pertains  to  the  cost  of  PSC  pipes,

jointing material  specials, valves etc. which were manufactured

Civil Appeal No. 9879 of 2017 & Ors. Page 7 of 19

by the assessee in their factory at Kekri and were supplied to the

State Government.  It was, thus, submitted that the High Court

has  rightly  interpreted  the  contract  and  arrived  at  a  correct

conclusion and on these facts, the judgment of this Court in Kone

Elevator  India  Private  Limited  is  not  applicable.   Instead  he

relied upon the judgment of this Court in the matter of  State of

Karnataka and Others v. Pro Lab and Others2 in support of his

submissions.

13) We have given due consideration to the submissions made

by counsel for both the parties.

14) Thrust of the arguments of the counsel for the appellants is

that the contract in question was a single, composite contract for

laying  pipelines  for  supply  of  water  from dams  and  canals  to

certain cities and towns in the State of Rajasthan and it cannot be

treated as divisible contract.  In other words, the submission was

that being a single indivisible contract, it was not permissible for

the  State  to  extract  divisibility  component  therein  and  impose

sales tax on the purported sale of goods.

15) In  the  first  instance,  it  may be  mentioned  that  the  High

Court has examined the nature of contract in question and has

2 (2015) 8 SCC 557

Civil Appeal No. 9879 of 2017 & Ors. Page 8 of 19

come  to  the  conclusion  that  as  per  the  terms  and  conditions

thereof, substantial part of the value of the contract pertained to

the  cost  of  PSC  pipes,  joining  material  specials,  valves,  etc.

which were manufactured by the assessee in its factory at Kekri

and were not supplied to the State Government.  The High Court,

thus, affirmed the findings of the authorities below on this aspect

and  concluded  that  the  findings  with  regard  to  sale  of  pipes

involved in the works contract are findings of facts which did not

require any interference.

16) We are inclined to agree with the aforesaid approach of the

High  Court,  namely,  when  it  is  found  on  facts  that  the  works

contract  executed  by the  assessee is  a  divisible  contract,  the

argument of the assessee that it is to be treated as one single

and composite contract needs to be rejected on the facts of this

case.   On these  facts,  we  are  also  of  the  opinion  that  Kone

Elevator India Private Limited  is not applicable.  In that case,

the Court was required to determine whether a particular contract

was works contract for the purposes of Article 366(29A)(b) of the

Constitution.  The Court held that in order to determine such a

question, the enquiry will have to be on the issue as to whether

the contract in question is a composite one for supply of goods,

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labour and service or whether it is not one such single composite

contract  but  two  clearly  separate  contracts,  one  for  supply  of

goods only and the other for supply of labour and services only.

The Court further held that if it is a composite contract, even as

per the constitutional philosophy contained in Article 366(29A), it

is no longer permissible to weigh what proportion the component

of supply of goods bears to the component of supply of labour

and service in the composite contract (whether in terms of the

consideration  payable  or  otherwise),  and  then  depending  on

whether  the proportion of  supply of  goods component  is  high,

label  it  as  a  ‘contract  for  sale  of  goods’  and  after  the  said

proportion is low then label it as a ‘works contract’.  The Court,

thus, held that if it is a composite contract for supply of goods,

labour and service, then it must be held to be a works contract as

per Article 366(29A)(b) of the Constitution.

17) In the instant case, there is no dispute that the contract in

question was a works contract.  The issue is altogether different,

namely, that of divisibility.  It may be mentioned that before Article

366(29A) of the Constitution was amended with effect from March

01,  1983,  the  test  applicable  was  ‘dominant  nature  test’  or

‘degree of intention’ or ‘overwhelming component test’ or ‘degree

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of labour and service test’.   This Court in  Larsen and Toubro

Limited  and  Another  v.  State  of  Karnataka  and  Another3

clarified  that  post  amendment,  i.e.  with  effect  from March  01,

1983, these tests are no longer applicable.  It is also made clear

that  the works  contract  is  an indivisible  contract,  but,  by legal

fiction, is divided into two parts, one for the sale of goods and the

other for supply of labour and services.  Affirming the aforesaid

dicta  in  Larsen  and  Toubro  Limited,  this  Court  in  Kone

Elevator India Private Limited summarised the legal position in

the following manner:

“37.  Having  dealt  with  the  aforesaid  authorities,  as advised at present, we shall refer to certain authorities as  to  how  the  term  “works  contract”  has  been understood  in  the  contextual  perspective  post  the constitutional amendment. In Hindustan Shipyard Ltd., the  Court  observed  that  the  distinction  between  a contract of sale and a works contract is not free from difficulty and has been the subject-matter  of  several judicial  decisions.  It  is  further  observed  that  neither any straitjacket formula can be made available nor can such quick-witted tests devised as would be infallible, for it is all a question of determining the intention of the  parties  by  culling  out  the  same  on  an  overall reading  of  the  several  terms  and  conditions  of  a contract.  Thereafter,  the  two-Judge  Bench  set  out three  categories  of  contracts  and  explained  the contours, namely, (i) the contract may be for work to be done for remuneration and for supply of materials used in the execution of the work for a price; (ii) it may be a contract for work in which the use of the materials is accessory or incidental to the execution of the work; and (iii) it may be a contract for supply of goods where some work is required to be done as incidental to the sale.  Thereafter, it  opined that the first  contract  is a

3 (2014) 1 SCC 708

Civil Appeal No. 9879 of 2017 & Ors. Page 11 of 19

composite contract consisting of two contracts, one of which is for the sale of goods and the other is for work and labour; the second is clearly a contract for work and labour not involving sale of goods; and the third is a  contract  for  sale  where  the  goods  are  sold  as chattels and the work done is merely incidental to the sale.

38. Commenting on the said decision in Larsen and Toubro,  a  three-Judge  Bench  opined  that  after  the Forty-sixth Amendment, the thrusts laid down therein are  not  of  much  help  in  determining  whether  the contract is a works contract or a contract for sale of goods. We shall elaborate the perception as has been stated in Larsen and Toubroat a later stage.

xx                xx               xx

69.   Considered on the touchstone of  the aforesaid two  Constitution  Bench  decisions  in Builders' Assn. and Gannon  Dunkerley  (2,  we  are  of  the convinced opinion that the principles stated in Larsen and  Toubro as  reproduced  by  us  hereinabove,  do correctly enunciate the legal position. Therefore, “the dominant  nature  test”  or  “overwhelming  component test”  or  “the  degree of  labour  and service  test”  are really not applicable. If the contract is a composite one which falls under the definition of works contracts as engrafted under clause (29-A)(b) of Article 366 of the Constitution, the incidental part as regards labour and service pales into total insignificance for the purpose of determining the nature of the contract.”

18) In  the  case  of  Pro  Lab,  same  very  argument,  which  is

advanced in this case, was repelled and in the process judgment

in Kone Elevator India Private Limited was also discussed and

taken note of, in the following manner:

“22.  It was also argued that photograph service can be  exigible  to  sales  tax  only  when  the  same  is classifiable as works contract. For being classified as works  contract  the  transaction  under  consideration

Civil Appeal No. 9879 of 2017 & Ors. Page 12 of 19

has  to  be  a  composite  transaction  involving  both goods  and  services.  If  a  transaction  involves  only service i.e. work and labour then the same cannot be treated  as  works  contract.  It  was  contended  that processing of photography was a contract for service simpliciter  with  no  elements  of  goods  at  all  and, therefore,  Entry  25  could  not  be  saved  by  taking shelter  under  clause  (29-A)  of  Article  366  of  the Constitution. For this proposition, umbrage under the judgment in B.C. Kame case was sought to be taken wherein this Court held that the work involving taking a photograph,  developing  the  negative  or  doing  other photographic work could not be treated as contract for sale of goods. Our attention was drawn to that portion of  the  judgment  where  the  Court  held  that  such  a contract  is  for  use  of  skill  and  labour  by  the photographer to bring about desired results inasmuch as a good photograph reveals not only the aesthetic sense and artistic faculty of the photographer, it also reflects his skill and labour.

23.   Such an  argument  also has  to  be rejected  for more than one reasons. In the first instance, it needs to be pointed out that the judgment in Kame case was rendered  before  the  Forty-sixth  Constitutional Amendment. Keeping this in mind, the second aspect which needs to  be noted is  that  the dispute therein was whether there is a contract of sale of goods or a contract for service. This matter was examined in the light  of  law  prevailing  at  that  time,  as  declared in Dunkerley case as per which dominant intention of the contract was to be seen and further that such a contract  was  treated  as  not  divisible.  It  is  for  this reason  in BSNL and Larsen  and  Toubro cases,  this Court  specifically  pointed  out  that Kame case would not provide an answer to the issue at hand. On the contrary,  the  legal  position  stands  settled  by  the Constitution Bench of this Court in Kone Elevator India (P) Ltd. v. State of T.N.  Following observations in that case are apt for this purpose: (SCC p. 31, para 44)

“44. On  the  basis  of  the  aforesaid elucidation,  it  has  been  deduced  that  a transfer  of  property  in  goods  under  clause (29-A)(b)  of  Article  366 is  deemed to  be a sale of goods involved in the execution of a works  contract  by  the  person  making  the

Civil Appeal No. 9879 of 2017 & Ors. Page 13 of 19

transfer and the purchase of those goods by the person to whom such transfer is made. One thing is significant to note that in Larsen and Toubro, it has been stated that after the constitutional  amendment,  the  narrow meaning given to  the term ‘works contract’ in Gannon Dunkerley (1) no longer survives at present. It has been observed in the said case that: (Larsen and Toubro case, SCC p. 750, para 72)

‘72. …  even  if  in  a  contract,  besides  the obligations of supply of goods and materials and  performance  of  labour  and  services, some  additional  obligations  are  imposed, such contract  does  not  cease to  be  works contract, [for] the additional obligations in the contract  would  not  alter  the  nature  of  the contract so long as the contract provides for a contract for works and satisfies the primary description of works contract.’

It  has  been  further  held  that:  (Larsen  and  Toubro case , SCC p. 750, para 72)

‘72. … Once the characteristics or elements of works contract are satisfied in a contract then  irrespective  of  additional  obligations, such contract would be covered by the term “works contract” [because] nothing in Article 366(29-A)(b) limits the term “works contract” to contract for labour and service only.’”

19) The  history  of  legislative  and  constitutional  amendment

pertaining to works contract is well known, which has been stated

and  restated  by  this  Court  in  number  of  cases.   The  entire

position is summarised in Pro Lab case as well and, therefore, it

is not necessary to burden this judgment by repeating the same.

Purpose would  be served by reproducing paragraph 20 of  the

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said  judgment  wherein  the  legal  position  is  summarised  as

follows:

“20.  To sum  up,  it  follows  from  the  reading  of  the aforesaid  judgment  in Larsen  and  Toubro case that after  insertion  of  clause  (29-A)  in  Article  366,  the works  contract  which  was  indivisible  one  by  legal fiction, altered into a contract, which is permitted to be bifurcated into two:  one for  “sale of  goods”  and the other for “services”, thereby making goods component of  the  contract  exigible  to  sales  tax.  Further,  while going  into  this  exercise  of  divisibility,  dominant intention behind such a contract,  namely, whether  it was  for  sale  of  goods  or  for  services,  is  rendered otiose or immaterial. It follows, as a sequitur, that by virtue  of  clause  (29-A)  of  Article  366,  the  State Legislature is now empowered to segregate the goods part  of  the  works  contract  and  impose  sales  tax thereupon. It may be noted that Entry 54 of List II of Schedule VII to the Constitution of India empowers the State Legislature to enact a law taxing sale of goods. Sales tax, being a subject-matter of the State List, the State Legislature has the competency to legislate over the subject.”

20) It clearly follows from the above that by virtue of the Forty

Sixth  Amendment  to  the  Constitution,  a  single  and  indivisible

contract  is  now brought  on par  with  a  contract  containing two

separate agreements.  It has also now become a settled position

in law that the State Governments have power to levy sales tax

on value  of  material  in  execution of  the works  contract.   This

position is brought about by creating friction whereby the transfer

of moveable property in a works contract is deemed to be sale,

even though it  may not be well  within the meaning of  Sale of

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Goods Act.  In Larsen and Toubro case it was further held that

the value of goods which can constitute a measure of levy of the

tax has to be the value of goods at the time of incorporation of the

goods in the works even though property in goods passes later.

Taxing  the  sale  of  goods  element  in  a  works  contract  is

permissible  even  after  incorporation  of  goods,  provided  tax  is

directed to the value of goods at the time of incorporation and

does not purport to tax the transfer of immovable property (refer

to paragraph 124).

21) In  the  present  case,  the  assessing  authority,  after

scrutinising the agreement in question between the assessee and

the State Government, returned a finding of fact that manufacture

and  supply  of  PSC  pipes,  jointing  material  specials,  valves,

anchor  blocks,  etc.  do  not  fall  within  the  scopes  of  buildings,

bridges,  dams,  roads  and  canals.   It  was  also  held  that  the

agreement was clearly in two parts, namely, (i) sale and supply of

PSC pipes, jointing material specials, valves, anchor blocks, etc.

and (ii) the remaining part being supply of labour and services.

These findings are upheld not only by the appellate authority but

also by the Single Judge of the High Court as well as the Division

Bench of the High Court.  It may also be mentioned at this stage

Civil Appeal No. 9879 of 2017 & Ors. Page 16 of 19

that the assessee has, in fact, admitted that it had no grievance

against the finding that supply of pipes was nothing but the sale

of pipes involved in the execution of the contracts and, therefore,

it was excisable to sales tax.  In view of the findings recorded by

the authorities below, this element of sale of goods shall apply to

jointing  material  specials,  valves,  anchor  blocks,  etc.  as  well.

Thus, we are unable to find any fault with the impugned judgment

of the High Court.

22) These appeals are, accordingly, dismissed with costs.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; AUGUST 28, 2017.

Civil Appeal No. 9879 of 2017 & Ors. Page 17 of 19

(REVISED) ITEM NO.1501             COURT NO.6               SECTION XV (For Judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Civil Appeal No. 9879/2017 M/S. INDIAN HUME PIPE CO. LTD.              Appellant(s)

VERSUS STATE OF RAJASTHAN AND ORS. Respondent(s) WITH C.A. Nos. 9880-9886/2017 C.A. Nos. 9887-9891/2017 Date : 28-08-2017  

These  appeals  were  called  on  for  pronouncement  of judgment today. For Appellant(s) Mr. Arvind P. Datar, Sr. Adv.

Mr. Sudhir Gupta, Sr. Adv. Mr. Varun Chandiok, Adv. Mr. Umang Gupta, Adv. Mr. Amarjit Singh Bedi, AOR

                   For Respondent(s) Mr. Milind Kumar, AOR

Mr. Shiv Mangal Sharma, Adv. Mr. Vivek Ranjan Mohanty, Adv. Mr. Puneet Parihar, Adv. Mr. Shrey Kapoor, Adv. Mr. Rohit K. Singh, AOR

Hon'ble Mr. Justice A. K. Sikri pronounced the judgment  of  the  Bench  comprising  His  Lordship  and Hon'ble Mr. Justice Ashok Bhushan.

The appeals are dismissed in terms of the signed reportable judgment.

(NIDHI AHUJA)                  (MADHU NARULA) COURT MASTER   COURT MASTER

[Signed reportable judgment is placed on the file.]

Civil Appeal No. 9879 of 2017 & Ors. Page 18 of 19

ITEM NO.1501             COURT NO.6               SECTION XV (For Judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Civil Appeal No. 9879/2017 M/S. INDIAN HUME PIPE CO. LTD.              Appellant(s)

VERSUS STATE OF RAJASTHAN AND ORS. Respondent(s) WITH C.A. Nos. 9880-9886/2017 C.A. Nos. 9887-9891/2017 Date : 28-08-2017  

These  appeals  were  called  on  for  pronouncement  of judgment today. For Appellant(s) Mr. Arvind P. Datar, Sr. Adv.

Mr. Sudhir Gupta, Adv. Mr. Varun Chandiok, Adv. Mr. Umang Gupta, Adv. Mr. Amarjit Singh Bedi, AOR

                   For Respondent(s) Mr. Milind Kumar, AOR

Mr. Shiv Mangal Sharma, Adv. Mr. Vivek Ranjan Mohanty, Adv. Mr. Puneet Parihar, Adv. Mr. Shrey Kapoor, Adv. Mr. Rohit K. Singh, AOR

Hon'ble Mr. Justice A. K. Sikri pronounced the judgment  of  the  Bench  comprising  His  Lordship  and Hon'ble Mr. Justice Ashok Bhushan.

The appeals are dismissed in terms of the signed reportable judgment.

(NIDHI AHUJA)                  (MADHU NARULA) COURT MASTER   COURT MASTER

[Signed reportable judgment is placed on the file.]

Civil Appeal No. 9879 of 2017 & Ors. Page 19 of 19