ORDER HIDAYATULLAH, J. - This order shall also govern Miscellaneous Petitions Nos. 279 and 308 of 1954. 2. Petition No. 245 is by the Madhya Pradesh Contractors' Association through its Secretary. Petition No. 279 is by the Jabalpur Contractors' Association, the President and Secretary (who are contractors) and the legal adviser (who is not) of the said association. Petition No. 308 is by a contractor. 3. By these petitions the assessment of sales tax on the supply of building materials used in the execution of building contracts for the Public Works Department, the M.E.S. and private parties is challenged. The petitioners execute the works after their tenders for the finished work according to approved plans and pre-determined quantities and quality are accepted. They supply the materials which go into the finished work. Payment, on their averments, is for the completed work but during its progress a portion of the amounts of the current bills is paid. 4. The petitioners submit that there is no transfer of property in the materials as such, that they are not goods in the strict sense, that there is no sale for a price and that the materials form part of immovable property before payment is made. The petitioners contend that the Central Provinces and Berar Sales Tax Act, 1947 (hereinafter called the impugned Act) purports to tax the building materials treating the supply thereof as a sale and it was thus beyond the powers of the Legislature conferred by the Entry No. 48 - taxes on the sale of goods - in the second list of the Seventh Schedule of the Constitution Act, 1935. A detailed reference to the provisions of the impugned Act involved in this connection will be made hereafter. 5. The petitioners submit that all sales to Government were exempted by the Central Provinces and Berar Sales Tax (Amendment) Act, 1949 (XVI of 1949) but this exemption was withdrawn by a mere notification (No. 1503-1349-VIII, dated 18th September, 1950). They contend that this action amounts to legislation by the State Government and is ultra vires. They finally contend that the fixation of the price of the materials sought to be taxed under the Act is arbitrary. 6. They contend that this action amounts to legislation by the State Government and is ultra vires. They finally contend that the fixation of the price of the materials sought to be taxed under the Act is arbitrary. 6. According to the petitioners, they are compelled on pain of prosecution and penalty to make returns of such transactions and since there is no equally efficacious remedy under the impugned Act and the demand is an invasion of their fundamental rights, they ask for an appropriate writ against the respondents. For the interpretation of Entry No. 48 they reply primarily upon Sales Tax Officer v. Budh Prakash Jai Prakash ([1954] 5 S.T.C. 193; A.I.R. 1954 S.C. 459); for the proposition that legislative competence under the entry could not comprehend the supply of building material reference is made to Gannon Dunkerley & Co. v. State of Madras ([1954] 5 S.T.C. 216) and finally for the right to ask for a writ in the given circumstances the decision in Himmatlal v. State of Madhya Pradesh ([1954] 5 S.T.C. 115; A.I.R. 1954 S.C. 403) is invoked. 7. The respondents (the taxing authority) join issue on all these points and raise many preliminary objections. They contend (a) that an association cannot move for a writ; (b) that petitions Nos. 279 and 368 are bad for multifariousness and also because all dealers belonging to the Association have not jointed; (c) that a declaratory opinion on the vires of legislation cannot be given; and (d) that since appropriate remedies are available in the impugned Act, no writ can issue, particularly to Revenue. 8. We heard these three petitions and particularly that of Banarsidas to whose petition, as conceded, the first two objections do not apply. The existence of remedies under the impugned Act did not prevent the issue of a writ to the Sales Tax Authorities when certain provisions of the impugned Act were found to be ultra vires : See Himmatlal v. State of Madhya Pradesh ([1954] 5 S.T.C. 115; A.I.R. 1954 S.C. 403). The same considerations must apply here if any portion of the impugned Act or the rules or orders thereunder is found to be ultra vires. For this purpose the legality of the impugned provisions must necessarily be examined, and the question whether a writ should or should not issue will depend on the conclusion reached. 9. The same considerations must apply here if any portion of the impugned Act or the rules or orders thereunder is found to be ultra vires. For this purpose the legality of the impugned provisions must necessarily be examined, and the question whether a writ should or should not issue will depend on the conclusion reached. 9. In support of the contention that the petitioners merely seek a declaratory opinion from this Court and such opinion should not be given, my observations in Sheoshankar v. The State ((1951) I.L.R. 1951 Nag. 646, at p. 669) are quoted. Those observations were made in the special circumstances of that case because there was really "no case or controversy" before the Court. I did express then that judicial review should not be allowed to run the uncertain course it sometimes did in America and Courts should not pronounce upon the vires of legislation unless the matter was properly before it in a "case or controversy". I also suggested the adoption of the rule in Dyson v. Attorney-General ([1911] 1 K.B. 410). But my observations were made because there was no threat to the rights of the petitioner in that case unless he took the courage of his convictions and broke the law and he could not create a "case or controversy" by merely alleging that if he did break the law he was immune from punishment. Here the petitioners must, on pain of penalty, make a return and pay a tax which, if illegal, cannot be rightly demanded, or to avoid it must resort to onerous remedies including the payment of the tax. The Divisional Bench had in the case of Himmatlal v. State of Madhya Pradesh ([1952] 3 S.T.C. 448) declined to grant a writ because the petitioner was not asked to make a return but a writ was eventually issued by the Supreme Court : See Himmatlal v. State of Madhya Pradesh ([1954] 5 S.T.C. 115; A.I.R. 1954 S.C. 403). The circumstances here are even stronger and if the petitioners successfully establish that the impost in illegal a writ can be issued. I accordingly proceed to deal with the grounds on which the impugned Act is challenged. 10. Before dealing with the contentions, I shall refer to the impugned provisions and their place in the scheme of the Act. The fourth section of the impugned Act is the charging section. I accordingly proceed to deal with the grounds on which the impugned Act is challenged. 10. Before dealing with the contentions, I shall refer to the impugned provisions and their place in the scheme of the Act. The fourth section of the impugned Act is the charging section. The first sub-section, clause (a), reads as follows :- "In Madhya Pradesh excluding the merged territories every dealer whose turnover during the year preceding the commencement of this Act exceeded the limits specified in sub-section (5) shall be liable to pay tax in accordance with the provisions of this Act on all sales effected after the commencement of this Act." For the purpose of the charging section certain definitions have been framed. The definition of "dealer" [Section 2(c)] includes a person who carries on the business of "supplying goods"; "contract" [section 2(b)] includes the carrying out for cash or deferred payment or other valuable consideration (i) the construction, fitting our, improvement or repair of any building, road, bridge or other immovable property, or (ii) the installation or repair of any machinery affixed to a building or other immovable property. "Goods" [section 2(d)] include all materials, articles and commodities, whether or not to be used in the construction, fitting out, improvement or repair of immovable property. "Sale" is defined in section 2(g) as follows :- "'sale' with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in the course of the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge; and the word 'purchase' shall be construed accordingly." "Sale price" [section 2(h)] includes the amount payable to a dealer as valuable consideration for the carrying our of any contract less such portion, representing the proportion of the cost of labour to the cost of materials used in carrying our such contract, as may be prescribed. Finally, "turnover" [section 2(j)] includes the aggregate of the amounts of sale prices and parts of sale prices received or receivable by a dealer in respect of the supply of goods or in respect of the supply of goods in the carrying our of any contract effected or made during the prescribed period excluding inter alia such sales as may be prescribed. 11. 11. These definitions extend the operation of the impugned Act to reach the supply of materials used in the building contracts. When we incorporate these definitions in the charging section and exclude therefrom all references to "sale of goods" as opposed to "supply of goods" we get a true picture of the incidence of the tax and its pith and substance. I shall for reference reproduce the main charging section (in capitals) and define the words within brackets immediately as they occur :- IN MADHYA PRADESH EXCLUDING THE MERGED TERRITORIES EVERY (DEALER) person who carries on in Madhya Pradesh the business of supplying (goods), materials, articles and commodities used in the construction, fitting out, improvement or repair of immovable property WHOSE (TURNOVER) aggregate of the amounts of (sale prices), i.e., amounts payable to him as valuable consideration for the carrying out of any (contract) agreement for carrying our for cash or deferred payment or other valuable consideration, the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property or the installation or repair of any machinery affixed to a building, or other immovable property, less such portion, representing the proportion of the cost of labour to the cost of materials used in carrying out of such contract, as may be prescribed, received or receivable by him in respect of the supply of (goods) materials, articles and commodities used in the construction etc. of immovable property DURING THE YEAR PRECEDING THE COMMENCEMENT OF THIS ACT EXCEEDED THE LIMITS SPECIFIED IN SUB-SECTION (5) SHALL BE LIABLE TO PAY TAX IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT ON ALL SALES EFFECTED AFTER THE COMMENCEMENT OF THIS ACT. 12. According to the petitioners, Entry No. 48 cannot comprehend such a tax. They submit that the Supreme Court ruled in Sale Tax Officer v. Budh Prakash Jai Prakash ([1954] 5 S.T.C. 193; A.I.R. 1954 S.C. 459) that the expression "sale of goods" in the entry should receive the meaning which it was understood to bear in legislative practice of England and India before the Constitution Act, 1935, was passed and considered in this way, the power conferred was properly exercised only if the tax fell on a "sale", that is to say, a transfer, for price, of the property in goods. It is submitted that the interpretation of the entry is no longer res integra and its ambit must be confined to what was indicated by their Lordships. I shall presently discuss the decision of their Lordships and state also the exact manner in which legislative practice is considered in this context. 13. The petitioners next submit that the ambit of the entry is further discussed in Gannon Dunkerley & Co. v. State of Madras ([1954] 5 S.T.C. 216) where a similar impost was declared illegal by the Madras High Court. The last cited case dealt with the Madras General Sales Tax Act (IX of 1939) and the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. Certain cognate provisions in that Act were declared to be ultra vires by Satyanarayana Rao and Rajagopalan, JJ. In Madras too, the question was whether a tax on building materials used in "works contract" could be subjected to sales tax. The learned Judges held that while the entries should be construed in a broad and liberal spirit, they should receive a meaning consistent with the legislative intent existing at the time of the enactment of the Constitution Act, 1935. Their Lordships then observed that :- "It must be remembered that the Constitution Act was enacted by the British Parliament and the draftsmen and the Parliament must have been well aware that the expression 'sale of goods' had acquired a legal import by that time, and it is legitimate therefore to presume that the expression was used in the sense in which it was understood by English lawyers and also in India. The draftsmen must have intended to define the power of the Legislature to tax only the transaction of sale of goods, which was understood in law as meaning and as constituting those composite series of acts beginning with an agreement of sale and ending with transfer of property for a price, which constitute sale of goods. That the expression sale of goods acquired a definite meaning in England under the Sale of Goods Act, 1893, and in India under the Sale of Goods Act, 1930, which was modelled on the English Act, does not admit of serious doubt." 14. Their Lordships next traced the meaning of the word "sale" from the time of the Romans down to 1935 and considered the meaning of the term "goods". Their Lordships next traced the meaning of the word "sale" from the time of the Romans down to 1935 and considered the meaning of the term "goods". They held that building contracts were always regarded in law as "entire and indivisible contracts in the sense, that the complete fulfilment of the promise by one party is a condition precedent to the right of the other to call for the fulfilment of any part of the promise by the other". They noticed the fact that building materials form part of immovable property before ownership is transferred and thus they are not transferred as goods. They then laid down their conclusions thus :- "It is clear from the foregoing discussion that there is no element of sale of the materials in a building contract and that the contract is one and entire and is indivisible. Unless the work is completed, the builder is not entitled to the price fixed under the contract or ascertainable under the terms of the contract. It does not imply or involve a contract of sale of the materials for a price stipulated. The property in the materials passes to the owner of the land not by virtue of the delivery of the materials as goods under and in pursuance of an agreement of sale which stipulates a price for the material. The property in the materials passes to the owner of the land because they are fixed in pursuance of the contract to build, and along with the corpus, which ultimately results by the erection of the superstructure, the materials also pass to the owner of the land." Applying these conclusions to building contracts their Lordships held : "...... building contracts, which the assessees entered into during the assessment year, on which the turnover was calculated, do not involve any element of sale of the materials and are not in any sense contracts for the sale of goods as understood in law. Having regard to the terms of particular contracts, there may be an intention to pass the ownership in the meterials for a price agreed upon between the parties, in which case such contracts might contain an element of sale of goods, but that is not the case here. Having regard to the terms of particular contracts, there may be an intention to pass the ownership in the meterials for a price agreed upon between the parties, in which case such contracts might contain an element of sale of goods, but that is not the case here. If the amendments introduced in 1947 by the Provincial Legislature are intended to catch in the net of tax contracts of the nature with which we are concerned, we should hold that to that extend the amendments introduced are ulvra vires of the Provincial Legislature as they had no power to tax transactions which are not sales of goods." 15. The learned Judges of the Madras High Court in determining the meaning of the expression "sale of goods" have relied on two principles. They reply on (i) legislative practice existing in England and in India when the Constitution Act of 1935 was passed, and (ii) the rule of construction enunciated by James, L.J., in Ex parte Campbell ((1870) 5 Ch. 703 at 706). 16. Legislative practice can sometimes be taken into account to determine the sense in which a word or expression has been used in a Constitution. The scope of such an enquiry is necessarily limited and often is inconclusive. Legislative practice was examined in Croft v. Dunphy ([1933] A.C. 156). In that case Lord Macmillan laid down that :- "When a power is conferred to legislate on a particular topic it is important, in determining the scope of the power, to have regard to what is ordinarily treated as embraced within that topic in legislative practice and particularly in the legislative practice of the State which has conferred the power." Their Lordships were on that occasion concerned with certain measures designed to combat smuggling and invoked the "Hovering Act" to lay down that :- "In these circumstances it is difficult to conceive that the Imperial Parliament in bestowing plenary powers on the Dominion Parliament to legislate in relation to customs should have withheld from it the power to enact provisions similar in scope to those which had long been an integral part of Imperial customs legislation and which presumably were regarded as necessary to its efficacy." 17. In Croft v. Dunphy ([1933] A.C. 156) legislative practice was used to extend the operation of customs laws to ancillary and supplementary matters not included in "customs" proper but necessary to administer customs legislation. The rule was again invoked by the Federal Court in In re C.P. and Berar Act No. XIV of 1938 ([1939] F.C.R. 18; 1 S.T.C. 1) to determine the meaning of the expression "duties of excise". Gwyer, C.J., however, observed at page 55 of the report that it was an inconclusive test. Legislative practice was again examined in In re levy of Estate Duty ([1944] F.C.R. 317) to determine the conflict between the expressions "estate duty" and "duty in respect of succession to property." English legislative practice was rejected as a test in Peterswald v. Bartley (1 Com. L.R. 497) on the ground that the Constitution was framed in Australia by Australians and for the use of the Australian people, that the word "excise" had a distinct meaning in the popular mind, that there were in the States many laws in fact dealing with the subject and that when used in the Constitution, it was used in connection with the words "on goods produced or manufactured in the State" leading to the inevitable conclusion that whenever it was used it was intended to mean a duty analogous to a customs duty imposed on goods either in relation to quantity or value when produced or manufactured and not in the sense of a direct tax or personal tax. The Constitution alone was read by Griffith, C.J., and it was laid down that that was the proper construction to be put upon the term. 18. In Navinchandra Mafatlal v. Commissioner of Income-tax, Bombay City ([1954] 26 I.T.R. 758) the Supreme Court declined to hold that there was any legislative practice proved in the case and that the word "income" must be given a meaning of the broadest connotation. Their Lordships laid down that anything reasonably subsidiary or ancillary must always be held included in the power given to legislate upon a subject. Their Lordships laid down that anything reasonably subsidiary or ancillary must always be held included in the power given to legislate upon a subject. Their Lordships observed :- "Reference to legislative practice may be admissible for cutting down the meaning of a word in order to reconcile two conflicting provisions in two legislative lists as was done in the C.P. & Berar Act case ([1939] F.C.R. 18; 1 S.T.C. 1) or to enlarge their ordinary meaning as in the State of Bombay & Another v. F. N. Balsara ([1951] 2 S.C.R. 682). The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude." 19. The true test of how to use legislative practice was laid down in James v. Commonwealth of Australia ([1936] A.C. 578) where it was observed by Lord Wright, M.R., at page 614 as follows :- "It is true that a Constitution must not be construed in any narrow and pedantic sense. The words used are necessarily general, and their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning. It has been said that 'in interpreting a constituent of organic statute such as the Act (i.e., the British North America Act), that construction most beneficial to the widest possible amplitude of its powers must be adopted; British Coal Corporation v. The King ([1936] A.C. 500, at 518). But that principle may not be helpful, where the section is, as section 92 may seem to be, a constitutional guarantee of rights, analogous to the guarantee of religious freedom in section 116, or of equal rights of all residents in all States in section 117. The true test must, as always, be the actual language used. But that principle may not be helpful, where the section is, as section 92 may seem to be, a constitutional guarantee of rights, analogous to the guarantee of religious freedom in section 116, or of equal rights of all residents in all States in section 117. The true test must, as always, be the actual language used. Nor can any decisive help here be derived from evidence of extraneous acts existing at the date of the Act of 1900; such evidence may in some cases help to throw light on the intention of the framers of the statute, though that intention can in truth be ascertained only from the language used. But new and unanticipated conditions of fact arise. It may be that in 1900 the framers of the Constitution were thinking of border tariffs and restrictions in the ordinary sense, and desired to exclude difficulties of that nature, and to establish what was and still is called 'free trade', and to abolish the barrier of the State boundaries so as to make Australia one single country. Thus they presumably did not anticipate those commercial and industrial difficulties which have in recent years led to marketing schemes and price control or traffic regulations such as those for the coordination of rail and road services, to say nothing of new inventions, such as aviation or wireless. The problems, however, of the Constitution can only be solved as they emerge by giving effect to the language used." 20. Examples are not wanting where an entry conferring legislative power was given a wide meaning to include certain transactions not even contemplated at the time Constitution was made. The problems, however, of the Constitution can only be solved as they emerge by giving effect to the language used." 20. Examples are not wanting where an entry conferring legislative power was given a wide meaning to include certain transactions not even contemplated at the time Constitution was made. Thus In re Regulation and Control of Radio Communication in Canada ([1932] A.C. 304) Viscount Dunedin interpreted the word "telegraph" to include radio communication and broadcasting, and in Henrietta Muir Edwards v. Attorney General for Canada ([1930] A.C. 124) the Judicial Committee laid down that though it was permissible to consider two points, namely, the external evidence derived from extraneous circumstances such as previous legislation and decided cases and the internal evidence derived from the Act itself, the conclusion based on legislative practice must not be pushed too far, aud agreed with the dictum of Farwell, L.J., in Rex v. West Ridding of Yorkshire County Council ([1906] 2 K.B. 676, at 716) that "although it may, perhaps, be legitimate to call history in aid to show what facts existed to bring about a statute, the inferences to be drawn therefrom are extremely slight." Their Lordships on that occasion made a forceful pronouncement on the matter in these words :- "Over and above that, their Lordships do not think it right to apply rigidly to Canada of today the decisions and the reasons therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development. Referring therefore to the judgment of the Chief Justice and those who agreed with him, their Lordships think that the appeal to Roman Law and to early English decisions is not of itself a secure foundation on which to build the interpretation of the British North America Act of 1867." Their Lordships than agreed with the dissenting opinion of Duff, J., and held that the appeal to history was in that particular matter not conclusive. 21. Similarly, the rule laid down by James, L.J., in Ex parte Campbell ((1870) L.R. 5 Ch. 703) that the legislature must be presumed to give recognition to decisions of Courts was not always accepted without qualification. This appears from the re-statement of the rule by Lord Macmillan in Barras v. Aberdeen Steam Trawling and Fishing Co. ([1933] A.C. 402). 21. Similarly, the rule laid down by James, L.J., in Ex parte Campbell ((1870) L.R. 5 Ch. 703) that the legislature must be presumed to give recognition to decisions of Courts was not always accepted without qualification. This appears from the re-statement of the rule by Lord Macmillan in Barras v. Aberdeen Steam Trawling and Fishing Co. ([1933] A.C. 402). His Lordship observed that though the rule says that where the language of a statute has received judicial interpretation and Parliament again employs the same language in a subsequent statute dealing with the subject-matter, there is a presumption that Parliament intended that the language so used by it in subsequent statute be given the meaning which meantime has been judicially attributed to it, the reputed omniscience of Parliament cannot be carried too far. After discussing the extent to which judicial interpretation of a word or expression can be used, Lord Macmillan stated that the rule was better laid down by James, L.J., himself in the case of Greaves v. Totfield ((1880) 14 Ch. D. 563, at 571) in the following words :- "Now, if an act of Parliament uses the same language which was used in a former Act of Parliament referring to the same subject and passed with the same purpose, and for the same object, the safe and well-known rule of construction is to assume that the Legislature when using well-known words upon which there have been well-known decisions uses those words in the sense which the decisions have attached to them." 22. It would appear from the foregoing discussion that legislative practice is helpful within limits, but not conclusive. It is also plain that judicial interpretation of words and expressions is not necessarily conclusive unless those decisions are well-known and the Legislature is legislating upon the same matter, for the same purpose and for the same object. 23. It would appear from the foregoing discussion that legislative practice is helpful within limits, but not conclusive. It is also plain that judicial interpretation of words and expressions is not necessarily conclusive unless those decisions are well-known and the Legislature is legislating upon the same matter, for the same purpose and for the same object. 23. Applying these tests to the case of Sales Tax Officer v. Budh Prakash Jai Prakash ([1954] 5 S.T.C. 193; A.I.R. 1954 S.C. 459) it is clear that the Supreme Court was merely invoking legislative practice to show that there existed at the time of the enactment of the Government of India Act, 1935, a well-defined and well-established distinction between a "sale" and an "agreement to sell" and therefore it was proper to interpret the expression "sale of goods" in Entry No. 48 in the sense in which it was used in legislation, both in England and in India, and to hold that it authorized the imposition of a tax only when there was a completed sale involving transfer of title. Their Lordships further observed that the sense of the thing also required that the tax should not be levied except on the price of goods and only at the stage when the seller could recover the price under the contract. In a case of forward transactions which their Lordships were then dealing, there can be no suit for recovery of the price but for damages for breach of contract and their Lordships therefore held that the entry could not contemplate a mere agreement of sale as opposed to a sale proper. 24. Their Lordships were not limiting the scope of the Entry for all purposes. Their Lordships only excluded from its operation matters which could not be brought within its ambit in any way. The word "sale" involves a transfer of title for a price and the entry was held not to include a power to tax a transaction in which there was at the moment of taxation no sale for a price at all. The decision of their Lordships, therefore, must be related to the facts then present and cannot be invoked to limit the operation of the entry in all circumstances. 25. The decision of their Lordships, therefore, must be related to the facts then present and cannot be invoked to limit the operation of the entry in all circumstances. 25. While it cannot be doubted that a limited Legislature which possesses a mere supremacy of "enumerated entries" cannot by fiction create a power for itself which does not flow naturally from the entry, the power itself is otherwise unlimited and of the widest amplitude possible. The natural and full scope of the entry cannot be cut down by anything not found in the Constitution Act, 1935. Lord Selbourne's dictum in The Queen v. Burah ((1878) 3 A.C. 889, at 904, 905) has often been quoted in this connection. When entry No. 48 was framed it conferred on the Provincial Legislature powers of the widest amplitude to tax the sale of goods in all its aspects and forms. The text being explicit, the text is conclusive alike in what it directs and what it prohibits. The necessary conditions for the impost, however, were that there should be a sale of goods. The selection of the taxable event and the severance of transactions of sale from other transactions in which they might be embedded was a necessary part of the power. The Legislature could not say that a contract of service amounted to a sale of services, but it could tax a genuine transaction of sale of goods whatever form it took. 26. The task of the builder is to supply materials and to execute work on them to produce a completed object. The Madras decision, with all due respects, seems to suggest that the expression "sale of goods" received its full and final meaning by 1935 through legislation and decided cases. The cases cited there do not refer to taxation but deal with other matters. So also the statutes. That building contracts are entire, that property in the building materials passes when they are part of immovable property and that payment is in a lump sum and not separately for the materials may be matters of consequence in some contexts. But there is always a sale if goods are transferred to another and paid for by him. It cannot be gainsaid that there is payment for materials, though the payment is not made separately but as part of a large amount. But there is always a sale if goods are transferred to another and paid for by him. It cannot be gainsaid that there is payment for materials, though the payment is not made separately but as part of a large amount. Building materials are goods is clear from The Deputy Federal Commissioner of Taxation v. Stronach (55 C.L.R. 305) and M.R. Hornibrook (Pty.) Ltd. v. Federal Commissioner of Taxation (62 C.L.R. 272) and certain other rulings in Australia. The Sales Tax (Assessment) Acts, 1930-36, lay the tax on goods manufactured or imported into Australia granting exemptions for some building materials and these cases may not be fully apposite. But there is a clear statement that building materials can be treated as "goods" and the wide definition of that term in the Constitution Act, 1935, renders the dictum easily applicable here. The Canadian Statutes also tax "manufacture" but the cases of tailors (e.g. The King v. Pedrick & Palen (59 D.L.R. 315) are interesting, though again not quite appropriate. 27. We are here concerned with a taxing measure and the power to levy the tax can only be determined by a fair consideration of the ambit of the entry by which the power is conferred. If the pitch and substance of the Act come within that ambit, the power is there, otherwise not. If a building contract was not split up into its component parts, that is to say, material and labour, in legislative practice relating to the ordinary regulation of sale of goods, there is no warrant for holding that it could not be so split up even for purposes of taxation. The reasoning in the Madras case does not take into account the fundamental fact that the Legislature could select out of a composite transaction the actual sale of materials and tax such sale in the exercise of undoubted plenary powers. The word "supply" used in the definitions has not any sinister purpose and, read in the context of other definitions, is apt to describe the sale of building materials not directly but as part of a building contract. 28. I have held that the Provincial Legislature was competent to sever from a complex transaction any sale involved in it and to tax such sale. I have also held that the supply of goods is tantamount to the sale thereof. 28. I have held that the Provincial Legislature was competent to sever from a complex transaction any sale involved in it and to tax such sale. I have also held that the supply of goods is tantamount to the sale thereof. In this view of the matter, the extended definitions of "contract", "dealer", "goods", "sale" and "turnover" cannot be impugned. The attempt of these definitions is not to bring within the taxing field a "sale" unmixed with any other transaction but also to pick out a sale from the composite transaction of a building contract. I do not find any reason to hold that these definitions were in any way beyond the powers of the Provincial Legislature or that the tax thus levied cannot be legal. 29. That leaves over for consideration the definition of "sale price" as given in the Act and rule 4 of the Sales Tax Rules, 1947, which deals with taxable turnover in respect of contracts. The definition of "sale price", in so far as it is relevant for our purpose, is as follows :- "(h) 'sale price' means the amount payable to a dealer as valuable consideration for - (1) * * * * (ii) the carrying out of any contract, less such portion, representing the proportion of the cost of labour to the cost of materials used in carrying out such contract, as may be prescribed." Rule 4 which prescribes this proportion reads :- "4. Taxable turnover in respect of contracts. - In calculating the sale price for the purpose of sub-clause (ii) of clause (h) of section 2, a dealer may be permitted to deduct from the amounts payable to him as valuable consideration for carrying out a contract, a sum not exceeding such percentages as may be fixed by the Commissioner for different areas subject to the following maximum percentages, namely :- (a) In the case of an electrical contract - 20 per cent. (b) In the case of a structural contract - 30 per cent. (c) In the case of a sanitary or gas contract - 33 1/3 per cent. (d) In the case of overhaul or repair of any motor vehicle - 60 per cent. (e) In the case of other contracts - 30 per cent." 30. (b) In the case of a structural contract - 30 per cent. (c) In the case of a sanitary or gas contract - 33 1/3 per cent. (d) In the case of overhaul or repair of any motor vehicle - 60 per cent. (e) In the case of other contracts - 30 per cent." 30. It appears from the above definition and the rule that the consideration paid for an entire contract is sought to be split up into two parts. The first part represents the fee for the contract and the second part the cost of materials used in carrying out such contract. These contracts into which the petitioners enter with the Public Works Department, the Military Engineering Service and private persons do not ordinarily provide separately for cost of material and consideration for carrying out the contract. They are not what can be conveniently described "cost-plus-a-fee" (shortly cost-plus) contracts. The expression "cost-plus contract" received its exposition in Alamba v. King & Boozer (314 U.S. 1). In that case immunity from sales tax was claimed on the ground that if the sales tax was demanded from the contractor and was allowed to pass into price charged to the United States, the immunity granted against States taxation to the United States would be breached. The agreement there was for "cost-plus contract" and it was held that since distinction must be made between the cost of the goods and the contract charges, the cost of the goods must necessarily include the tax which the contractor incurred in obtaining lumber for the purpose of building a camp for the United States. 31. There being no provision for entering into agreements on the basis of "cost-plus contract", the Legislature had to hunt about for some means to determine the price of goods on which tax could be laid. It is plain that there is no ready basis in the bills themselves on which the cost of materials can be separated from contract charges. In this state of affairs, the Legislature hit upon the expedient of allowing the State Government to fix the proportion of contract charges to the cost of goods in building contracts. The State Government fixed the ceiling proportion and within that limit left it to the Commissioner to fix proportions in different areas. In this state of affairs, the Legislature hit upon the expedient of allowing the State Government to fix the proportion of contract charges to the cost of goods in building contracts. The State Government fixed the ceiling proportion and within that limit left it to the Commissioner to fix proportions in different areas. These proportions are thus pre-determined, and though there may be no exception taken to the fixing of an upward limit of tax demandable in a particular case, there is much room for criticism that the proportion so fixed may have no relation to the actual price of goods supplied. The power of the Provincial Legislature to tax sale of goods requires that there should be a sale of goods and, according to the forty-eighth entry, the tax could only be demanded in relation to goods or on the basis of the price actually paid for the goods. It was not open to the Provincial Government to tax in such a way that the tax did not fall upon goods or their price. There is a vital defect in the definition of sale price taken with rule 4, inasmuch as under them the tax is levied on a pre-arranged pattern applicable to all cases alike, irrespective of the kind of work which may have been executed and the nature of the materials that may have been supplied. The rule gives the Commissioner the power to determine a proportion for himself for a particular area and the contractor is only allowed to deduct from the total consideration for the contract that amount which the Commissioner's pre-determination represents the valuable consideration for executing the contract. 32. In my view, this artificial and palpably unnatural determination of the price of goods cannot be said to square with the powers given by the Constitution Act to levy a tax on the "sale of goods." The tax is not laid in the Act on different articles and commodities supplied by the contractor but on their cost, and this cost is not found out actually but is deduced by substracting from the total consideration, the consideration for the execution of the contract as opposed to cost to materials which the Commissioner thinks suitable in any area, subject to an upward limit fixed by the rules. If there had been provision for agreements on the basis of "cost-plus-a-free", the matter might have been simple. If there had been provision for agreements on the basis of "cost-plus-a-free", the matter might have been simple. But since the contract is for a finished work and payment is in a lump sum on the basis of quantity and quality, rather than the cost of labour plus the cost of the materials supplied, it is impossible on the rules as they exist to determine the correct price of the goods on which the tax can legitimately be demanded. There is a distinct probability that the tax falls on services by inclusion into the price of materials determined in this artificial manner. 33. I would, therefore, hold that the artificial test laid down in the Act to determine sale price of goods in respect of building contracts and the rule prescribing the proportion are clearly not within the power granted to the Legislature and must therefore be declared as ultra vires. The contractors could have been asked to furnish a return of the cost of materials supplied in their contracts in the assessment year. A provision to this end and a further provision for a "best judgment" assessment in case the return was not acceptable would have met the case. But I cannot imagine that the determination of the price of goods involved in such transactions can be made by a rule of thumb applicable in any particular area on the basis of the Commissioner's will. I, therefore, hold section 2(h)(ii) and rule 4 ultra vires. 34. It remains to consider whether the schedule could be amended by a notification by the State Government when the exemption was granted by Act No. XVI of 1949 in respect of goods sold to or by the State Government. Under the Act, the rate at which sales of different commodities have to be taxed is left to the State Government. For this purpose section 6(2) of the Act provides :- "The State Government may, after giving by notification not less than one month's notice of their intention so to do, by a notification after the expiry of the period of notice mentioned in the first notification amend either schedule, and thereupon such schedule shall be deemed to be amended accordingly." The State Government is also granted power under the next section to exempt certain dealers or class of dealers from the payment of the tax. Act No. XVI of 1949 did no more than to introduce into the schedule an exemption in respect of goods sold to Government. It was open to the State Government to amend the schedule under the power granted by the second sub-section of the sixth section. 35. It appears to me that the power to amend the schedule by withdrawing the exemption necessarily flowed from the sixth and the seventh sections taken together and the power was therefore correctly exercised. The amendment of the schedule had the prior authority of the Legislature. It is unfortunate that such notifications are not laid on the table of the House, as is done in England; but I do not find that the State Government exceeded its powers. That did not lead to the repeal of Act No. XVI of 1949 but removed an exemption on the authority of the parent Act. If the schedule as originally framed in the parent Act could be altered - and this is conceded could be done - there is nothing to show why the amended schedule (though amended by another Act) cannot be amended in the like manner. 36. In conclusion I would, therefore, hold that the definition of "sale price" in section 2(h)(ii) of the C.P. and Berar Sales Tax Act, 1947, and rule 4 of the C.P. and Berar Sales Rules, 1947, are beyond the powers of the Legislature, inasmuch as they involve taxation on an artificial basis having no relevance to the price of the goods sold or supplied by a builder. The other impugned provisions I hold to be in order. In this view, the demand for sales tax on the basis of pre-determined proportions must cease and I would therefore order that the writs of mandamus nisi issued be made absolute against the respondents. The respondents must pay the costs of the petitioners. Counsel's fee Rs. 100 in each case. SINHA, C.J. - I agree. Ordered accordingly.