Judgment Ramaswami, J. 1. In this case the petitioner is a limited company incorporated under the Indian Companies Act which undertakes and executes building contracts and other architectural contracts. On the 14th September, 1955, the petitioner received a letter from the Tata Iron and Steel Company Limited, Jamshedpur, asking the petitioner to tender a lump sum quotation for constructing about 90 bungalows according to certain specifications. In reply to this letter the petitioner submitted a tender for constructing 90 bungalows for a lump sum of about Rs. 57,86,500 on the forms and general conditions supplied. On the 21st of December, 1955, the Tata Iron and Steel Company Limited accepted the petitioners tender and asked the petitioner to deposit a security of 2 per cent of the amount of the tender. After depositing the security the petitioner proceeded to execute the lump sum contracts for construction of the bungalows. On the 25th of April, 1956, the Superintendent of Commercial Taxes, Jamshedpur, issued a notice under Sec.13 of the Bihar Sales Tax Act calling upon the petitioner to produce books of account etc. The petitioner objected that no sales tax was payable as there was a lump sum building contract, but the objection was rejected by the Superintendent of Commercial Taxes and on the 27th of November, 1956, an assessment order was made imposing sales tax of Rs. 29,494 and odd and a penalty of Rs. 5,000 in addition. The petitioner has applied for grant of a writ under Article 226 of the Constitution to quash the proceedings taken under Sec.13 of the Bihar Sales Tax Act against the petitioner and also for quashing the assessment of sales tax on the ground that the Bihar Legislature has no constitutional authority to impose sales tax on the supply of materials used in building contracts. 2. In support of the application learned Counsel submitted that the principle of the decision of the Supreme Court in State of Madras V/s. Gannon Dunkerley and Company (Madras) Limited [1958] 9 S.T.C. 353 at p. 387 applies to this case and that proceedings under the Sales Tax Act and the assessment of sales tax made against the petitioner may be quashed by a writ. It was pointed out that the Superintendent of Commercial Taxes made the assessment of sales tax on the basis that there was a building contract and the cost of labour has been excluded from the total value of the work and the balance of the value of the contract, namely, Rs. 9,83,148, has been taken as the basis for assessment of sales tax. But the difficulty in this case is that the formal contract between the parties has not been produced. Only the tender of the petitioner has been produced, but the general conditions of the contract, standards of execution and special conditions of the contract have not been produced on behalf of the petitioner in this case. In the absence of the formal contract it is difficult for me to say whether this case comes within the principle laid down by the Supreme Court in State of Madras V/s. Gannon Dunkerley and Company (Madras) Limited [1958] 9 S.T.C. 353. It is possible that the parties may have entered into distinct and separate contracts, one for the transfer of materials for money consideration and the other for payment of remuneration for services and for work done. In such a case there would be really two agreements, though there is a single instrument embodying them, and the power of the State to separate the agreement to sell from the agreement to do work and render service and to impose a tax thereon cannot be disputed. The legal position is made clear by Venkatarama Aiyar, J., who pronounced the judgment of the unanimous Bench in State of Madras V/s. Gannon Dunkerley and Company (Madras) [1958] 9 S.T.C. 353, at p. 387 as follows: To avoid misconception, it must be stated that the above conclusion has reference to works contracts, which are entire and indivisible, as the contracts of the respondents have been held by the learned Judges of the Court below to be. The several forms which such kinds of contracts can assume are set out in Hudson on Building Contracts, at page 165. It is possible that the parties might enter into distinct and separate contracts, one for the transfer of materials for money consideration, and the other for payment of remuneration for services and for work done. The several forms which such kinds of contracts can assume are set out in Hudson on Building Contracts, at page 165. It is possible that the parties might enter into distinct and separate contracts, one for the transfer of materials for money consideration, and the other for payment of remuneration for services and for work done. In such a case, there are really two agreements, though there is a single instrument embodying them, and the power of the State to separate the agreement to sell from the agreement to do work and render service and to impose a tax thereon cannot be questioned, and will stand untouched by the present judgment. 3. In my opinion, the proper order to be passed in this case is to quash the assessment order dated the 27th November, 1956, against the petitioner and to direct that the case should go back to the Superintendent of Commercial Taxes for fresh investigation of facts by an examination of the formal contract and other documentary evidence to be produced by the petitioner. It will be for the Sales Tax Authorities to determine whether the contract between the parties upon its true construction is a lump sum contract or whether it is a combination of two agreements, namely, an agreement to sell and an agreement to work, and if the authorities come to the conclusion that such is its character then it would be open to them to proceed against that part of the contract which is contract for sale of goods and impose a tax thereon. The order that I propose to make is on similar lines to the order made by the Supreme Court in Pandit Banarsi Das Bhanot and Ors. V/s. State of Madhya Pradesh and Ors. [1958] 9 S.T.C. 388. 4. Acting in exercise of the authority conferred by Article 227 of the Constitution I would allow the application, set aside the order of assessment dated the 27th November, 1956, made by the Superintendent of Commercial Taxes and direct that the case should go back to the Superintendent of Commercial Taxes for further investigation of facts and for bringing to conclusion the proceedings under Sec.13. of the Sales Tax Act taken against the petitioner in accordance with law. I would accordingly allow this application but there will be no order as to costs. Choudhary, J. 5 I agree.