NARASIMHAM, J. - (1.)THE following question has been referred to this Court under section 24(3) of the Orissa. Sales Tax Act, by the Member, Sales Tax Tribunal, Orissa, in pursuance of a direction given by this Court under section 24(2) of that Act :-
"Whether in the facts and circumstances of this case, the Tribunal is right in holding that the appellant was not liable to pay tax on sales of goods supplied by the Textile Marketing Organization".

(2.)THE Government Handloom Textile Marketing Organization is a concern run on a commercial basis by the Government of Orissa, with its headquarters at Cuttack. Its business is to sell handloom products produced at various centres in Orissa. The opposite party K. C. Mohapatra (hereinafter referred to as the assessee) is the proprietor of a shop known as Lakshmi House near Lion's Gate in Puri town. He carried on his own independent, business of selling various kinds of textile goods and he was registered as a "dealer" and used to pay sales tax in respect of those sales.
In addition to this business, the opposite party was also selling the goods of the Textile Marketing Organization and the question arose as to whether he was liable to pay sales tax in respect of those sales. By his order dated the 11th February, 1960, the Additional Member, Sales Tax Tribunal, held that there was no "sale" as between the Textile Marketing Organization, on the one hand, and the assessee on the other, in respect of those goods and that he was also not a commission agent of the Textile Marketing Organization. Hence he held that he was not liable to pay sales tax. Though the finding is not very clear it appears that the learned Tribunal was of the view that the assessee was merely an ordinary agent carrying on the business of the Textile Marketing Organization of selling its goods in Puri town and that in respect of those transactions he had no independent status. He relied on a decision of the Nagpur High Court in Kalyanji v. Tika Ram (A.I.R. 1938 Nag. 254.), which has been followed in a Madras decision in Radhakrishna Rao v. Province of Madras ([1952] 3 S.T.C. 121.).

(3.)THE material facts found by the Tribunal are as follows :- The Textile Marketing Organization used to supply the goods in question to the assessee from time to time. That Organization maintained a separate personal ledger account in the name of the assessee in which the goods supplied to him and the moneys received by him, were debited and credited. The cash memos of the Textile Marketing Organization were also supplied to the assessee who used to issue them to the various purchasers of the goods from his shop known as Lakshmi House. But the labels of the Textile Marketing Organization, pasted on the goods, were taken out by him and he affixed his own labels, describing himself as "Lakshmi House, agent of the Textile Marketing Organization". The sale prices actually received by the assessee from the various purchasers were remitted by him at regular intervals to the Textile Marketing Organization who used to send a supervisor periodically to verify the stock of goods in the assessee's possession and report about the same. After annual audit the assessee was given 5 per cent. commission on the total sales effected by him, on behalf of the Textile Marketing Organization. In the affidavit filed by the assessee before this Court on the 10th October, 1961, it is admitted that this commission covered not only his remuneration as an agent but also actual expenses incurred by him towards payment of house rent, lighting charges, etc., for that portion of the assessee's shop where the goods of the Textile Marketing Organization were stocked and sold. It further appears from the order of the Assistant Collector of Sales Tax that a copy of the written agreement between the parties was kept in the assessment record, but that was not taken into consideration by him. Before the Additional Member, Sales Tax Tribunal, also, neither party relied on the terms of the agreement with a view to ascertain the precise nature of the relationship between the assessee and the Textile Marketing Organization.