AGARWAL, J. - (1.)BY order dated 24th November, 1970, the Board of Revenue has referred the following questions for the opinion of this Court, under section 15 of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as the Act) : " 1. Whether the Board has jurisdiction to entertain revision against the notice of demand ? 2. Whether the notice of demands is in order ? 3. Whether the Board rightly stayed the recovery of demand notwithstanding the bar of entertaining the revision under the second proviso to sub-section (2) of section 14 of the Rajasthan Sales Tax Act ?"
(2.)ACCORDING to the aforesaid order of the Board of Revenue, the said questions arise out of the order dated 12th March, 1970, passed by the Board of Revenue. We have heard Shri K. K. Sharma, the learned counsel for the applicant, and Shri S. M. Mehta, the learned counsel for the opposite party.
A preliminary objection has been raised by Shri Mehta against the maintainability of the reference on the ground that the questions which have been referred by the Board of Revenue do not arise out of the order of the Board of Revenue dated 12th March, 1970. In this connection, Shri Mehta has invited our attention to the order dated 12th March, 1970, passed by the Board of Revenue. A perusal of the aforesaid order of the Board of Revenue dated 12th March, 1970, shows that by the said order the learned Member of the Board of Revenue had passed an interim order in the revision petition filed by the opposite party whereby the proceedings for the recovery of Rs. 29,404. 79 from the opposite party were stayed and a notice was given to the State to appear and show cause on 8th May, 1970. It would, thus, appear that the aforesaid order dated 12th March, 1970, was only in the nature of interim order passed ex parte and a final order was to be passed after hearing the opposite party. From the record, it is not clear as to whether anybody appeared on behalf of the applicant before the Board of Revenue on 8th May, 1970, or on any subsequent date. We, however, find that on 8th July, 1970, an application was moved by the applicant before the Board of Revenue under section 15 of the Act for referring to this Court the questions arising out of the order of the Board of Revenue dated 12th March, 1970.

Section 15 of the Act makes provision for reference to this Court for its opinion questions of law arising from an order passed by the Board of Revenue. The expression "question of law arising out of order" was also contained in section 66 of the Indian Income-tax Act, 1922. The said expression came for construction before the Supreme Court in Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589 (SC ). In the said case, the Supreme Court, after considering the various decisions on the subject, has summed up the position as under : " (1) When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order. (2) When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order. (3) When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order. (4) When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it. "

Applying the aforesaid tests laid down by the Supreme Court if the order of the Board of Revenue dated 12th March, 1970, is examined, it must be held that the present case falls within proposition No. (4) laid down above, because in the present case the questions which have been referred to this Court for opinion, were neither raised before the Board of Revenue, nor were they considered by it in its order dated 12th March, 1970. It must, therefore, be concluded that the questions of law which have been referred to this Court do not arise out of the order of the Board of Revenue dated 12th March, 1970.

In the circumstances, the preliminary objection raised by Mr. Mehta must be accepted and it must be held that the reference is incompetent and it is disposed of accordingly. There will be no order as to costs. Reference disposed of accordingly. .