V.Bhargava, J. - (1.) The following three questions have been referred for our opinion by the Judge (Revisions) Sales Tax, U.P. (1) Whether an order passed under Section 5 is an assessment appealable under Section 9 of the U.P. Sales Tax Act ? (2) Whether it is sufficient for a claim under Section 5 that goods are delivered outside the State of Uttar Pradesh irrespective of the questions whether the sale was subject to the condition that title would not pass to the buyer until delivery was effected outside the State of Uttar Pradesh and whether the party taking delivery of the goods from the mills was not the party buying the goods from the mills; and, (3) Whether on the facts and circumstances of the case the assessee was entitled to a rebate of the tax on the sales of sugar which was despatched to Gaya outside the State of Uttar Pradesh.
(2.) The statement of the case submitted by the Judge (Revisions) Sales Tax gives the facts which according to him are relevant for answering these questions of law. The assessee claimed a rebate under Section 5 on sales of sugar delivery of which, according to the assessee, was made outside the State of Uttar Pradesh. A part of the claim was disallowed by the Assessing Authority, who held that in those cases rebate could not be allowed as the bill had been drawn in the account of a party residing within Uttar Pradesh. The assessee went up in appeal before the Judge (Appeals) Sales Tax, but the appeal was dismissed on the ground that no appeal under Section 9 of the U.P. Sales Tax Act lay against the order. Thereafter the assessee went up in revision. The learned Judge (Revisions) agreed with the view of the Judge (Appeals) that no appeal lay and consequently upheld the order of the Judge (Appeals) dismissing the appeal. At the same time the learned Judge went into the merits to find out whether the order of the Assessing Authority was correct and after recording his findings upheld the order of the Assessing Authority. Thereupon, the assessee moved the Judge (Revisions) to make a reference to this Court which was refused. The assessee finally moved this Court which directed the Judge (Revisions) to submit a. statement of the case after framing proper questions of law and the Judge (Revisions) has framed the three questions mentioned above.
(3.) Having heard learned counsel for the parties, we consider that the first and the third questions have been properly and correctly framed and should be answered by us, but the second question does not arise in the present case as the facts which are assumed in that question have not been found at any stage by the Judge (Revisions) nor are such necessary facts given in the statement of the case. We, therefore, consider that the second question should not be answered by us at all and we therefore refuse to answer it.;