GULATI, J. - (1.) THIS is a statement of the case under section 11(1) of the U.P. Sales Tax Act which has been submitted by the Additional Judge (Revisions) Sales Tax, Agra.
(2.) THE assessee deals in plain and ornamented glass bangles at Firozabad. In respect of the assessment year 1960-61, an assessment was made against the assessee under the Central Sales Tax Act on a turnover of Rs. 2,50,000. It was an assessment under rule 41(5) of the U.P. Sales Tax Rules read with section 9(3) of the Central Sales Tax Act and was a best judgment assessment because the assessee's account books were rejected as unreliable. Later on, as a result of a survey made of the business premises of the firm of M/s. Kunji Lal Har Dayal, it was found that the assessee had purchased from that firm hill (liquid gold used in ornamentation of glass bangles) worth Rs. 5,722 which had not been disclosed by the assessee in the course of original assessment proceedings. On the basis of this information, proceedings were taken against the assessee under section 21 to reopen the assessment for the year 1960-61. The assessee admitted purchases worth Rs. 967.50 only and denied the rest. This plea of the assessee was not accepted by the Sales Tax Officer who estimated the escaped turnover of ornamented glass bangles at Rs. 28,000 and added it to the turnover of inter-State sales as originally assessed. On appeal the Assistant Commissioner (Judicial) upheld the action under section 21 but reduced the estimate of escaped turnover to Rs. 13,000. Both the assessee and the Commissioner applied in revision. The assessee challenged the action under section 21 as also the quantum of turnover. The Commissioner, on the other hand, contended that the appellate authority had reduced the quantum of turnover without any justification. The Judge (Revisions) rejected the assessee's revision but allowed that of the Commissioner in part, inasmuch as he enhanced the quantum of escaped turnover to Rs. 17,000. On an application by the assessee under section 11(1) of the U.P. Sales Tax Act, the Judge (Revisions) has submitted the following questions of law for the opinion of this court : "(1) Whether in the facts and circumstances of the case as found in revision, a presumption could be raised that the suppressed hill was used for making inter-State sales ? (2) Whether from the estimate of turnover due to escaped hill worth Rs. 4,714 and odd, the extra turnover which had been included in the original assessment on best judgment principle was liable to be deducted ? (3) Whether the notice issued under section 21 of the U.P. Sales Tax Act was not legal in view of the omission to mention the escapement of turnover under inter-State sales or whether it was only a clerical mistake which had not prejudiced the applicant at all ?" With regard to question No. (1) the contention of the learned counsel for the assessee is that although an inference could be drawn that the assessee had suppressed the turnover of ornamented glass bangles as a result of the suppression of some purchases of hill, yet such a turnover could not be presumed to be of inter-State sales and as such the same could not be subjected to Central sales tax. According to the learned counsel, in order that a sale should be treated to be an inter-State sale, it must be shown that goods had moved from one State to another in pursuance of a contract of sale. The assessee submits that there is no material or finding in that regard and the assessment had been made merely on a presumption. It appears to us that this question really does not arise out of the revisional order passed under section 10. There is no discussion of any such contention in the revisional order nor indeed was any such contention raised before the Sales Tax Officer or before the appellate authority. In fact the statement of the case submitted by the assessee along with the application under section 11(1) also does not mention that any such contention was raised before the Judge (Revisions). It is settled that in a reference under section 11, only such questions can be referred as arise out of the revisional order. A question which has not been raised before the Judge (Revisions) nor dealt with by him in the order disposing of the revision, cannot be said to arise out of the order of the Judge (Revisions) and as such cannot be referred under section 11 : see Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd. ([1961] 42 I.T.R. 589 (S.C.)).
(3.) IN its application under section 11(1), the assessee sought reference on as many as six questions. Question No. (6) relates to this aspect of the matter and reads as below : "(6) Whether there was any material on record to treat the escaped turnover as inter-State sales liable to tax as defined under section 3 of the Central Sales Tax Act ?" ;