GULATI, J. - (1.) THIS is a reference under section 11(1) of the U.P. Sales Tax Act at the instance of the assessee.
(2.) THE assessee is the Khurshed Bagh Co-operative Housing Society Ltd., Lucknow, which is a society registered under the Co-operative Societies Act (No. 2 of 1912). The assessment year involved is 1957-58. The dispute relates to the sales tax levied upon the turnover of bricks which the assessee is alleged to have sold to its members during the assessment year in question. The case of the assessee throughout has been that a brick-kiln had been set up not with the funds of the assessee-society but with the contributions made by some members, who wanted bricks for the construction of their houses and that the society merely acted in a supervisory capacity and distributed the bricks to its members after they had been prepared without charging any profit or commission. The Sales Tax Officer disregarded the plea of the assessee and passed an assessment order against the assessee levying sales tax on the turnover of bricks. On appeal the appellate authority annulled the assessment order taking the view that the supply of bricks made by the society to its members did not amount to sale, because the members who formed the society could not sell their goods to themselves. On a revision petition presented by the Commissioner of Sales Tax, the Judge (Revisions) reversed the order of the appellate authority holding that the assessee was liable to sales tax and the assessment made against it by the Sales Tax Officer was valid and proper. At the instance of the assessee the Judge (Revisions) has submitted this statement of the case for the opinion of this court on the following question of law : "Whether under the circumstances of this case the applicant effected sale of bricks to its members as a 'dealer' in the regular course of business ?" When the reference came up for hearing before a Bench of this court of which one of us (Honourable Gulati, J.) was a member, it was felt that the statement of the case was not complete so as to enable it to answer the question referred for its opinion. The Bench found that in the statement of the case the Judge (Revisions) had mentioned that the assessee was a society registered under the Societies Registration Act of 1860, whereas the Judge (Appeals) in this appellate order had stated that the assessee was a society registered under the Co-operative Societies Act. In its application under section 11(1) also the assessee had stated that it was a co-operative housing society registered under the Co-operative Societies Act (No. 2 of 1912). The Bench accordingly directed the Judge (Revisions) under section 11(4) of the Act to submit a definite statement as to whether the assessee was a society registered under the Co-operative Societies Act, 1912, or under the Societies Registration Act, 1860, or under both.
(3.) IN the supplementary statement submitted by the Judge (Revisions) it has now been definitely stated that the society was registered under the Co-operative Societies Act, 1912.;