- (1.)THIS order will also govern the disposal of Miscellaneous Civil Cases Nos. 134 and 135 of 1969. These are three connected references under Section 44 of the Madhya Pradesh General Sales Tax Act. In all these cases the Board of Revenue by its ultimate order directed a remand of the case to the assessing officer after giving its opinion on question of law to take fresh proceedings for assessment.
(2.)THE facts may shortly be stated as follows: The assessee was a members' club in Balaghat. It purchased liquor which is alleged to have been for consumption by its members. For the three periods which are in question in the three matters the Assistant Sales Tax Officer assessed the sales tax payable by the assessee. The assessee, however, contended that it was not a dealer at all and could not be assessed. The assessee filed an appeal before the Appellate Assistant Commissioner who agreed with the assessee and held that the assessee not being a dealer could not be assessed. He set aside the order of the Assistant Sales Tax Officer. This order was revised by the Commissioner of Sales Tax under Section 39 (2) of the Act. The Commissioner after giving notice to and hearing the assessee came to the conclusion that the assessee could not escape assessment. He remanded the case by his order dated 23rd December, 1965, for determination of certain facts and levy of tax under Section 7 of the M. P. General Sales Tax Act and penalty under Section 10a of the Central Sales Tax Act. Against that order an appeal was filed before the Tribunal, which was the Board of Revenue. The Board of Revenue again discussed different aspects of law and upheld the order of remand adding some more reasons why the assessee should be liable to assessment of tax. Against these orders of remand the present references have been made and the questions which have been referred relate to the jurisdiction of the Commissioner to revise the order of the Assistant Commissioner under Section 39 (2) of the Act and whether the club was a dealer and, therefore, liable to tax.
(3.)BEFORE entering upon the merits of these questions which have been referred, a preliminary objection was raised by the State counsel on behalf of the non-applicant that no reference lay against an order which did not "affect the assessee's liability to pay tax". His contention was that in this case since the order merely remands the case for making an assessment, there was no pre-existing liability to pay tax which this order could affect. On the contrary, the contention of learned counsel for the assessee is that since the Board of Revenue has expressed the opinion that tax was leviable under the Act, the expression of that opinion affects the assessee's liability to pay tax and consequently a reference is competent.