M.R.SHARMA,J. - (1.) THIS judgment will dispose of G. S. T. References Nos. 15 and 17 to 19 of 1974 as a common question of law arises in all of them. The petitioner-firm in these cases is M/s. Amrit Roller Flour Mills, Industrial Area, Chandigarh (hereinafter referred to as the petitioner-firm), a firm which holds a licence under the Wheat Roller Flour Mills (Licensing and Control) Order, 1957 (hereinafter referred to as the 1957 Order ). The petitioner-firm is also registered as dealer under the Punjab General Sales Tax Act, 1948 (hereinafter called the Act ). The petitioner-firm is supplied wheat under the orders of the Government of India which it grinds and sells the various products like atta, maida and suji on permits issued by the District Food and Supplies Officer. The Excise and Taxation Officer, Chandigarh, framed an assessment against the petitioner-firm for the year 1964-65 and calculated the total sales tax liability of the firm at Rs. 26,459. 00. After giving the allowance for the tax already paid, the Assessing Authority demanded a sum of Rs. 1,439. 70 as sales tax from the petitioner-firm. Before the Assessing Authority an argument was raised on behalf of the petitioner-firm that it sold the wheat products against the permits issued by the Government and, as such, the deals struck by the firm with the recipients of the supplies of wheat products could not be regarded as sales. This argument was turned down by the Assessing Authority on the basis of a Division Bench decision of this Court in Excise and Taxation Officer (Assessing Authority), Hissar v. Jaswant Singh [1971] 27 S. T. C. 582. The appeal filed by the firm before the Deputy Excise and Taxation Commissioner, Chandigarh, was dismissed on 22nd January, 1969 and the second appeal taken before the Chairman, Sales Tax Tribunal, Chandigarh, met the same fate on 30th June, 1971. At the instance of the assessee, this court directed the Chairman, Sales Tax Tribunal, Chandigarh, to refer the following question of law to us for our opinion : Whether, on the facts and in the circumstances of the case, the sale of wheat products against permits issued by the District Food and Supplies Controller, Chandigarh, is liable to be taxed under the Punjab General Sales Tax Act, 1948 ?
(2.) APPARENTLY , the answer to the question depends upon a finding whether there is any room for consensus to be arrived at between the dealer and the recipients of food products or not. The 1957 Order has been framed by the Central Government under Section 3 of the Essential Commodities Act, 1955. Clause 3 of this Order lays down that no owner or person in-charge of a roller mill shall manufacture, or cause to be manufactured, any wheat product except under and in accordance with the terms and conditions of a licence issued under this Order. Clause 4 (2) of this Order lays down that the licence issued shall be in form II. Clause V of form II reads as under : The licensee shall abide by any directions issued by the licensing authority in regard to the purchase of wheat, extraction of maida, sooji and rawa and also in regard to the distribution or disposal of wheat products. It is trite to say that any violation of the licence apart from being amenable to other action under the 1957 Order is punishable as an offence under Section 7 of the Essential Commodities Act.
(3.) THE cumulative effect of the aforementioned provisions is that the petitioner-firm is not only obliged to follow the instructions of the concerned authority in regard to the purchase of wheat or extraction of other products therefrom but also in regard to the distribution and disposal of such products. The learned counsel for the respondent has very fairly conceded this position. In order to constitute a transaction of sale the following elements must be present: (1) Parties should be competent to contract. (2) There should be mutual assent. (3) Property or goods should pass from the seller to the buyer. (4) The price in money should be paid or promised. Unless and until all the four elements are present in a transaction, it cannot be regarded as a sale. When viewed in this light, it is obvious that the deals between the petitioner-firm and the recipients of the products of wheat produced by it cannot be regarded as transactions of sale. In Jaswant Singh's case [1971] 27 S. T. C. 582, which has been relied upon on behalf of the revenue, the court was concerned with the provisions of the Punjab Control of Bricks Supplies Order, 1956 and it observed : Considering the provisions of the Control Order referred to above, it cannot be held that the dealings in question were controlled at every stage leaving no room for consensus.;