A.P.SEN, J. - (1.) THESE three reference applications filed by the Commercial Taxes Officer, Special Circle -I, Jaipur for requiring the Board of Revenue to state a case, raise common question and, therefore, they are disposed of by this common order.
(2.) THE following facts are taken from the order of the Board of Revenue : M/s Assam Roller Flour Mills, Jaipur, which will hereinafter be referred to as 'the assessee', is a registered dealer for purposes of the Rajasthan Sales Tax Act, 1951 and is engaged in milling wheat into flour, maida and suji Toe assessee was required to supply flour, maida and suji and bran under the orders of the D strict Supply Officer, Jaipur, purported to have been issued under the provisions of the Rajasthan Food Grains Licensing Order, 1964 to the permit holders in, whose favour permit was granted by the District Supply Officer. The assessee could not supply its milled products to any -body who did not hold a permit from the District Supply Officer, Jaipur and it was prohibited from disposing of its milled stock except at the control rates fixed by the permit granting authority. The point of determination, as formulated by the Board of Revenue, was whether the disposal of the flour, maida, suji and bran by the assessee in such circumstances, tantamount to sale and consequently sales tax is attracted to such transactions under the provisions of the Rajasthan Sales Tax Act. 1954. The Boat d of Revenue guided by the principles laid down by the Supreme Court in the State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd. (1958) 9 STC 353. The New India Sugar Mills Ltd. v. Commissioner of Sale -tax Bihar (1963) 14 STC 316 and Chittarmal Naraindass v. Commissioner of Sales Tax, U.P. (1970) 26 STC 344, observed: The essential elements constituting a sale in accordance with the provisions of the Sales of Goods Act, 1930 do not exist in the present case and so the transaction entered into by the applicants cannot be deemed to be a sale as defined in Section 2(o) of the Rajasthan Sales Tax Act 1954. There is so volition to contract and there is no mutuai asset in the present case and the permit granting authority has not given any freedom to the applicants to enter into contract.... The Board of Revenue then concludes, stating: Consequently, relying on (1963) 18 STC 316 and (1970) 26 STC 344 we held that there has been no sales as in the transactions conducted by the applicants in the present case and herce they are not liable to pay sales tax under the provisions of the Rajasthan Sales Tax Act, 1954. The Board has nowhere referred to the later decision of a larger Bench of the Supreme Court in Salar Jung Sugar Mills Ltd. v. State of Mysore and Ors. (1972) 29 STC 246.
(3.) IN declining to make a reference, the Board of Revenue states that no doubt there is a point of law involved, but the legal position was clear in view of the decision of the Supreme Court in Chhittarmal Naraindass v. Commissioner of Sales Tax (1970) 26 STC 344 and the Division Bench of the Board felt no doubt about it and, therefore, it did not feel the necessity of making a reference to the High Court; We are satisfied that the Board of Revenue was not justified In refuting to make a reference. When a question of law arises, the Board is bound to draw a statement of the case and refer the question to the High Court for its opinion.;