A.P. Sen, J. - (1.) These are two reference applications. One by the Commercial Taxes Officer, Special Circle II. Jaipur is under Sec. 15(3A) of the Rajasthan Sales Tax Act, 1954 The other by the assessee M/s. Poddar Spinning Mills Ltd., Jaipur is under Sec. 15 (2)(b) of the Act. The assessee is engaged in the business of manufacturing and selling yarn and is a registered dealer both under the Central Sales Tax Act. 1956 and the Rajasthan Sales Tax Act, 1954. During the assessment year 1968 69 the assessee sold two generation sets on foundation for a sum of Rs. 6,00,000/ - to M/s. Swan Mills Ltd., Bombay. The two generating sets which were embedded in the foundation of the Mills were removed by the purchaser at their own expenses and taken to Bombay. According to the assessee, when the position of electricity had considerably eased, its two generating set a had become surplus because electricity from the Rajasthan State Electricity Board was easily available and was much cheaper as compared to that generated by the generating sets. The contention was that the occasional sale of its capital goods could not attract the tax, as the assessee did not deal in generating sets as part of its business. In other words, it was urged that the sale proceeds were not liable to be included in its turnover. The Commercial Taxes Officer, however, negatived the contention of the assessee and brought the sale of the two generating sets to tax at 6%, treating the sale as within the State of Rajasthan.
(2.) The appeal of the assessee to the Deputy Commissioner (Appeal) failed. Being aggrieved, the assessee preferred a revision before the Board of Revenue.
(3.) In revision, it was contended on behalf of the assessee that the transaction was not a sale of movable property, but being the sale of generating sets sold on foundation, was a sale of immovable property and hence no sales tax could be imposed under the Rajasthan Sales Tax Act. The other contentions were that no tax could be attracted on the transaction as the same was not effected by the assessee in the course of business; and that in the alternative, no tax thereon could be imposed under the provisions of the Rajasthan Sales Tax Act since the sale was in the course of inter -State trade and commerce. The first two contentions urged on behalf of the assessee failed, but the third was accepted by the Board of Revenue. Hence both the Commercial Taxes Officer as well as the assessee applied to the Board of Revenue under Sec. 15(1) of the Act requiring it to draw a statement of the case and refer to this Court certain questions of law arising from its order. The Board declined to refer the case at the instance of the assessee on the ground that no question of law arises and, therefore, the assessee has applied under Sec. 15(2)(b). The Board, however, failed to dispose of the application filed by the Commercial Taxes Officer within a period of 180 days as required under Sec. 15(1) and, therefore, the authority has moved an application under Sec. 15(3A).;