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TMI Blog1954 (6) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ndji, In re(1) regarding the nature and incidents of a Pakka adat transaction. 3.. Whether the facts found do or do not bring the assessee within certain provisions of the taxing statute or its statutory rules is un- doubtedly a question of law. The interpretation of the agreement in question to determine the jural relation of the assessee and the so-called agent, and the admissibility of the bills issued subsequently to interpret the agreement are unquestionably questions of law. There is consider- able force in the contention of the learned counsel for the assessee that the Board of Revenue has erred in the interpretation of the agreement in the light of the relevant law. He contends that clause 5 of the agree- ment is wrongly construed and in construing that clause the Board (1) [1952] 3 S.T.C. 263; [1951] N.L.J. 516. failed to take into consideration clause 2, that proper effect was not given to clause 8 and the agreement has not been interpreted as a whole, and that even on the reasoning adopted by the Board the assessee was entitled to a relief. I am of course not expressing any opinion on these contentions. I have adverted to them to indicate that questions of law do arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usal to make a reference is justified. According to him, the questions of law arising in this case are fully answered in Messrs Shriram Gulabdas v. The Board of Revenue(1). That case was decided after the Board of Revenue refused to make a reference in the instant case. Refusal to make a reference cannot, therefore, be said to be justified because the questions of law can now be answered in a particular way by relying on this decision. In my view, before applying the ratio in the case cited, the several questions of law arising in the case, as indicated above, would first have to be decided. 5.. Where on an application under section 66(1) of the Income-tax Act, the Commissioner refuses to state the case on the ground that the question arising in the case is a settled question of law, it amounts to saying that no question of law arises within the meaning of that sec- tion; and the High Court may require the Commissioner to state the case and to refer it: Lakshmi Pat Mahadevi Garu v. Commissioner of Income-tax(2). In refusing to make the reference on the ground that the question of law was well-settled, the Commissioner had there relied on a decision of the Privy Council and anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay(1). 7.. A decision by the Board of Revenue on a question of law is not final. Whether that decision is correct or not is irrelevant. When the Board decides a case it necessarily believes it to be a correct decision. But if questions of law arise out of its decision, it is the duty of the Board to state and refer the case to the High Court for final decision on the questions of law involved. Facts in any two cases are rarely iden- tical. Consequently, whether those facts bring an assessee within the provisions of a taxing statute or its statutory rules may have to be differently decided. It must be remembered that the final authority on questions of law arising on the facts of any assessment case under the Sales Tax Act is the High Court and not the Board of Revenue. It, therefore, follows that the Board of Revenue has to draw up the state- ment of the case and refer it to the High Court whenever questions of law do arise out of its order under section 22(5) of the Act, except where the law is well-settled, so far as this High Court is concerned, by a decision of the Supreme Court. As observed in Nemkumar Kesri- mal v. Board of Revenue(2) to which I was a party, The Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34,217-14-3 can be included in the taxable turnover". 10.. The application is allowed with costs. Counsel's fee Rs. 100, if certified. MANGALMURTI, J.-I agree with my learned brother that the refusal of the Board of Revenue to make a reference in this case was not justified and concur in the order proposed by him. As however I do not agree with him on some of the points discussed by him in his opinion, I am writing this separate opinion only to indicate that difference. I am, however, not expressing any definite opinion on the points of difference as it is not necessary to do so for the purpose of this case and as they were not fully argued before us. 2.. My learned brother seems to be of the opinion that whenever a question of law arises out of the order passed by the Board of Revenue under sub-section (5) of section 22 of the Central Provinces and Berar Sales Tax Act, 1947, it is bound to refer it to the High Court "except where the law is well-settled, so far as the High Court is con- cerned, by a decision of the Supreme Court". I am not convinced that this view agrees with the wordings of sub-sections (1), (2) and (3) of section 23 ibid. Under sub-section (1) ibid the dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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