Bishambhar Dayal, C.J.
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.
4. It is, therefore, necessary to look at the relevant part of Section 44 of the Act which authorizes a reference. It runs thus:
44. (1) Within sixty days from the date of communication by the Tribunal of any order under Sub-section (2) of Section 38 or Sub-section (3) of Section 39 affecting the liability of any dealer to pay tax, such dealer or the Commissioner may, by application....
There is no dispute that the impugned orders by the Tribunal are under Section 39(3). The decision must turn upon the interpretation of the phrase 'affecting the liability of any dealer to pay tax'. This phrase expressed in another language is equal to saying 'having effect on the liability of any dealer to pay tax'. Therefore, before the impugned order was passed, there must have been a liability of the dealer to pay tax which is affected by the impugned order. Now, the phrase 'liability to pay tax' can be used in two senses. Firstly, it may refer to the primary liability of any assessee to be assessed to tax which takes place as soon as the taxing event has occurred. This liability is determined by the legislation and the existence of relevant circumstances. If such a liability arises, it cannot be affected by any judgment of any Tribunal. A Tribunal may rightly or wrongly hold that ail assessee is liable or not liable. But the basic fact cannot be altered that the liability was in fact incurred. Such a liability could be affected only by a change of legislation.
5. In the second place, the phrase 'liability to pay tax' is used in the sense that after a particular amount is assessed against an assessee, he becomes liable to pay that tax. In this sense, since the amount has been determined by an order of a Tribunal, that liability can be affected by another order either by decreasing or increasing that liability. To our mind, the phrase 'affecting the liability of any dealer to pay tax' used in Section 44 has been used in this second sense, and the intention of the Legislature is that unless the impugned order alters the tax payable by any assessee, no reference is competent. In Chatturam Horilram Ltd. v. Commissioner of Income-tax  27 I.T.R. 709 at p. 716 (S.C.), their Lordships of the Supreme Court observe:
Liability does not depend on assessment. That, ex hypothesi, has already been fixed. But assessment particularizes the exact sum which a person liable has to pay.
Their Lordships, therefore, recognize that first there is that primary liability which is not dependent on any subsequent orders of assessment and then after assessment there arises the liability to pay the tax assessed. We are of opinion that in Section 44 it is the second liability which is created by assessment and which can be affected by subsequent orders in appeal or revision that is spoken of.
6. Learned counsel appearing for the assessee drew our attention to the language of Section 52 of the M.P. General Sales Tax Act. The relevant part of the language on which learned counsel relied is in the proviso after Sub-section (1-a) and may be quoted as follows:
Provided that such repeal shall not affect...any...liability already...incurred....
Learned counsel contended that in this phrase the liability mentioned is necessarily the primary liability to be taxed under the Act, and the language of Section 44 must also be read in the same light. We are unable to agree with this contention. Section 52 is a saving section and deals with the effect of subsequent legislation after the repeal of the earlier one. In this context, since the subsequent legislation could affect the primary liability also created by the earlier legislation, the two sections are not in pari materia. Moreover, the language of Section 52 quoted above is not the same. In Section 52 the. words are 'liability already incurred'. The phrase used in Section 44 is ''liability of any dealer to pay tax'. This language points to the payment of specified amount of tax.
7. Learned counsel appearing for the assessee brought to our notice a case reported in Commissioner of Sales Tax v. Minerva Minerals  25 S.T.C. 64 (S.C.), where certain questions had been referred to this court under Section 44 of the M.P. General Sales Tax Act against an order of remand and those questions were answered. Ultimately, an appeal was also taken to the Supreme Court and there also the merits of the case were considered. Throughout, the question of non-maintainability of the reference was neither raised nor considered. We, therefore, do not take this case as an authority for the proposition that a reference lies even against an order of remand where there is no question of any pre-existing liability to pay tax having been affected by the impugned order.
8. We may also refer to The Commissioner of Sales Tax, M.P. v. Dr. Ramkumarsingh Miscellaneous Civil Case No. 353 of 1967 decided on 31-10-1969. In that case a reference had been made to this court for answering certain questions arising out of a remand order. A Division Bench of this court, of which one of us (B. Dayal, C.J.) was a member, refused to answer the questions on the ground that no final assessment having been made, no liability to pay tax had been affected. A petition for special leave to appeal against this order was taken to the Supreme Court and their Lordships rejected the same by order dated 26th February, 1970 (Petition for special leave to appeal (Civil) No. 266 of 1970). It is true that in the operative part of the order of the Supreme Court it is mentioned that it was dismissed as withdrawn.
9. In the result, therefore, we are of opinion that these references are incompetent. The papers are accordingly returned to the department. Parties will bear their own costs.