R.K. Vijayvargiya, J.
1. By this reference under Section 13 of the Madhya Bharat Sales Tax Act (hereinafter referred to as the Act), the following question of law has been referred for the opinion of this Court:
Whether, in the facts and circumstances of this case, the applicant was liable to payment of sales tax, both as a resident as well as non-resident company and if not then in what capacity
2. The facts giving rise to this reference as set out in the statement of the case are as follows :
The applicant dealt in lubricants, kerosene, etc., and it had its registered place of business at Mhow and branches at Indore, Ujjain, Ratlam and Gwalior in the erstwhile State of Madhya Bharat. The applicant sold goods ex-stock at the aforesaid places of business in the State of Madhya Bharat. These transactions were recorded in the account books of these places and the sales were intra-State sales in Madhya Bharat. The applicant had permission to file a consolidated return for all the sales effected by it in Madhya Bharat. The applicant also supplied goods to the buyers from its refinery at Bombay and the goods were delivered to the buyers in the State of Madhya Bharat. Thus, there were two types of sales of goods by the applicant; firstly, on orders placed inside the State on the branches or the main place of the business of the applicant and the goods were also supplied from these depots to the buyers. These were intra-State transactions and there was no element of inter-State sale in them. In the second set of transactions orders were placed to the applicant in Bombay against which goods were actually delivered to the buyers in Madhya Bharat by the applicant from Bombay. The actual delivery took place in the State of Madhya Bharat for purposes of consumption. These transactions were sales in the course of inter- State trade and commerce, but as a direct result of these sales goods were actually delivered from Bombay to the buyers for eventual consumption in the State. There is no dispute in regard to the nature of these transactions. The second category of the transactions stated above were explanation sales in the actual delivery-cum-consumption State, that is, in Madhya Bharat. They were fictional intra-State sales in Madhya Bharat and outside sales in Bombay notwithstanding the fact that the property in these goods passed under the Indian Sale of Goods Act in the State of Bombay. They were intra-State sales in Madhya Bharat and as per the judgment of the Supreme Court in the case of State of Bombay v. United Motors [1953J 4 STC 133 (SC). In view of the later judgment of the Supreme Court in the case of Bengal Immunity Co. Ltd. v. State of Bihar  6 STC 446 (SC) they were intra-State sales in the State of Madhya Bharat but were also in the course of inter-State trade and commerce hit by article 286(2) of the Constitution.
3. In view of the earlier judgment of the Supreme Court in the United Motors' case  4 STC 133 (SC), the State of Madhya Bharat had created a non- resident circle for registration and licensing of non-resident dealers supplying goods by actual delivery in Madhya Bharat for eventual consumption therein. The non-resident dealers liable to tax on such transactions were assessable by the Sales Tax Officer, Non-resident Circle, with the headquarters at Gwalior. Because of the later judgment in Bengal Immunity Co. Ltd. v. State of Bihar  6 STC 446 (SC) such transactions could not be subjected to tax as they were also in the course of inter-State trade and commerce. As most of the dealers had already recovered tax and deposited the same in their turn in respective State Government treasuries, during the period intervening the two judgments of the Supreme Court the Parliament enacted the Sales Tax Laws Validation Act authorising the States to levy tax on such inter-State sales which took place in the taxing State either by virtue of article 286(1)(a) read with explanation thereto or under article 286(2) of the Constitution. In view of this the fictional intra-State sales effected by the applicant as non-resident dealer were subjected to tax where taxes had been recovered by the selling non-resident dealer from its purchasers. It is also stated in the statement of the case that there is no dispute in this case that the applicant had recovered taxes on the impugned transactions.
The explanation sales effected by the applicant during the period 1st July, 1954, to 31st March, 1955, and 1st April, 1955, to 6th September, 1955, were assessed to tax by the Sales Tax Officer, Non-resident Circle, Gwalior, who imposed sales tax amounting to Rs. 11,221 for the first period and Rs. 9,730-3-0 for the second period.
4. The applicant submitted revision petitions against the orders of assessment under Section 12(2) of the Act to the Additional Commissioner of Sales Tax, Indore. These revisions were dismissed. At the instance of the applicant, the Commissioner of Sales Tax, M.P., has referred the aforesaid question of law for the opinion of this Court.
5. The learned counsel for the applicant contended that the second category of sales referred to above were sales in the course of inter-State trade and were not liable to tax at all and that the period for which the applicant was assessed was not covered by the Sales Tax Laws Validation Act and therefore, the assessments made were contrary to law. He also submitted that if the statement of the case was not complete supplementary statement of the case may be called for. We are afraid the contentions raised by the learned counsel for the applicant cannot be considered because the same do not arise out of the order of the Commissioner of Sales Tax. The only question raised by the applicant before the Additional Commissioner in revision was that since the applicant was a resident dealer in Madhya Bharat with headquarters at Mhow and had included in its consolidated returns even the explanation sales it was not liable to be assessed again and subjected to tax twice. The Additional Commissioner found as a fact that the sales in question were not assessed by the Sales Tax Officer while assessing the intra-State sales on the basis of consolidated returns filed by the applicant, and therefore the contention of the applicant that it cannot be assessed twice on the explanation sales was negatived. It is also clear from the record that the applicant was dealing in Madhya Bharat in two capacities, one as a non-resident dealer in which capacity goods were sold by it at Bombay for consumption in the State of Madhya Bharat which are described as explanation sales and in the other capacity as a resident dealer it effected intra-State sales. There can be no doubt that if a person deals in two capacities he can be assessed separately for transactions effected by him in the respective capacities. In the circumstances no error of law is shown to have been committed by the Commissioner in assessing the applicant as non-resident dealer in respect of explanation sales and as resident dealer in respect of intra- State sales.
6. As a result of the discussion aforesaid our answer to the question referred to us is that in the facts and the circumstances of the case the applicant was liable to payment of sales tax both as resident as well as non-resident company ; as a resident dealer on intra-State sales effected by it and as non- resident dealer on explanation sales. In the circumstances there shall be no order as to costs of this reference.