Judgment

SHAH, J. : Bhopal Sugar Industries Ltd. (the first petitioner) is a public limited Company incorporated under the Indian Companies Act, 1913, and the second petitioner is a shareholder and a Director of the Company. The Company is a manufacturer of sugar and owns a fleet of motor trucks and other motor vehicles. The Company also carries on the business of selling motor spirit, high speed diesel oil, and lubricants and maintains a petroleum pump at Sehore in the State of Madhya Pradesh. Between April 1, 1959 and March 31, 1960 the Company used, for its motor vehicles 8908 gallons of petroleum, 40719 gallons of high speed diesel oil and lubricants of the value of Rs. 2,453.47 nP. The first respondent who is the assessing authority under the Madhya Pradesh Sales of Motor Spirit and Lubricants Taxation Act, 4 of 1958, assessed the Company to pay sales tax in respect of motor-spirit and lubricants used by the Company out of the stock held by it for its own vehicles, because in his view such consumption amounted to sales within the meaning of the Act.

2. By this petition under Art. 32 of the Constitution it is claimed that the definition of retail sale in S. 2(1) of the Act which seeks to render consumption by the owner of motor-spirit liable to tax under the Act by virtue of S. 3 is beyond the competence of the State Legislature and hence void and the order of the first respondent seeking to impose liability upon the Company for payment of tax infringes the fundamental rights of the Company under Article 19(1)(f) and (g) of the Constitution.

3. Section 2(k) of the Madhya Pradesh Sales of Motor Spirit and Lubricants Taxation Act defines a retail dealer as meaning "any person who, on commission or otherwise, sells or keeps for sale motor spirit or lubricant for the purpose of consumption by the person by whom or on whose behalf it is or may be purchased." Section 2 cl. (1) defines retail sale as meaning "a sale by a retail dealer of motor spirit or lubricant to a person for the purpose of consumption by the person by whom or on whose behalf it is or may be purchased and includes the consumption by a retail dealer himself or on his behalf of motor spirit or lubricants sold to him for retail sale;" (The definition is followed by an explanation which is not material for the purpose of this appeal). Section 3 is the charging section. It provides that subject to the provisions of the Act, there shall be levied on all retail sales of motor spirit and lubricants effected after the commencement of the Act, tax at the rates specified in the table set out therein.

4. The Company is registered under S. 4 of the Act as a retail dealer. By S. 2(1) consumption by a retail dealer himself or on his own behalf of motor spirit or lubricants sold to him for retail sale is included in the definition of retail sale . Thereby the Legislature has attempted to enlarge the normal concept of sale, and has included therein consumption for his own purposes by the retail dealer of motor spirit and lubricants sold to him for retail sale, and by S. 3 such consumption is made taxable as sale. But this Court held in State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd. 1959 SCR 379 that the expression sale of goods in Entry 48 List II, in Sch. VII of the Government of India Act, 1935 has the same meaning as in the Indian Sale of Goods Act, 1930 and therefore in a transaction of sale of goods which is liable to tax there must be concurrence of the four elements, viz :

(1) parties competent to contract;

(2) mutual assent;

(3) a thing the absolute or general property in which is transferred from the seller to the buyer; and

(4) a price in money paid or promised.

A transaction which does not conform to this traditional concept of sale cannot be regarded as one in respect of which the State Legislature is competent to enact an Act imposing liability for payment of tax. It was observed at p. 407 (of SCR):

"A power to enact a law with respect to tax on sale o