JUDGMENT

SEN. J.:—This is an appeal from a judgment of the Allahabad High Court dated October 27,1972 which was given upon a reference of certain questions of law made to the High Court by the Additional Judge (Revisions), Sales Tax, Meerut in compliance with its directions under sub-sec. (4) of Section 11 of the U. P. Sales Tax Act, 1948 calling for a statement of the case. The two questions referred were as follows :

1. Whether there is no material in support of best judgment assessment?

2. Whether on the facts and in the circumstances of this case the assessee acted in respect of the estimated purchase turnover of Rs. 3,80,000/- as dealer so as to be liable to purchaser tax?

2. The Commissioner of Sales Tax submitted that the first question should be answered in the negative and the second in the affirmative. The High Court decided in favour of the assessee and against the Commissioner, holding that the submission of the assessee was right and answered both the questions to the contrary. From this decision the appellant, the Commissioner of Sales Tax, has appealed.

3. The reference arose out of assessment for the assessment year 1967-68 of Messrs. Bishamber Singh Layaq Ram which carries on business in jaggery, amchur, khandsari etc. on its own account and as kutcha arhatiya in jaggery, foodgrains etc. at Shahpur in the district of Muzaffarnagar, and is registered as a dealer under Section 8-A of the Act (hereinafter referred to as the assessee).

4. The material facts may be stated as follows : During the assessment year in question, the Sales Tax Officer, Muzaffarnagar by his order dated December 27, 1968 rejected the account books of the assessee on the basis of some discrepancies found during the four surveys carried out at his shop and made a best judgment assessment under sub-s. (3) of S. 7 of the Act, determining the taxable turnover of purchases effected by it as a kutcha arhatiya at Rs. 5,30,000/- and the tax payable thereon at Rs. 25,450/-. On appeal the Assistant Commissioner (Judicial), Sales Tax, Muzaffarnagar by his order dated August 11, 1969 reduced the taxable turnover of purchases by Rs. 1,50,000/- and the tax by Rs. 7,500/-.

5. There were two cross-revisions by the Commissioner of Sales Tax and by the assessee, both of which were allowed by the Additional Judge (Revisions) Sales Tax, Meerut who by his order dated February 10, 1970 while negativing the plea of the assessee that he was not a dealer, however, felt that on the material on record, the taxable turnover of the assessee could not reasonably be determined at Rs. 3,38,000/-. He accordingly set aside the orders of the Assistant Commissioner (Judicial) and of the Sales Tax Officer and directed that there should be a fresh best judgment assessment.

6. Upon reference, the High Court on question No. 2, as to the liability of the assessee to tax on transactions effected by it as kutcha arhatiya held that the assessee was not a dealer, observing :

"If the assessee is a Kutcha Arhatiya then he is not liable to sales tax. The change in the definition of the word dealer in 1961 upon which the Judge (Revisions) has relied does not change the situation. A person can be liable to tax as a dealer only if he acts as an agent having the authority to pass title in the goods sold. A kutcha arhatiya merely brings together the seller and the purchaser and helps in settling the price and weighing the goods etc. The fact that he sometimes advances money to cultivators who bring their produce for sale or sometimes pays the entire sale price to the cultivator from his own pocket is not inconsistent with his being a kutcha arhativa."

7. It was irghtly contended on behalf of the Commissioner that the High Court was wrong in holding that the assessee was not a dealer within S. 2 (c) of the Act and that the Sales Tax Officer was not justified in making an assessment to the best of his judgment under S. 7 (3). It is pointed out that the High Court has completely overlooked Explanation to