The definition of 'sale price' in section 2(h) of the Central Provinces and Berar Sales Tax Act, 1947, includes the cost of railway freight, even if it is actually paid by the purchaser, if the contract between the parties was that it was to be a free delivery.

The order in this case will also govern Miscellaneous Civil Case No. 4 of 1953.

2. These are references under section 23 of the Central Provinces and Berar Sales Tax Act, 1947. Miscellaneous Civil Case No. 65 of 1952 was made under sub-section (1) of section 23 by which two questions, question No. 1 at the instance of the State and question No. 2 at the instance of the assessee, have been referred to this Court. The questions are :-

"(1) Are sums which the assessee in this case called 'commission to agents', but which the assessing officer considered as 'trade discount' liable to exclusion from the turnover ?"

"(2) An assessee-dealer quotes rates 'F.O.R. destination' in his contract with his customer-vendee. He despatches goods, however, 'freight to pay', and consequently the customer-vendee pays the freight separately to a third party, namely, the railway company. The net amount billed to him by the assessee-dealer also excludes the railway freight paid separately by the customer-vendee. In such circumstances, can the cost of railway freight be considered as 'separately charged' for the purpose of the definition contained in section 2(h)(i) of the Sales Tax Act ?"

3. In Miscellaneous Civil Case No. 4 of 1953 the reference was made under sub-section (3) of section 23 at the instance of the assessee who moved this Court and obtained an order to the Board of Revenue for referring the following question to this Court :-

"Whether the transactions between the petitioner and its selling agents outside the Province were 'sales' within the meaning of the Act."

4. The assessee is a concern manufacturing and dealing in biris in Jabalpur. For the purposes of assessment of sales tax on its dealings it submitted a return in respect of the period 1st June, 1947, to 12th November, 1947. In that return it showed (omitting annas and pies) Rs. 12,71,817 as the gross turnover of the business by way of sales other than in execution of contracts. From that gross turnover it claimed deductions of Rs. 16,147 by way of cost of freight, delivery, etc., Rs. 16,453 on account of cash discount (commission to agents), and Rs. 12,38,597 on account of specified goods sold to registered dealers, exported for sales outside the Province. Thus, the deductions amounted to Rs. 12,71,198, leaving only Rs. 619 as the taxable turnover. On this return the Assistant Commissioner of Sales Tax, Jabalpur, determined the taxable turnover as Rs. 12,55,513 after deducting Rs. 25,622 under section 2(j)(b) of the Act. He assessed the tax payable by the assessee at Rs. 39,233 after giving him credit for the small amount of Re. 1 odd already paid with the return. Against the assessment the assessee filed an appeal to the Sales Tax Commissioner. Central Provinces and Berar, who by his order dated the 10th May, 1949, dismissed the appeal. Before him only two points had been raised by the assessee in support of the appeal, viz., (1) that railway freight had not been excluded from the taxable turnover, and (2) that the sales of biris were made outside the Province and the case was one of export, pure and simple. He overruled both these contentions holding that the railway freight was not separately charged to the purchaser as contemplated by section 2(h), and that on the facts found the actual transfer of property in the goods took place within the Province.

5. Against this order of the Sales Tax Commissioner the assessee made an application in revision to the Board of Revenue. Before the Board the case was heard in the first instance by Shri H. S. Kamath, President, and Shri N. P. Shrivastava, Member. The Board's decision is printed as ruling No. 11 at page 61 of Volume I of rulings under the Sales Tax Act, 1947, printed under the authority of the Madhya Pradesh Government. The Board relying chiefly upon the statement made on solemn affirmation before the Assessing Officer by its authorised representative Maksudali came to the conclusion that the contracts of sale were all m