( 1. ) THIS is a reference made by the Sales Tax Appellate Tribunal under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958, referring for our answer the following question of law :

Whether the transactions of Rs. 74,00,741. 96 represent, in the circumstances of the case, kaccha adat transactions not taxable in the hands of the dealer or sales to be included in the taxable turnover of the dealer ?

( 2. ) THE relevant period of assessment is Diwali 1965-66. The mode of business carried on by the assessee in respect of the transactions under reference is disclosed fully in the order of the Deputy Commissioner dated 29th November, 1968, which forms part of the statement of case. The assessee functions as a commission agent within the market yard of Agricultural Produce Market, Sagar. The cultivators bring their produce to the fad of the assessee. Fad, we are informed, is a piece of land in the mandi in occupation of the assessee as licensee. The produce so brought by the cultivators is sold by auction. The bid is accepted by the cultivators who remain present till the goods are sold. The buyers remove the goods from the fad,. The names of the buyers and sellers are entered in the chukara bahi of the assessee. The assessee issues a bill to the buyers. Apart from the price of the produce sold, the assessee recovers sales tax and commission. The price is paid to the cultivators and the assessee retains the sales tax and commission. The Deputy Commissioner, after referring to the evidence produced before him, came to the conclusion that the goods were sold in the assessees kaccha adat by the cultivators themselves, the assessee only helping them to sell their goods as best as they could by lending his technical knowledge of the market and thus bringing the buyers and cultivators together so that the goods could be sold in the market by auction. It was further found that the cultivators were present and the bids were not knocked down until they accepted the bids which showed that the ultimate decision to sell rested with the cultivators. The Deputy Commissioner, however, held that the assessee was a dealer on the ground that in the bill that he prepared he included sales tax and he was, therefore, estopped in saying that he was not a dealer as defined in the Act. Somewhat same view was taken by the Tribunal. A reading of the statement of case would show that the facts found by the Deputy Commissioner were accepted by the Tribunal and the question only is whether on those facts the assessee can be held to be a dealer in relation to the transaction of Rs. 74,00,741. 96 which were completed in the manner stated above.

( 3. ) THE definition of "dealer", as it stood at the relevant time, reads as follows:

2. (d) dealer means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration and includes (i ). . . (ii ). . . (iii) a commission agent, a broker, a del credere agent, an auctioneer or any other mercantile agent, by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal.

( 4. ) THE view taken by the Deputy Commissioner that the assessee was a dealer on the ground of estoppel is on the face of it erroneous. There cannot be any estoppel against a statute. The question whether the assessee is a dealer has to be answered in the light of the facts found and the definition of "dealer" as contained in Section 2 (d ). Indeed, the learned Government Advocate has not supported the line of approach adopted by the Deputy Commissioner and the Tribunal in finding the assessee a dealer on the basis of estoppel. A person is a dealer within Section 2 (d) if he carries on the business of buying, selling, supplying or distributing goods directly or otherwise. The aforesaid business may be carried on by the