JUDGMENT This is a rule issued upon the Member, Board of Revenue, West Bengal, under Section 21(2) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act) to show cause why he should not refer to the High Court the two questions appearing in the schedule annexed to the rule. The facts are briefly as follows : The petitioner is the Standard Pharmaceutical Works Ltd., a public limited company incorporated under the Indian Companies Act. There is another company called the Standard Products Ltd. The petitioner calls this a "subsidiary company" and claims that the subsidiary company acted as its agent. It is unnecessary to go into details as to the precise nature of the transaction but substantially they were as follows : The petitioner manufactured goods which were distributed by the Standard Products Ltd. The Standard Products Ltd., was entitled to commission. When the Standard Products Ltd. realised the monies it remitted the same to the petitioner. Under Section 10(2) of the Act, the petitioner had to furnish a return for the year ending 31st March, 1948. This it did in form No. III. The original return has been produced in Court. The first item in the return is headed "Total cash receipts on account of - (1)(i) sales of goods other than sales involved in the execution of contract as defined in the Act". Against this the petitioner entered the sum of Rs. 32,27,845-8-9. Against item 4, namely, "Turnover", the petitioner entered the very same sum. From this he deducted under the heading "Deductions under Section 5(2)(a) on account of sales effected during the return period" the same sum, and has shown the balance to be "nil". This return shows that during the year of accounting, the total cash receipts of the petitioner on account of sale of goods was Rs. 43,27,845-8-9, the whole of which was sold to a registered dealer and therefore the whole of its was to be exempted under Section 5(2)(a) of the Act. The Commercial Tax Officer who scrutinised this return found that the Standard Products Ltd. was not registered under Act till the 23rd of June, 1947. Therefore, between the 1st of April, 1947, and the 22nd of June, 1947, the sales had been made to an unregistered dealer. The Commercial Tax Officer who scrutinised this return found that the Standard Products Ltd. was not registered under Act till the 23rd of June, 1947. Therefore, between the 1st of April, 1947, and the 22nd of June, 1947, the sales had been made to an unregistered dealer. When such a thing is discovered in the department, the officer requires a statement from the registered dealer as to the period of the transaction with such dealer and it appears that a statement by Standard Products Ltd., dated 1st of May, 1950, was handed over to the department by the petitioner, the contents of which are as follows :- "With reference to your letter No. S.P./50-51-R.C.B. dated 1st May, 1950, we confirm that our purchase from you amounting to Rs. 37,94,397-12-6 from 23rd June, 1947, to 31st March, 1948, are covered by our sales tax certificate No. TL-1055A." The Commercial Tax Officer, therefore, made his calculations thus : He took Rs. 43,27,845-8-9 as the gross turnover and he has disallowed the exemption for that period during which M/s. Standard Products Ltd. was not a registered dealer and on this footing he has assessed the tax. It must be pointed out here that the petitioner made no attempts at any time to amend the return. The Commercial Tax Officer submitted his report to the Assistant Commissioner who then dealt with the matter. Before the Assistant Commissioner it was contended by the petitioner that there was no sale to Standard Products Ltd. The Assistant Commissioner in his order dated the 30th June, 1950, said as follows :- "In the facts of the case stated above I am of opinion that the Standard Products Ltd., were the selling agents of the dealer and the goods placed at their disposal on consignment basis and the privity of the contract of sales to the outside parties existed between Standard Products Ltd., and their customers. In my opinion, the Standard Products Ltd., acted as agents to the assessee dealer and as such under the provisions of the law and in the circumstances of the case there were simultaneously two sales, one between the assessee dealer and Standard Products Ltd., and another between the latter and the outside customer." The report of the Commercial Tax Officer was upheld. From this order there was an appeal to the Commissioner of Commercial Taxes. From this order there was an appeal to the Commissioner of Commercial Taxes. The Commissioner remarked on the provisions contained in the agreement between the appellant and its selling agents to the effect that as soon as goods were despatched by the agent from their godowns the property in the goods was to pass to the agent, and also that the agent was to sell the goods at its own risk. The Commissioner came to the following conclusion :- "Thus it is clear that the appellant effects the sale to his agent viz., M/s. Standard Products Ltd., before the latter can sell to the ultimate purchasers. As the sales in dispute have been effected to M/s. Standard Products Ltd., before they were registered under the Act, tax has been correctly assessed on such sales." The appeal was disallowed. From this decision the petitioner appealed to the Board of Revenue. In the grounds of appeal, for the first time, the following point was taken :- "VIII. For that the sale proceeds received by your petitioner company during the period between 1st April, 1947, and 22nd June, 1947, amounted to Rs. 1,53,513-12-0. In such circumstances, the assessing authority, at best could impose tax only on this amount in accordance with the provisions of law." The matter was considered by the Member, Board of Revenue, who by his order dated the 21st of March, 1952, rejected the petition. The learned Member, Board of Revenue, pointed to the fact that according to the petitioner's return the gross turnover during the year was Rs. 43,27,845-8-9 and that according to the letter furnished by the petitioner from their selling agent, it clearly appeared that the goods were purchased by their agent from the petitioner. He did not think it necessary to go into what he called an "intricate question", regarding the tax being on a consignment basis. The petitioner thereupon applied that the Board should refer certain questions to this Court but this application was refused. It is to be noted that the learned Member in his order dated 7th March, 1953, points out that in fact there was no taxation upon a consignment basis. There was another application for review but that also was rejected. In the petition seven questions were formulated, but at the time of issuing the rule, Mr. Chowdhury condensed the same into two questions which are as follows :- "1. There was another application for review but that also was rejected. In the petition seven questions were formulated, but at the time of issuing the rule, Mr. Chowdhury condensed the same into two questions which are as follows :- "1. Whether the transactions between the petitioner and M/s Standard Products Ltd., are such as are taxable under the Bengal Finance (Sales) Tax Act. 2. Assuming the transaction between the petitioner and the Standard Products Ltd., is one of sale and purchase whether in view of the fact that the petitioner did not receive the price of goods between the dates 1st April, 1947, to 22nd June, 1947, and whether in view of the fact that the accounts were adjusted between them on 31st March, 1948, the petitioner can be made liable to pay sales tax for the aforesaid period of 1st April, 1947, to 22nd June, 1947." Before me Mr. Chowdhury's contentions are as follows : Firstly, he says that the mistaken basis upon which the Sales Tax Authorities and the Board of Revenue proceeded was that the transaction was on a consignment basis, or, in other words, that the transfer of goods to the selling agents amounted to a sale, whether they, in their turn, sold the goods or not. In that view, sales tax would be payable as soon as transfer was effected to the agent, irrespective of the fact whether the goods were sold or the proceeds remitted. He questioned the finding that there were two sales, one to the selling agent and one to the consumer. Secondly, he says, assuming that there was a sale, then during the period 1st April, 1947, to 22nd June, 1947, the amount actually received by the petitioner was Rs. 1,53,513-12-0 and therefore, the assessing authority could impose tax only on this amount. I must say that while the Commercial Tax Officer made the assessment in a simple manner and upon what was warranted upon the material on record, the higher authorities have needlessly complicated matters by holding that there were two sales or that they were no a consignment basis. "Sale" has been defined in the Act as meaning any transfer of property in goods for money consideration [Section 2(g)]. "Sale" has been defined in the Act as meaning any transfer of property in goods for money consideration [Section 2(g)]. In my opinion, the transfer of goods to the subsidiary company, in the first instance, does not seem to satisfy this definition, because it is not a transfer for a money consideration. The subsidiary company only got a commission, and paid after receiving the money from the consumers. The real sale was by the subsidiary company to the actual consumers. If it was necessary, on the facts of this case, to come to a finding on this point without any other complications, then there might have been something to be said for granting the relief asked for. Difficulties, however, arise at once. The petitioner has been granted exemption for the period subsequent to 22nd June, 1947, on the ground that goods were sold to the subsidiary company who were registered dealers. That is a position which the petitioners have accepted and are still proceeding on that basis. They do not offer to pay the sales tax for the entire amount on the ground that there was no sale whatsoever during this period to a registered dealer. If they choose to take advantage of a sale to the subsidiary company during the period, I do not see how they can turn round and say that for the period 1st April, 1947, to 22nd June, 1947, the transactions with the subsidiary company are to be considered on some other footing and that it is not a sale at all. Then, again, as I have already pointed out, it is the petitioner's case in the return filed, that the entire sum of Rs. 43,27,845-8-9 had been received in cash (and this also appears from the profit and loss account of the company). Confining ourselves to that portion during which the subsidiary company was an unregistered dealer, it must follow that for this period, the sale price has been received by the petitioner and it must pay the sales tax. Mr. Chowdhury concedes that the petitioner will have to pay the sales tax for this period, although he has taken a further point, which I shall presently deal with, namely that the entire amount was not received within that period but it may have been received in course of the financial year. Mr. Chowdhury concedes that the petitioner will have to pay the sales tax for this period, although he has taken a further point, which I shall presently deal with, namely that the entire amount was not received within that period but it may have been received in course of the financial year. I, therefore, do not see what is the point in making the reference on the first heading. On the facts as they stand, the petitioner admits having received the sum of Rs. 43,27,845-8-9 (vide the return) and admits that the exemption relates to a sum of Rs. 37,94,397-12-6 (vide letter of subsidiary company dated 1st May, 1950). Therefore, quite apart from the fact that the petitioner wishes to take a double stand with regard to point No. 1, upon the facts as they stand, no useful purpose can be served by ordering a reference of a hypothetical question as to liability. Now, we come to the second point. According to Mr. Chowdhury, assuming that the petitioners have to pay the sales tax for the amount of sales during the period 1st April, 1947, to 22nd June, 1947, the actual amount received during that period from the subsidiary company was Rs. 1,53,513-12-0, whereas the Commercial Tax Officer has charged tax on the entire balance. Mr. Chowdhury points out that under the law as it stood before the amendment, a "turnover" was defined as the amount "received" and not "receivable" as is the position after the amendment. As will appear from the facts stated before, the petitioner did not take that point before the Commercial Tax Officer or before the Assistant Commissioner or before the Commissioner. It is only before the Board of Revenue that for the first time this point was taken. There is nothing before me to show that this point was urged before the Member, Board of Revenue, on the first instance, and certainly nothing appears from his order which is otherwise quite lengthy and elaborate. In the petition before me it is not stated that the point was actually urged at the hearing but not dealt with by the learned Member. There is nothing shown to me as to whether any materials were placed before the learned Member to establish that the petitioner received that amount and no more. Mr. In the petition before me it is not stated that the point was actually urged at the hearing but not dealt with by the learned Member. There is nothing shown to me as to whether any materials were placed before the learned Member to establish that the petitioner received that amount and no more. Mr. Chowdhury refers me to a sheet which appears in a file that has been produced before me by the Government in which, next to the letter of the 1st May, 1950, there is a typewritten sheet in which certain figures are given about the turnover in respect of the Standard Products Ltd., and there the figure Rs. 1,55,811-3-6 appears. I am afraid this shows nothing. I do not know whether this typewritten sheet was placed before the Member, Board of Revenue, or discussed before him; also the amount is not the same as alleged by the petitioner. It appears that the point was raised before the Member when the application for reference was made but the learned Member reviewed the evidence as was placed before him and came to the conclusion as a fact that the petitioner received the whole sum of Rs. 5,33,447-12-0 and not only Rs. 1,53,513-12-0. He has pointed out that the tax has not been calculated upon a consignment but upon actual sale and receipt of the sale proceeds. That being so, he rightly points out that the question is purely a question of fact and no question of law arises. I am really concerned with the order of the Member, Board of Revenue, and it is clear that whatever be the findings of the Assistant Commissioner or the Commissioner, the ultimate finding was on the basis of actual receipts and not upon a sale on a consignment basis. It is not the object of an application of this description to review or reconsider questions of fact. Put shortly the position is as follows : If the learned Member came to the conclusion that as a fact only Rs. 1,53,513-12-0 was received and yet upheld taxation upon the amount of Rs. 5,33,447-12-0, there might have been grounds for saying that he had misconceived the legal liability of the petitioner and should refer the point. But he has clearly pointed out that he does not proceed on the consignment basis but finds as a matter of fact that Rs. 1,53,513-12-0 was received and yet upheld taxation upon the amount of Rs. 5,33,447-12-0, there might have been grounds for saying that he had misconceived the legal liability of the petitioner and should refer the point. But he has clearly pointed out that he does not proceed on the consignment basis but finds as a matter of fact that Rs. 5,33,447-12-0 was received within the relevant period. He may have come to an erroneous conclusion of fact but there is no error of law warranting an order under Section 21(2) of the Act. In view of the reasons given above I do not think that this application should succeed and I do not feel called upon to order the Board of Revenue to refer to this Court the questions as have been formulated. This decision should not be taken to mean that I have approved of the findings of the authorities below regarding the nature of the transactions between the petitioner and the subsidiary company, but such question must be decided where it arises to be decided and where it is raised in the proper manner at the proper time and upon proper materials. The rule is accordingly discharged. All interim orders are vacated. I make no order as to costs. Rule discharged.