JUDGMENT R. K. DAS, J. - This is a reference under section 24(1) of the Orissa Sales Tax Act, 1947 (hereinafter called the Act) by the Member, Board of Revenue, Orissa, Cuttack, seeking answers from the Court on the following two questions of law :- "(1) Whether the applicant is entitled to have the earth-moving machineries, motor-trucks, spares, high speed diesel oil, lubricants, tyres, tubes and flaps for heavy earth-moving machines and trucks etc. entered in the certificate of registration granted to the applicant under sub-section (3) of section 9 of the Orissa Sales Tax Act, 1947, enabling the applicant to purchase them free of tax in view of the admitted position that the earth-moving machineries, motor-trucks and spares were used in the execution of the contract and the contract could not be executed without them. (2) Whether in the light of the decision of the Supreme Court treating a contractor for earthwork as not liable to sales tax as a dealer under the Sales Tax Act such a contractor can claim the benefit of sub-clause (ii) of clause (a) of sub-section (2) of section 5 of the Act for the goods used by him in the execution of such a contract." 2. Question No. (1) was submitted by the petitioner to the Board of Revenue for reference to this Court. But on a perusal of the facts of this case and the questions of law involved, the Member, Board of Revenue, thought it necessary also to add question No. (2) for a complete disposal of the questions of law involved in the present case. 3. The short facts of the case are that the Kalinga Construction Company Limited (hereinafter called the petitioner) is a firm of contractors, who undertook the construction of some earthwork in the Hirakud Dam Project. They were registered as dealers under section 9 of the Act. They made an application on 10th April, 1954, to the Sales Tax Officer to include in their registered certificate some earth-moving machineries, motor-trucks, spares, high speed diesel oil, lubricants, tyres, tubes, and flaps for heavy earth-moving machines and trucks etc. for the purpose of purchasing the said articles free of sales tax as they were required for use in the execution of their contract work. The Sales Tax Officer, however, by his order dated 15th September, 1954, declined to enter the aforesaid materials in the certificate of registration. for the purpose of purchasing the said articles free of sales tax as they were required for use in the execution of their contract work. The Sales Tax Officer, however, by his order dated 15th September, 1954, declined to enter the aforesaid materials in the certificate of registration. In an appeal preferred by the petitioner, the Collector of Commercial Taxes also confirmed the order of the Sales Tax Officer. Against that decision of the Collector of Commercial Taxes, dated 15th December, 1954, the petitioner moved the Board of Revenue in Revision Case No. 60 of 1955-56 and the Member, Board of Revenue, by his order dated 14th May, 1959, also rejected the contention of the petitioner and confirmed the order of the Collector holding that the materials, sought to be included in the certificate of registration for the purpose of purchasing them free of sales tax, had not been used as materials in the execution of the contract work as such materials had not gone into the construction work itself. The petitioner thereafter made an application under section 24 of the Act before the Member, Board of Revenue, for making a reference of question No. (1) to this Court. The learned Member, Board of Revenue, as stated above, however, added question No. (2) for a complete disposal of this case. 4. At the outset, Mr. R. K. Ghosh, appearing for the petitioner, raised a preliminary point contending that under section 24(1) of the Act it is only the registered dealer who could frame a question for reference to the High Court and the Member, Board of Revenue, had no jurisdiction to frame any other question of law suo motu for such reference. According to him, only question No. (1) should have been referred to the High Court and not question No. (2). He therefore wanted us to ignore question No. (2) altogether. In support of his contention he relied upon a decision in Mash Trading Co. v. Commissioner of Income-tax ([1956] 30 I.T.R. 388 (F.B.)). According to him, only question No. (1) should have been referred to the High Court and not question No. (2). He therefore wanted us to ignore question No. (2) altogether. In support of his contention he relied upon a decision in Mash Trading Co. v. Commissioner of Income-tax ([1956] 30 I.T.R. 388 (F.B.)). In that decision, which was a case under section 66 of the Indian Income-tax Act, it has been held, however, that : "If a question of law has not been raised or considered by the Appellate Tribunal that question cannot be held to arise out of the order of the Tribunal within the meaning of section 66(1) of the Indian Income-tax Act and the question cannot therefore be referred to the High Court under section 66 of the Act." So all that the Full Bench has decided is that no question can be referred to the High Court unless it arises out of the order of the Tribunal. So that decision has no application to this case where the question is whether it is competent for the Board to refer any question to the High Court other than that framed by the petitioner. There cannot be any dispute in the case before us that question No. (2) does arise out of the order of the Board of Revenue. 5. This contention is resisted by Mr. G. K. Misra, the learned counsel for the department, who urged that the Board of Revenue was not restricted only to the question sought to be referred to by the petitioner, but it was open to the Board to refer any question of law that may arise out of its order whether it has been stated by the assessees in their application under section 24(1) of the Act or not. In support of his contention he relied upon a decision in Nemkumar v. Board of Revenue, M.P. ([1953] 4 S.T.C. 327.), where their Lordships have held that it was the duty of the Board of Revenue to refer all such questions of law as arise out of its own order whether they are stated by the applicant in his application under section 23(1) or not, and the Board of Revenue must consider whether a question of law brought to its notice during the hearing of the case arises or not. The other decision relied upon by him is Girdhardas & Co. The other decision relied upon by him is Girdhardas & Co. v. Income-tax Commissioner ([1957] 31 I.T.R. 82; A.I.R. 1957 Bom. 4.), where their Lordships have held that : "Whoever may be a party who asks for a reference, once a reference is determined upon, all questions of law which arise out of the order of the Tribunal can be referred to the High Court for its determination. Questions may be suggested either by the party which wants a reference or by the party which is content with the decision of the Tribunal." To the same effect is a decision in In re Krishna Kumar (A.I.R. 1931 Cal. 543.), where a Special Bench of the Calcutta High Court held : "If the Commissioner thinks that there is a point of law proper to be referred he is not bound to refuse merely by reason that the assessee has not framed it properly. He can frame it properly himself and then refer it." In another decision of the Patna High Court in Brij Raj Rang Lal v. Commissioner of Income-tax (A.I.R. 1927 Pat. 390.), the Division Bench, while dealing with a case under section 66 of the Income-tax Act, held : "It is not sufficient for an assessee to suggest to the Commissioner the questions of law. It is for the Commissioner to find the facts first and then to state the point of law which arises out of those facts and on which he desires opinion of the High Court. He may then, if he likes, give his own opinion on the case." In view of the position of law as decided in the aforesaid cases, it is clear that it was quite competent on the part of the Member, Board of Revenue, to refer to us the second question even though the same had not been sought to be referred to by the petitioner. The contention of the learned Advocate for the petitioner cannot, therefore, be accepted. 6. We will now proceed to answer the questions referred to us. Section 9 provides that a dealer who wants to be registered has to make an application in this behalf in the prescribed manner and on the receipt of such an application shall be granted a certificate in the prescribed form if the application is in order. 6. We will now proceed to answer the questions referred to us. Section 9 provides that a dealer who wants to be registered has to make an application in this behalf in the prescribed manner and on the receipt of such an application shall be granted a certificate in the prescribed form if the application is in order. Under rule 6 of the Orissa Sales Tax Rules, 1947, Form II is the prescribed form for making such application. While making such application the dealer shall give a list of goods which are ordinarily purchased by him for use in the execution of the contract. Similarly under rule 7 of the Orissa Sales Tax Rules, Form No. III has been prescribed to be the form in which certificate is to be granted wherein the list of goods which the dealer shall be entitled to purchase free of sales tax for use in the execution of contracts will be noted. Section 5(2)(a)(ii) of the Act provides : "Sales to a registered dealer of goods specified in the purchasing dealer's certificate of registration as being intended for re-sale by him in Orissa or for use by him in the execution of any contract in Orissa, and on sales to a registered dealer of containers or other materials for the packing of such goods ........." On the basis of these provisions the petitioner made an application to the Sales Tax Officer to include in his certificate of registration certain goods, such as earth moving machines, motor-trucks etc., as noted in question No. (1), so as to entitle him to purchase the same free of sales tax. The Sales Tax Authorities rejected the prayer of the petitioner mainly on the ground that the goods were not so used in the execution of the contract so as to entitle him to purchase the same free of tax. We are, therefore, concerned with the question as to what is the nature of the user of goods in a contract work which will entitle the petitioner to get the required exemption. It is contended on behalf of the petitioner that trucks and machineries are essential for the execution of such earthwork and it is not possible to execute such work without the use of trucks etc. That may be so. But it is, however, to be seen whether the mere limited user of the trucks and machineries etc. It is contended on behalf of the petitioner that trucks and machineries are essential for the execution of such earthwork and it is not possible to execute such work without the use of trucks etc. That may be so. But it is, however, to be seen whether the mere limited user of the trucks and machineries etc. to facilitate the execution of the contract work, can be taken to be such "use for the execution of contract" as contemplated by law. For the purpose of his business a contractor may have to maintain a number of trucks or machineries which he may have to utilise in a number of works at different places. These trucks or machineries last for a number of years and may be used for any number of separate works even in different States in India. Can it therefore be said that the very same trucks etc. were in use in each of such contract works ? In fact such machineries are in the form of a machanised labour and are a sort of substitute for manual labour. Rule 4 has made provision for such labour. Moreover when the contract is over the trucks etc. remain the property of the contractor though they undergo some deterioration by some user in the contract work and the contractor, while giving tenders and accepting the contract, knows quite well the usual deterioration of such trucks etc. in the normal course of its business. It cannot be disputed that the contract for execution of a pure earthwork is an indivisible unit and the only agreement between the contracting parties is that the contractors shall execute the work as one unit and the property in the said work will pass to the other party as one indivisible whole and materials used in the said contract do not form a separate entity. In the case of trucks etc. they do not even form such materials as are used in the contract work. To my mind, the expression "for use in the execution of the contract" clearly imports an idea of the user of such materials which bodily go into the contract work itself. In other words, the very materials should form part of the work itself, and shall pass as the property of the party who gave the contract work. There is no question of the property in the trucks etc. In other words, the very materials should form part of the work itself, and shall pass as the property of the party who gave the contract work. There is no question of the property in the trucks etc. or any part of the same passing to the State in the present case. Even if the user of the trucks etc. are of essential necessity for the execution of a contract work, the limited use of any machineries, trucks, tyres etc. as is sought to be included in his application, is not such use as is contemplated by the law. There is, therefore, no doubt in my mind that the Sales Tax Authorities have rightly refused the prayer of the petitioner to include in his registration certificate the machineries etc. in question. Question No. (1) shall, therefore, be answered in the negative. 7. Now coming to the second question, Mr. Misra contends that works contract like that of the petitioner is one and indivisible and the petitioner is not a dealer within the meaning of the Act and as such he is not entitled to ask for the relief sought in his application. He based this contention upon the well known case of State of Madras v. Gannon Dunkerley & Co. ([1958] 9 S.T.C. 353.). In support of his contention Mr. Misra also relied upon a Full Bench decision of the Assam High Court in M. L. Dalmia & Co. v. State of Assam ([1959] 10 S.T.C. 41.), where their Lordships, while dealing with a case under the Assam Sales Tax Act, 1947 (Act XVII of 1947) held : "In the case of a building contract simpliciter, which is one and indivisible, the materials and goods that may be supplied by the building contractor in execution of the contracts would not fall within the definition of sale and the building contractor in such a case cannot be said to be a dealer within the meaning of the Act and he is not liable to be registered or assessed, simply because of the work which he carries on in execution of his contract of building". To the same effect is a decision of the Allahabad High Court in Ford & Macdonald Ltd. v. Commissioner of Sales Tax ([1959] 10 S.T.C. 70.), where their Lordships have held : "So far as the building or works contracts and the materials used in connection with those contracts are concerned, the contractors are not 'dealers' within the meaning of the U.P. Sales Tax Act because they cannot be held to have sold the materials." Both these decisions of Assam and Allahabad High Courts are based upon the aforesaid decision of the Supreme Court in State of Madras v. Gannon Dunkerley & Co. ([1958] 9 S.T.C. 353.). 8. Mr. Ghosh drew our attention to the word "dealer" as defined in section 2 of the Act, which is as follows :- "Section 2(c) - 'Dealer' means any person who executes any contract or carries on the business of selling or supplying goods in Orissa, whether for commission, remuneration or otherwise and includes any firm or a Hindu joint family, and any society, club or association which sells or supplies goods to its members ......" According to him, the word "dealer" includes the word "contractor" by clear definition and even after the decision given by the Supreme Court in Gannon Dunkerley's case ([1958] 9 S.T.C. 353.), the Legislature did not choose to amend the definition of the word "dealer" so as to exclude the "contractor" by express legislation from the purview of that section. He urges that necessarily, therefore, the contractors are continuing as dealers within the meaning of the Act. In this connection, it may be noted that in the meanwhile by the Orissa Act XVIII of 1959, the words "executes any contract or" have been omitted from the definition of the word "dealer" in section 2(c) so as to exclude contractors from the definition of the word "dealer", and similar and consequential amendments have also been made in clause (d) of section 3 of the Act which will show the Legislature's intention to exclude the contractors from the purview of the word "dealer". There is, therefore, no doubt about the fact that the petitioner is not a dealer under the Act. 9. Mr. There is, therefore, no doubt about the fact that the petitioner is not a dealer under the Act. 9. Mr. Ghosh next contends that it had been found as a fact by the Board of Revenue that the petitioner is a dealer and for the purpose he relied upon a sentence in the judgment of Sri Ramanathan, the learned Member of the Board, where he said : "So far as the applicant is concerned it appears the petitioners are perfectly justified in mentioning that certain goods which they purchased for use in the execution of contract should be included". On the basis of this observation, Mr. Ghosh contends that this is a finding of fact and should not be disturbed by the High Court and should be taken as conclusive on the point that the petitioner is a dealer. To my mind, this is not the correct position. The reading of the judgment of the Member, Board of Revenue, does not give such an idea at all. There is, therefore, not much force in this contention of the learned Advocate for the petitioner. Thus the petitioner, not being a dealer, is not entitled to the benefit under section 5(2)(a)(ii) of the Act. 10. In view of the aforesaid discussion, I would answer both the questions in the negative. The reference is answered accordingly. In the circumstances the parties are to bear their own costs. G. C. DAS, A.C.J. - I agree. Reference answered accordingly.