JUDGMENT 1. - These are two reference applications. One by the Commercial Taxes Officer, Special Circle II, Jaipur is under section 15(3A) of the Rajasthan Sales Tax Act, 1954. The other by the assessee M/s. Poddar Spinning Mills Ltd., Jaipur is under section 15(2)(b) of the Act. 2. The assessee is engaged in the business of manufacturing and selling yarn and is a registered dealer both under the Central Sales Tax Act, 1956 and the Rajasthan Sales Tax Act, 1954. During the assessment year 1968-69 the assessee sold two generating sets on foundation for a sum of Rs. 6,00,000/- to M/s. Swan Mills Ltd., Bombay. The two generating sets which were embedded in the foundation of the Mills were removed by the purchaser at their own expenses and taken to Bombay. According to the assessee, when the position of electricity had considerably ceased, its two generating sets had become surplus because electricity from the Rajasthan State Electricity Board was easily available and was much cheaper as compared to that generated by the generating sets. The contention was the occasional sale of its capital goods could not attract the tax, as the assessee did not deal in generating sets as part of its business. In other words, it was urged that the sale proceeds were not liable to be included in its turnover. The Commercial Taxes Officer, however, negatived the contention of the assessee and brought the sale of the two generating sets to tax at 6% treating the sale as within the State of Rajasthan. 3. The appeal of the assessee to the Deputy Commissioner (Appeal) failed. Being aggrieved, the assessee preferred a revision before the Board of Revenue. 4. In revision, it was contended on behalf of the assessee that the transaction was not a sale of movable property, but being the sale of generating sets sold on foundation, was a sale of immovable property and hence no sales tax could be imposed under the Rajasthan Sales Tax Act. The other contentions were that no tax could be attracted on the transaction as the same was not effected by the assessee in the course of business; and that in the alternative, no tax thereon could be imposed under the provisions of the Rajasthan Sales Act since the sale was in the course of inter-State trade and commerce. The other contentions were that no tax could be attracted on the transaction as the same was not effected by the assessee in the course of business; and that in the alternative, no tax thereon could be imposed under the provisions of the Rajasthan Sales Act since the sale was in the course of inter-State trade and commerce. The first two contentions urged on behalf of the assessee failed, but the third was accepted by the Board of Revenue. Hence both the Commercial Tax's Officer as well as the assessee applied to the Bord of Revenue under section 15(1) of the Act requiring it to draw a statement of the case and refer to this court certain questions of law arising from its order. The Board declined to refer the case at the instance of the assessee on the ground that no question of law arises and, therefore, the assessee has applied under section 15(2)(b). The Board, however, failed to dispose of the application filed by the Commercial Taxes Officer within a period of 180 days as required under section 15(1) and, therefore, the authority has moved an application under section 15(3A). 5. The scope of section 15 of the Rajasthan Sales Tax Act, 1954 is well known. When a question of law arises out of the order of the Board of Revenue it is bound to refer the same to the High Court. If there is refusal by the Board to make a reference, the only thing that the High Court has to see is whether a question of law did arise out of the order of the Board and whether the Board was bot justified in refusing to refer that question to the High Court. Without a reference from the Board of Revenue, the High Court has no jurisdiction to decide that question : M/s. Shree Gopal Industries Ltd. v. The State of Rajasthan and another, AIR 1971 SC 2054 . 6. It is well settled that in dealing with an application under section 15(2) of the Rajasthan Sales Tax Act, which is analogous to section 66(2) of the Income Tax Act, the High Court can require the Board of Revenue to refer only those questions which fall within ambit of sub-section (1) of section 15. That is because the scope of subject-matter of sub-section (2) is co-extensive with that of sub-section (1). That is because the scope of subject-matter of sub-section (2) is co-extensive with that of sub-section (1). The Board cannot be required to refer a question which is a pure question of fact. Nor can the Board be required to refer a question which does not arise out of its order, or which pertains to a point which was not raised before it: Commissioner of Income Tax, Bombay v. Scindia Steam Navigation Co. Ltd., (1961) 42 ITR 589 (SC) and Commissioner of Income tax v. M/s. Chandar Bhan Harbhajanlal, (1966) 60 ITR 188 . It is also axiomatic that if the answer to the question is self evident the High Court will not make a direction to the Board to state a case. 7. In Commissioner of Income Tax v. Scindia Steam Navigation Co. Ltd., (1961) 42 ITR 589 (SC) the Supreme Court explained by a majority reviewing the conflicting case law that the expression "any question arising out of such order" within the meaning of section 66(1) of the Income Tax Act, has a definite legal connotation. They envisaged the following four categories of cases:- "(1) When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order. (2) When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order. (3) When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order. (4) When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it." It, therefore, follows that a question of law not raised before the Board or not dealt with by it in its order cannot be said to arise out of its order even if in consequence thereof, it arises. 8. 8. Applying that test here, the second question sought to be raised by the assessee does not arise, namely,- "Whether under the facts and circumstances of the case the Board of Revenue was justified in directing the assessing authority to tax the sales of the two generating sets under the Central Sales Tax relying on the definition of the word 'business' in the Rajasthan Sales Tax when there is no definition of the word 'business' in the Central Sales Tax Act?" The question did not fall to be determined by the Bord of Revenue. Nowhere has the Board dealt with the question. That is because the assessment was under the Rajasthan Sales Tax Act. Our attention is, however, drawn to the following observations of the Board of Revenue:- "It is evident from the facts of the case that the two generating sets were severed from the foundation in Jaipur and transferred to Bombay. The Division Bench of the Board has held that as movement of goods in the course of inter-State trade or commerce was occasioned in the instant case the tax could be levied under the provisions of the C.S.T. Act, 1956 rather than the R.S.T. Act, 1954. Again, this is a question of fact determined by the circumstances of the case and no law-point arises about which reference could be made to the Hon'ble Rajasthan High Court. Section 6 of the C.S.T. Act, 1956 is quite clear on this point." Further, to the observation:- "The third point framed by the applicant does not arise in the circumstances of the present case. There has been transaction of inter State sale and so the provisions of section 6 of the C.S.T. Act, 1956 are clearly attracted. Even if the term 'business' has not been defined in the C.S.T. Act, 1956 it hardly matters in the circumstances of the present case for there has been sale as defined in section 2 (g) of the C.S.T. Act, 1955." In the first part, the Board of Revenue held that the transaction should be regarded as in the course of inter State trade and commerce within the meaning of section 3(a) of the Central Sales Tax Act and, therefore, the sale was not an intra State sale vis-a-vis State of Rajasthan. In the second part, the Board negatived the contention that the sale of capital goods could not be taxed in the hands of the assessee, as it was not a sale connected with its business. That observation was made in repelling the contention of the assessee based on C.P. Tiber Works v. Commissioner of Sales Tax and others, (1967) 19 STC 1 and The State of Madras v. K.C.P. Ltd., (1969) 23 STC 173 . In view of the enlarged definition of 'business' as contained in section 2(cc) of the Rajasthan Sales Tax Act, the sale of goods which are incidental or ancillary to such business, are taxable even though, the transaction was not effected with a motive to make gain or profit. The matter is squarely covered by sub-clause (2) of the definition of the word 'business' in section 2(cc): State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. and another, (1973) 31 STC 426 (SC) and the District Controller of Stores, Northern Railway, Jodhpur v. The Assistant Commercial Taxation Officer and another, (1976) 37 STC 423 (SC) . 9. The second question formulated by the assessee does not really arise as the Board has held that the sale of the generating sets is not liable to tax under the Rajasthan Sales Tax Act. The Board has not held that in dealing with the question of their tax ability under the Central Sales Tax Act, the assessing authority should have regard to the enlarged definition of the business as contained in section 2(cc) of that Act. The operative part of the Board's order reads:- "As no question of law has arisen out of judgement dated 22.7.1974 of the Division Bench of the Board in revision case No. 330 of 1973 we see no reason to make a reference under section 15 of the R.S.T. Act, 1954 to the Hon'ble Rajasthan High Court. The application for reference is, therefore, refused." 10. We are informed that the assessing authority would now, in consequence of the order of the board of Revenue, serve the assessee with a notice under Section 12. The application for reference is, therefore, refused." 10. We are informed that the assessing authority would now, in consequence of the order of the board of Revenue, serve the assessee with a notice under Section 12. There is yet no order of assessment under the Central Sales Tax Act, and when such proceedings are initiated the assessee would be at liberty to raise the question that the sale of capital goods with a view to release its blocked up capital was not in the normal concept of the word 'business' and was, therefore, taxable in its hands under the Central Sales Tax Act, and that no recourse can be held to the enlarged definition of the word 'business' in section 2(cc) of the Rajasthan Sales Tax Act in making an assessment under the Central Sales Tax Act. the second question cannot, therefore, be said to arise out of the order of the Board of Revenue, as it is still pre-mature. 11. The other question sought to be raised by the assessee, namely - "Whether under the facts and the circumstances of the case the sale of two generating sets made on foundation at Jaipur to M/s. Swan Mills Limited, Bombay, is sale of immovable property or that the transaction is a transaction of sale of sale of goods as defined in Section 2(d) of the Central Sales Tax Act?" cannot also be referred as the answer to the question is self evident. The terms of the sale are embodied in writing dated 22.1.1969 which reads:- "THE PODAR MILLS LTD., BOMBAY" Mesars. Swan Mills Limited, Dated 22.1.1969 Chartered Bank Building, Bombay. Dear Sir, With reference to the personal discussion the undersigned had with your Mr. D'Souza, Managing Director, we have the pleasure in confirming having sold to you the following machines as under:- Two Lister Black Stone Generating Sets on Foundation of Jaipur. Rs. 6,00,000/- Specifications of Sets: Model EVS 8 600 RPM 528 H.P. 457.4 KVA (365 K.W.) 400/440 Volts 3 Phase 50 Cycies working on light Diesel Oil We confirm having received your cheque for Rs. 6,00,000/- (Rs. Six lacs only) as an advance deposit towards the above sale. Yours faithfully, for the Podar Mills Limited, Sd/- Administrative Officer."The term 'on foundation' only meant that the price was exclusive of other charges e.g., cost of dismantling, carriage, freight, etc. which were to be borne by the buyer. 6,00,000/- (Rs. Six lacs only) as an advance deposit towards the above sale. Yours faithfully, for the Podar Mills Limited, Sd/- Administrative Officer."The term 'on foundation' only meant that the price was exclusive of other charges e.g., cost of dismantling, carriage, freight, etc. which were to be borne by the buyer. It did not imply that the sale was of immovable property. The expression 'immovable property' in section 32(37) of the Rajasthan General Clauses Act, 1955, is defined to include 'things attached to the earth,or permanently fastened to anything attached to the earth'. The definition is clearly illustrative and not exhaustive. The phrase 'attached to the earth' is defined in section 3 of the Transfer of Property Act as including (a) things rooted to the earth (b) things embedded in the earth such as buildings, and (c) things attached to what is so embedded. Under the English law, generally speaking, whatever is annexed to the freehold is part of the reality. In the leading case of Holland v. Hodgson, (1972) LR 7 CP 324 Blackbrone J. laid down two test to determine the3 question, viz. (i) the degree or mode of annexation, and (ii) the object of annexation. Of the two tests the latter is the more important, and it is said that this is a question of fact which depends upon the particular circumstances of each case. 12. In Macleod v. Kikabhop, ILR 25 Bom 659 Jenkins, C.J. held upon a consideration of the circumstances of that case that machinery put up by a monthly tenant was not immovable property. In Subramanian Firm v. Chidambaram, AIR 1940 Mad 527 Wadsworth J. pointed out that in order to determine the controversy, regard must be had not merely to the nature by which the engine is fixed to the ground but also to the circumstances in which it came to be fixed and the title of the person in the immovable property to which it was attached. 13. Applying these tests, it was held in J.H. Subbiah v. Govindrao, ILR (1953) Nag 488 that where a person erects a machinery on land of another either as a tenant or licensee, the presumption is that he does not intend the machinery to form part and parcel of the immovable property to which it is attached for the time being. Applying these tests, it was held in J.H. Subbiah v. Govindrao, ILR (1953) Nag 488 that where a person erects a machinery on land of another either as a tenant or licensee, the presumption is that he does not intend the machinery to form part and parcel of the immovable property to which it is attached for the time being. Such machinery is not immovable property as defined in section 3(26) of the General Clauses Act and section 3 of the Transfer of Property Act. The same view has been taken in Chetty & Co. v. Collector, Anatpur, AIR 1965 AP 457 and L.J. Udyog Mancir v. Kalooram, AIR 1965 Raj 15 . The question whether or not machinery installed in a building is immovable property, depends not only upon the degree and nature of attachment to the earth, but also the object of the annexation which is a question of fact to be determined in the circumstances of each case. In determining the question, the intention of the parties must also be considered. When the two generating sets were installed on foundation at the Mills, they were not intended and meant to form part and parcel of the immovable property to which they were attached. The generating sets were to be worked so long they were worked on diesel. The generating sets could be replaced if they went out of order or removed if the Mills found the use of electricity was cheaper than using the generators. That apart, the generating sets were were sold as chattel. In our opinion, the Board of Revenue was justified in refusing to state the case at the instance of the assessee. 14. The application filed by the Commercial Taxes Officer under section 15(3A) must, however, be allowed. The Board has assumed the transaction to be taxable under the Central Sales Tax Act merely because the buyer of Rajasthan in consequence of the sale. That is not the correct legal position. In Tata Iron and Steel Co. 14. The application filed by the Commercial Taxes Officer under section 15(3A) must, however, be allowed. The Board has assumed the transaction to be taxable under the Central Sales Tax Act merely because the buyer of Rajasthan in consequence of the sale. That is not the correct legal position. In Tata Iron and Steel Co. Ltd., Bombay v. S.B. Sardar & ors., (1960) 11 STC 655 (SC) Shah, J. explained the nature of a sale in the course of inter-State trade and commerce within the meaning of section 3(a) of the Central Sales Tax Act, in these words:- "In our view, therefore, within clause (b) of section 3 are included sales in which property in the goods passes during the movement of the goods from one State to another by transfer of documents of title thereto : clause (a) of section 3 covers sales, other than those included in clause (b), in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sales, and property in the goods passes in either State." Thus there must be a direct nexus between the movement of goods and the contract of sale. In other words, the sale must occasion the movement of goods from one State to another, as a result of a covenant or incident of a contract of sale : Kalvinator of Indian Ltd. v. The State of Haryana, (1973) 32 STC 629 (SC) . 15. Here, the transaction in question was nothing but as intra-state sale vis-a-vis the State of Rajasthan. The sale is complete in the case of an ascertained goods if the goods are delivered in the purchaser for agreed consideration. It is admitted on all hands that the delivery of the two generating sets was taken by the Bombay buyer at Jaipur on payment of the price of Rs. 6,00,000/-. The further movement of the goods was not in furtherance of the sale transaction. The Madhya Pradesh High Court is commissioner of Sales Tax, Madhya Pradesh v. Nathani Brothers, Raipur, (1968) 21 STC 465 observed:- ".......the movement of the goods across the border of the State in pursuance of the contract must be for the purpose of delivery of the goods to the buyer and for no other purpose. The Madhya Pradesh High Court is commissioner of Sales Tax, Madhya Pradesh v. Nathani Brothers, Raipur, (1968) 21 STC 465 observed:- ".......the movement of the goods across the border of the State in pursuance of the contract must be for the purpose of delivery of the goods to the buyer and for no other purpose. In that case alone the test laid down by the Supreme Court would apply, but when the delivery of the goods is taken by the purchaser inside a State and the sale transaction is completed, there can be no question of invoking the aid of section 3 for determining the nature of the transaction." It was then observed:- "In our opinion, in order to impress the sale with the character of inter-State trade or commerce, the terms of sale should provide for the delivery being effected in another State,...." The same view has been taken by the Supreme Court in The State of Mysore v. M/s. Guduthur Thimmappa and Son, AIR 1967 SC 1131 . 16. From the foregoing reasons, it follows that the application made by the assessee under section 15(2)(b) of the Rajasthan Sales Tax Act, 1954 must fail and is hereby dismissed. The application filed by the Commercial Taxes Officer under section 15(3A) of the Act must,however, be allowed. We, accordingly, direct the Board of Revenue to state a case and refer the following question to this Court for its opinion, namely,- "Whether in the facts and circumstances of the case, the sale of two generating sets on foundation at Jaipur, amounted to sale in the course of inter-State trade?" *******