ORDER S. B. SAKRIKAR, J. - At the instance of the applicant/assessee the Tribunal stated the case and referred the following questions categorised as questions of law by order passed in reference case No. 44/IV/84 arising out of the order dated February 15, 1984, in Appeal No. 124/IV/83 : "1. Whether, on the facts and circumstances of the case, the pulp manufactured by the division (Kerala and Karnataka) of Gwalior Rayon Silk Manufacturing (Weaving) Company Ltd., brought within the local limits of Nagda by the parent division, could the Tribunal justifiably hold that the goods so brought were subject to entry tax under the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 ? 2. Whether, on the facts and circumstances of the case, the Tribunal was justified in not considering the arguments regarding the imposition of entry tax on goods claimed not to have been entered the jurisdiction of local authority, when the points were not raised before the tax assessment authority and the first appellate authority but which went to the jurisdiction of tax authorities ?" 2. The facts of the case stated in brief are that the applicant/assessee is a limited company having its office at Birlagram, Nagda. The company has two pulp plants at Mavoor (Kerala) and Harihar (Karnataka) respectively known as Pulp Division and Harihar Poly Fibers. These two plants manufacture pulp. The pulp is brought to Nagda for further processing. The contention of the assessee is that being the owner of the pulp, the bringing of pulp into local area of Nagda is not subject to entry tax, since the pulp is not subject to entry tax, as the pulp is neither acquired nor obtained by the company. This contention of the assessee/company was not accepted by the tax assessing authority vide order dated May 31, 1979 (annexure B). 3. The assessee filed first appeal before the Assistant Commissioner, Sales Tax, who by its order dated April 11, 1983 dismissed the same. Annexure C is the copy of the order dated April 11, 1983. Aggrieved by the order of the Assistant Commissioner, Sales Tax, the assessee filed and appeal before the Tribunal, which was also dismissed vide order dated February 15, 1984, annexure D is the copy of the order dated February 15, 1984. Annexure C is the copy of the order dated April 11, 1983. Aggrieved by the order of the Assistant Commissioner, Sales Tax, the assessee filed and appeal before the Tribunal, which was also dismissed vide order dated February 15, 1984, annexure D is the copy of the order dated February 15, 1984. It was held by the Tribunal that having regard to the full name of the Entry Tax Act, viz., Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, it cannot be ascertained as to which item is subject to entry tax. It was stated that the Entry Tax Act was brought into force in lieu of the octroi imposed earlier by the local bodies. It was also held by the Tribunal that even the bringing of the pulp by the company to its Nagda office, when it was manufactured by its own division in Mavoor and Harihar is subject to entry tax. It was also contended before the Tribunal that no entry tax is payable on goods processed from the pulp at factory at Bhiwani. With regard to this contention of the assessee, the Tribunal held that as the aforesaid plea was not raised before assessing authority and also from the facts available on record, the plea was not raised before the first appellate authority. As such the Tribunal held that the issue which was not raised before the lower authorities, cannot be permitted to be raised before the Tribunal for the first time in second appeal. 4. On the reference application filed on behalf of the applicant/assessee, the aforesaid questions are referred to by the Tribunal to this Court for its opinion. 5. We have heard Shri P. B. S. Nair, learned counsel for the applicant and Shri Surjeet Singh learned Government Advocate for the non-applicant. 6. Learned counsel for the applicant contended that in view of the definition of "taxable marker value" as stated in section 2(h) of the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (for short, "the Act") as it stood prior to May 1, 1977, the entry tax is payable on the goods which are brought within local area when acquired or obtained by the assessee. The goods in question belonged to the same assessee and as such it cannot be said that on arrival in the municipal limits of Nagda same are acquired or obtained as there is no passing of title from one owner to another owner. As such the pulp in question is not exigible to entry tax. He placed reliance on the following decisions : (i) AIR 1966 Bom 194 (Smt. Salubai Ramchandra v. Chandu Saju). (ii) AIR 1968 Bom 308 (Udhav Shankar Gangawane v. Tarabai). 7. With regard to question No. 2, learned counsel contented that even if the point regarding process of goods at Bhiwani, was not raised before tax assessing authority or before the first appellate court, the Tribunal should have examined this legal point since it went to the root of its jurisdiction for imposition of the entry tax. 8. In oppugnation, learned Government Advocate contended that in view of provision of section 3 of the act, the entry tax is payable on the goods specified in Schedule II or III, when they are brought in the local area by a registered dealer in the course of business for consumption, use or sale. The pulp in question was brought by the assessee/company within the local area of Nagda and as such it is liable for the entry tax under section 3 of the Act. With regard to question No. 2, learned Government Advocate contended that the goods proceed at Bhiwani and its sale to customers outside Nagda without the goods having been brought to Nagda was not raised before the tax assessing authority and also before the first appellate court. In the aforesaid position, the Tribunal was right in refusing permission to raise this contention for the first time in second appeal before permission to raise this contention for the first time in second appeal before the Tribunal. Learned Government Advocate submitted that both the questions referred to by the Tribunal deserve to be decided in favour of the department. 9. With regard to question No. 1 referred by the Tribunal, it is to be seen that when entry tax is chargeable on the goods which are brought in the local area ? For this purpose section 3(1)(a)(b) of the Act is relevant. Relevant portion is extracted as follows : "3. Incidence of taxation. 9. With regard to question No. 1 referred by the Tribunal, it is to be seen that when entry tax is chargeable on the goods which are brought in the local area ? For this purpose section 3(1)(a)(b) of the Act is relevant. Relevant portion is extracted as follows : "3. Incidence of taxation. - (1) There shall be levied and entry tax - (a) On the entry in the course of business of a dealer of goods specified in Schedule II, into each local area for consumption, use or sale therein; and (b) On the entry in the course of business of dealer of goods specified in Schedule III, into each local area for consumption or use of such goods as (raw material or incidental goods) or as packing material or in the execution of works contracts but not for sale therein, and such tax shall be paid by every dealer liable to tax under the (Vanijyak Kar Adhiniyam) who has effected entry of such goods." 10. Considering the provisions of section 3 it is clear that the entry tax under section 3 of the Act is recoverable from a registered dealer when the goods specified in Schedules II and III are brought into the local area in the course of business of the dealer for consumption, use or sale. In the definition of "entry tax of goods into the local area", under section 2(aa) of the Act and entry tax as defined under section 2(b) of the Act and also under section 3(1)(a) contains the words "consumption, use or sale". In section 3(b) of the Act also words "consumption, or use" are mentioned. Section 2(h) of the Act defines "taxable market value" which envisages as to what is meant by "taxable market value" and section 2(1) of the Act declares as to what is meant by "value of goods". These provisions, thus, relate to computation of market value or value of goods. The words "acquired or obtained" occurred in the aforesaid sections had no concern with the levy of entry tax under section 3 of the Act. So far as the question of taxability is concerned, sections 2(aa), 2(b) and 3(1)(a) or (b) are relevant. 11. The Tribunal has rightly held entry tax is substitute for the octroi recovered earlier by the local body under the respective law relating to entry of goods for consumption, use or sale. So far as the question of taxability is concerned, sections 2(aa), 2(b) and 3(1)(a) or (b) are relevant. 11. The Tribunal has rightly held entry tax is substitute for the octroi recovered earlier by the local body under the respective law relating to entry of goods for consumption, use or sale. The entry tax is introduced by the State Government after abolition of the octroi duty. The view taken by the Tribunal is acceptable in view of the decisions of the apex Court reported in AIR 1981 SC 991 (Man Mohan Tuli v. Municipal Corporation of Delhi) and [1990] 77 STC 17; AIR 1990 SC 47 (HMM Limited v. The Administrator, Bangalore City Corporation, Bangalore). In view of the aforesaid legal position, in our opinion, the finding of the Tribunal, on the levy of entry tax on pulp in question brought by the assessee within the local area of Nagda is exigible to entry tax, is well-founded and as such the question No. 1 referred to by the Tribunal deserves to be answered in the affirmative. 12. As regards question No. 2, we find that the objection with regard to the goods proceed at Bhiwani and sold to the customers outside the local area of Nagda without goods having been brought to Nagda, was not raised before the assessing authority and first appellate authority. Point needing no investigation of facts and going to the root of the matter as regards jurisdictional aspect, may be entertained even the last appellate authority. In the instant case, it indisputably needed and investigation and thus, proper proof to establish that goods, as contended were processed at Bhiwani and did not enter at all into the municipal limits in terms of section 3(1) of the Act. It is not the case of the assessee that return under rule 8(1) framed under Act, was filed for the period in question showing non-entry of the goods in question into the municipal limits. In AIR 1968 SC 1461 (Kishanchand Narsinghdas Bhatia v. State Transport Appellate Authority) it is held that facts not brought to the notice of proper authority cannot be agitated in writ petition. The same logic applies to the present proceedings. In [1991] 192 ITR 382; AIR 1992 SC 147 (A. Gasper v. Commissioner of Income Tax) the apex Court held under : "............ The same logic applies to the present proceedings. In [1991] 192 ITR 382; AIR 1992 SC 147 (A. Gasper v. Commissioner of Income Tax) the apex Court held under : "............ It is now well-settled law that the jurisdiction of the High Court in a reference under the Income Tax Act is in the nature of advisory jurisdiction and only such issues can be and are answered as arise properly on the facts and the questions referred to the High Court................" There is no factual foundation about "facts probanda and facts probantia". We, therefore, hold that the plea raised for the first time before the Tribunal was not pure question of law but manifestly depended on investigation into facts as to whether goods were brought in or not. In our view, such a plea is rightly not considered by the Tribunal. We, therefore, hold that the Tribunal committed no error in refusing to entertain such a plea. In view of the aforesaid position, question No. 2, also deserves to be answered in the affirmative. 13. As a result of the forgoing discussions, we answer both the questions in the affirmative, i.e. in favour of the department and against the assessee. We make no orders as to costs. However, counsel's fee for each side is fixed at Rs. 750, if certified. 14. Copy of this order be transmitted to the Tribunal. Reference answered in the affirmative.