1. The Petrol Taxation Officer, Jammu (herein after the PTO for short) vide his order dated 25.7.2001, disallowed the shortages shown by the applicant in Form P-4 regarding evaporation loss, selling of downgraded HSD as LDO & use of self-consumption & levied tax as also imposed penalty in terms of Section 5 of the J&K Motor Spirit and Diesel Oil (Taxation of Sales) Act, 2005 Smvt (herein after referred to as the Act 2005 only). Although the applicant assailed the said order of the PTO before the Appellate Authority (Deputy Commissioner, Sales Tax, Appeals, Jammu), the applicant remained unsuccessful. An appeal was filed against the order dated 31.7.2003 challenging the order of the Appellate Authority in 2nd appeal & this Tribunal partially accepted the appeal by its order dated 18.3.2008 in as much as it quashed the imposition of penalty imposed by the PTO & confirmed by the Appellate Authority. Still aggrieved by the order of this Tribunal (supra),the applicant has filed this application seeking to make a reference to the Hon'ble High Court in terms of Section 12-D of the J&K General Sales Tax Act, 1962 (herein after the Act ) 2. Through this reference application filed under Section 12-D of the ST Act, Sh.Datta, learned advocate appearing for the applicant has raised an interesting but important question intrinsic value of law with respect to the interpretation of the definition of sale as incorporated in Section 2(h) of the J&KMSDOT Act,2005. Before proceeding to reach any conclusion, it would be profitable to have a survey of the relevant provision of Section 2(h) of the Act 2005. It is as under: (h) "Sale" means a transfer of motor spirit or diesel oil for cash or deferred payment or other valuable consideration and includes its consumption by the dealer for his own use. It is clear from the above definition that sale, in order to be complete as defined in Section 2(h) of the MSDOT Act 2005, must qualify the following- (a) that there is transfer (agreement of sale) of motor spirit or diesel oil; (b) that such transfer must be in lieu of cash, or deferred payment or any other valuable security; and (c) that such sale includes consumption of motor spirit or diesel oil by the dealer for his own use. A bare look at the definition would show that the definition is a constituent of two inseparable but distinguishable parts. Its first part is restrictive in nature whereas the latter part, after the use of the words and includes, obviously makes the defintion inclusive in nature. In so far as the restrictive part is concerned it postulates that there cannot be any sale of motor spirit or diesel oil under the Act-2005 unless it is followed by payment in cash or through deferred payment or valuable considerations. But in order to further extend the scope & import of the definition of sale in the enactment, the legislature in its wisdom; it appears, included in the definition of sale the consumption of motor spirit or diesel oil, by the dealer for his own use as well. It is therefore unambiguously clear that in view of the extended scope of the definition of sale i.e. in second part of Section 2(h) of the Act 2005, where a dealer consumes the motor spirit or diesel oil for his own use, the ingredients of payment of cash etc in lieu of such transfer (sale) of motor spirit or diesel oil have been purposely omitted from the definition of sale under section 2(h) of the Act-2005. Obviously, therefore, in a case where a dealer transfers some quantity of motor spirit or diesel oil from his stock to himself for the purpose of his own consumption, the legislature has very wisely omitted the payment of money in cash etc by him, as it will be only ridiculous & hollow formality & still such transfer of the motor spirit or diesel oil by the dealer to himself would amount to sale & hence taxable. It may be noticed herein that while interpreting a statute the legislative intent behind a particular provision cannot be ignored. 3. It is unambiguously deducible from the above that a dealer must transfer (sell) motor spirit or diesel oil i.e. tangible goods in lieu of money etc and yet the sale so defined in section 2(h) of the Act also brings into its folds consumption of motor spirit or diesel oil by the dealer by himself, in which case the very essential feature of payment of money etc is conspicuously missing. It is thus clear that the first part of the definition of sale is restrictive whereas the later part is inclusive in nature. It has been held in a number of cases by the Hon'ble Supreme Court of the country and in a very recent case Ramanlal Bhailal Patel & Ors v. State of Gujrat, 2008 SupremeToday at page 731, para 15 that Where the definition is an inclusive definition, the use of the word includes indicates an intention to enlarge the meaning of the word used in the Statute. Consequently, the words must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that that they shall include. Thus where a definition used the word includes, as contrasted from means, the word defined not only bears its ordinary popular and natural meaning, but in addition also bears the extended statutory meaning.(S.K.Gupta v. K.P.Jain, AIR 1979 SC 734 followed) (Emphasis is mine) This clearly shows that by way of an inclusive definition the legislature intend to amplify the statutory meaning of the particular term or word, as the case may be. On the same analogy it can be safely held that the legislature has intentionally included in the definition of sale under Section 2(h) of the Jammu and Kashmir MSODT Act 2005, the words, consumption of motor spirit or diesel oil by the dealer for his own use. 4. That by itself is not enough. The all time recognized definition of sale always has an essential component in it & that is that there must be payment of money etc or a promise to pay in lieu of the goods sold. The essence of a contract of sale is the transfer of title to the goods for a price paid or promised to be paid (see AIR 1968 SC 784 at page 787) This is based on sound principle that one cannot sell any goods etc to himself as in that case the payment of money etc will be missing .Moreover title will also not shift. This kind of definition existed in Madhya Pradesh Sales of Motor Spirit and Taxation Act, 1957 but the Hon'ble Supreme Court struck down this part of self consumption to be included in the definition of sale as ultra vires in case titled Bhopal Sugar Industries Ltd Vs. This kind of definition existed in Madhya Pradesh Sales of Motor Spirit and Taxation Act, 1957 but the Hon'ble Supreme Court struck down this part of self consumption to be included in the definition of sale as ultra vires in case titled Bhopal Sugar Industries Ltd Vs. Bhopal Sales Tax Officer, reported in Sales Tax Judgment(SC),Vol.VII at page 5816 (791), wherein their Lordships said, In the instant appeals, we are only concerned with the consumption by the appellant of the quantity of petrol for its own purpose which has been, as we have indicated, treated as a sale and therefore exigible to sales tax. In the said Madhya Pradesh Act, the term sale is defined as under: "Sale" with all its grammatical variations and cognate expressions means transfer of motor spirit for cash or deferred payment or for other valuable consideration and includes transfer of motor spirit by a society or club or any association to its members, but does not include a mortgage, hypothecation, charge or pledge; Explanation I. - Consumption of motor spirit by a dealer himself or on his behalf shall be deemed to be a "sale"; Explanation II - A sale of motor spirit deemed to be a sale inside the State within the meaning of sub-s. (2) of S. 4 of the Central Sales Tax Act, 1956 (74 of 1956), shall also be deemed to be sale inside the State for the purposes of this clause." Thus it would appear that in order to satisfy the conditions of "sale" under the definition of the Act, the following conditions must be satisfied: (i) that there should be a transfer of motor spirit from the seller to the buyer; (ii) that the transfer must be for valuable consideration which may be either cash or deferred payment; and (iii) that the transfer must not be in the nature of a mortgage, hypothecation, charge or pledge. Under Explanation I, consumption of motor spirit by a dealer himself or on his behalf shall be deemed to be a sale. But this Explanation has already been held to be ultra vires by this Court in the previous Bhopal Sugar Industries Ltd.'s case. Thus the essence of the matter is that in a contract of sale, title to the property passes on to the buyer on delivery of the goods for a price paid or promised. But this Explanation has already been held to be ultra vires by this Court in the previous Bhopal Sugar Industries Ltd.'s case. Thus the essence of the matter is that in a contract of sale, title to the property passes on to the buyer on delivery of the goods for a price paid or promised. Once this happens the buyer becomes the owner of the property and the seller has no vestige of title left in the property. The concept of a sale has, however, undergone a revolutionary change, having regard to the complexities of the modern times and the expanding needs of the society which has made a departure from the doctrine of laissez-faire by including a transaction within the fold of a sale even though the seller may by virtue of an agreement impose a number of restrictions on the buyer, e.g., fixation of price, submission of accounts, selling in a particular area or territory and so on. These restrictions per se would not convert a contract of sale into one of agency, because in spite of these restrictions the transaction would still be a sale and subject to all the incidents of a sale. A contract of agency, however, differs essentially from a contract of a sale inasmuch as an agent after taking delivery of the property does not sell it as his own property but sells the same as the property of the principal and under his instructions and directions. Furthermore, since the agent is not the owner of the goods, if any loss is suffered by the agent he is to be indemnified by the principal. This is yet another dominant factor which distinguishes an agent from a buyer - pure and simple. In Halsbury's Law of England, Vol. 1, 4th Edn., in para 807 at p. 485, the following observations are made. 4. From the above, it can be safely inferred that the quantity of motor spirit or diesel oil which is said to have been consumed by the dealer himself for his own use, does not, by any means, become sale, legally speaking & hence exigible to tax & any interpretation to outwit the import of the definition is unacceptable to law as such an attempt had been struck down by the Apex Court of the Country in the Madhya Pradesh Act (supra) as ultra vires. In para 8 at page 5818,it is held as under: 8. Consumption by an owner of goods in which he deals is therefore not a sale within the meaning of Sale of Goods Act and therefore it is not sale of goods within the meaning of entry 54, List II, Schedule VII, of the Constitution 5. In view of the above, this Tribunal holds that there is much substance in the application under Section 12-D of the ST Act & I have every reason to comprehend that an important question of law certainly arises out of the impugned order of this Tribunal, which must be referred to the Hon'ble High Court. The prayer for making a reference to Hon'ble High Court is therefore accepted & a reference is made for determination by the Hon'ble High Court as to whether sale of motor spirit & diesel oil by the petrol dealer to himself for his own consumption falls within the definition of sale and that the second part of definition of sale in S.2(h), as above said, is not ultra vires ? 6. The Deputy Registrar shall complete the files in all respects & submit to the Registrar J&K High Court, at Jammu for appropriation action at his end. The delay caused in the disposal of this application is due to unavoidable circumstances in which courts/Tribunal functioning could not take place due to unprecedented uncanny bandhs & curfews in the state due to infamous public strikes over Lord Amarnath Cave land dispute with the State government. Both the parties shall be entitled to a copy of this order each to be furnished by the Dy. Registrar. Application is accordingly disposed of.