ALPHA CLAYS Vs. STATE OF KERALA

JUDGEMENT

(1.) The short question that arises for consideration in these cases is as to whether the hire - charges received by the assessee in respect of the excavator owned by it and used for excavating clay mine of M/s. Sulekha Clay Mines is liable to be assessed under S.5(1)(iii) of the Kerala General Sales Tax Act, 1963, for short, "the Act".

(2.) All these tax revision cases arise from the common order of the Sales Tax Appellate Tribunal, Thiruvananthapuram, passed in T.A. Nos. 4, 5 and 6 of 2001 filed by the assessee under the Act. Assessee is the revision - petitioner. State of Kerala is the respondent. The assessment years concerned are 1995-96, 1996-97 and 1997-98, respectively.

(3.) During the three assessment years concerned, the assessee had received Rs. 2,88,580, 9,06,280 and 5,61,272 respectively towards lease charges of the excavator from M/s. Sulekha Clay Mines. The assessments of the petitioner for the years 1995-96 and 1996-97 were originally completed wherein the lease charges mentioned above were not included. The assessing authority therefore, initiated proceedings under S.19 of the Act in respect of those two years. The assessment year 1997-98 was pending before the assessing authority at that time. In reply to the preassessment notice, the assessee contended that the lease charges received for the aforesaid three years are not liable to be included in the turnover for the purpose of assessment under the Act for the reason that the assessee had not transferred the right to use the excavator in favour of M/s. Sulekha Clay Mines during these years. The assessing authority had rejected the said contention on the ground that the accounts maintained by the assessee showed that the customer, namely, M/s. Sulekha Clay Mines had incurred expenses for the use of the excavator apart from payment of lease charges. This according to the assessing authority would show that the assessee had delivered possession of the excavator to M/s. Sulekha Clay Mines for their use. This finding of the assessing authority was confirmed by the first appellate authority and by the Tribunal in appeals filed by the assessee.