COMMISSIONER, TRADE TAX Vs. OSWAL AGRA MILLS LTD

JUDGEMENT

(1.) PRESENT revision under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, 'the Act') is directed against the order of the Tribunal dated June 16, 1999 relating to the assessment year 1995 -96.

(2.) THE assessing authority had levied the tax on the amount received from M/s. Sudarshan Freight Carrier, Shahjahanpur under Section 3F of the Act on the ground that the opposite party had transferred the right to use 113 trucks to M/s. Sudarshan Freight Carrier, Shahjahanpur. The opposite party filed appeal before the Deputy Commissioner (Appeals), Trade Tax, Moradabad. The Deputy Commissioner (Appeals), Trade Tax, Moradabad vide order dated December 8, 1998 allowed the appeal and deleted the tax levied under Section 3F of the Act. Commissioner of Trade Tax filed appeal before the Tribunal. The Tribunal by the impugned order, rejected the appeal.

(3.) LEARNED Standing Counsel submitted that even though, the Tribunal has observed that, the counsel for the opposite party submitted that though, the trucks were transferred, still held that the present case did not come within the purview of Section 3F of the Act, is erroneous. He submitted that merely because, under the agreement, it has been agreed that the payment towards the insurance charges and other expenses namely road tax., etc., would be paid by the opposite party, it cannot be said that there was no transfer of right to use the vehicles within the purview of Section 3F of the Act, inasmuch as, there was a transfer of possession of vehicle by the present dealer to the opposite party. He submitted that the assessing authority had categorically recorded the finding that the opposite party had transferred the possession of the vehicle to M/s. Sudarshan Freight Carrier, Shahjahanpur for use which has not been set aside by the first appellate authority and the Tribunal. The learned Counsel for the opposite party submitted that as per the agreement, opposite party had only provided the vehicles for transportation of the goods and the possession of the vehicles has never been transferred and thus, the present case is not covered under Section 3F of the Act.