MOHD WASIM KHAN Vs. COMMISSIONER, TRADE TAX

JUDGEMENT

(1.) PRESENT for revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 3^rd July. 1998 relating to the assessment years, 1987 -88, 1988 -89 and 1989 -90.

(2.) BRIEF facts of the case are that the applicant is a owner of buses and have entered into a contract with Indian Fanners Fertiliser Cooperative Limited. Phoolpur, Allahabad, M/S Bharat Pump and Compressors Limited, Naini, Allahabad and the General Electric Company of India Limited, Naini, Allahabad for providing the buses for the transportation of their employees from their place of residence to the factory to and fro. In pursuance of the contract, buses were provided and hire charges were received as per contract. Assessing authority levied the tax on the hire charges received from the aforesaid companies under Section 3 -F of the Act towards transfer of right to use the buses. Orders of the assessing authority have been continued in first appeals. Applicant filed second appeals before the Tribunal. Tribunal by the impugned order allowed the appeals in part. Tribunal has reduced the turnover but upheld the orders of the assessing authority levying the tax of the hire charges under Section 3 -F of the Act.

(3.) LEARNED Counsel for the applicant submitted that the buses were provided to IFFCO, BPCL and GEC, companies for transportation of their employees from their residence to the factory and from factory to their residence. He submitted that the effective control over the vehicles have never been passed on to the aforesaid three companies and always remained with the applicant. He submitted that the driver and other employees of the vehicles were of the applicant; Road permit was in the name of the applicant; diesel and other maintenance expenses were borne by the applicant; Prices were fixed with reference to the kilometer; applicant had to take the insurance for the vehicles and the workmen. It was also agreed that in case of failure to provide the vehicle every day, the applicant would be liable for penalty and the earnest money would be forfeited. On these facts, it is submitted that the possession of the vehicles were never given to the aforesaid companies and the effective control over the vehicles were always remained with the applicant. He submitted that for the levy of tax under Section 3 -F of the Act under the transfer of right to use the goods, the transfer of possession is sin -qua -non. In support of his contention he relied upon the decision of the Apex Court in the case of State of A.P. v. Rashtriya Ispat Nigam Ltd. reported in , Division Bench decision of this Court in the case of Ahuja Goods Agency v. State of A.P. reported in, 1997 NTN (11) 484, Commissioner of Trade Tax v. Jamuna Prakash Jaiswal reported in, 2005 NTN (28) 156, Commissioner of Trade Tax v. S/S Sunil Agrawal reported in, 2006 NTN (29) 98 and the latest judgment of the Apex Court in the case of Bharat Sanchar Nigam Ltd and Anr. v. Union of India in Writ Petition (Civil) No. 183 of 2003 decided on 2^nd March, 2006.