COMMISSIONER, TRADE TAX Vs. NAND TRANSPORT CO.

JUDGEMENT

(1.) THESE four revisions under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act") are directed against the order of the Tribunal dated August 3, 1999 relating to the assessment years 1990 -91, 1991 -92, 1992 -93 and 1993 -94.

(2.) OPPOSITE party is a transport company and engaged in transporting the goods of various parties from one place to another. Opposite party owns some tankers. It appears that during the years under consideration, opposite party entered into an agreement with Indian Oil Corporation for the transportation of petroleum products from one place to another and received transportation charges. The assessing authority levied the tax on the transportation charges on the ground that the tankers were provided on hire to Indian Oil Corporation for the transportation of the petroleum products. Thus, there was transfer of right to use the tankers and, therefore, such charges were held liable to tax under Section 3F of the Act. Being aggrieved by the assessment orders, opposite party filed appeals before the Deputy Commissioner (Appeals), who allowed the appeals and set aside the assessment orders. Being aggrieved by the order of the Deputy Commissioner (Appeals), Commissioner of Trade Tax filed appeals before the Tribunal. The Tribunal, by the impugned order, dismissed all the appeals. The Tribunal held that under the terms of the agreement opposite party had to transport the petroleum products from one place to another. All the expenses were being borne by the opposite party and the control and possession of the tanker always remained with the opposite party. In view of above, it has been held that the possession and control of the tankers have never been transferred to Indian Oil Corporation and, therefore, the provisions of Section 3F of the Act were not applicable.

(3.) SRI Nimai Das, learned Standing Counsel very fairly referred to some of the clauses of the agreement, which have been filed along with the supplementary affidavit, particularly Clause Nos. 4, 8 and 9 to show that all the expenses were borne by the opposite party. Permit, etc., under the Motor Vehicle Act were also obtained by the opposite party.