COMMISSIONER, TRADE TAX Vs. PRINCE TOURISTS BUS SERVICE

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 March 3, 2003 relating to the assessment year, 1996 -97 by which the Tribunal has confirmed the order of the first appellate authority.

(2.) THE dealer -opposite party (hereinafter referred to as "the dealer") had provided buses to M/s. BPL Sanyo Utilities and Appliances, Noida and Escort Yamaha Motors Limited under the agreement for the transportation of their employees from their residence to factory and factory to their residence at a specified amount. The assessing authority levied the tax on the amount received under Section 3F of the Act treating the transaction as transfer of right to use the goods. The first appellant authority allowed the appeal and deleted the tax. The first appellate authority held that under the agreement, buses were provided only for the transportation of the employees from their residence to factory and from factory to their residence against the specified amount. The driver and conductor were of the dealer and buses were operated for the limited hours. The Tribunal held that the buses were never transferred for use to the company and under the agreement, there was nothing to show that the custody of the buses was being transferred by the dealer to the company for use. In this view of the matter, the Tribunal held that there was no transfer of right to use the buses. I do not find any error in the order of the Tribunal. The assessing authority has not made out any case that under the agreement, the possession or the control of the buses were transferred for use to the company. Buses were only provided for transportation of the employees of the company from their residence to the factory and from factory to their residence at a specified rate during the specified hours. The driver and conductor were of the dealer. There is no case that at any point of time the possession and control of the buses were transferred to the company. In the case of Bharat Sanchar Nigam Ltd. v. : [2006]282ITR273(SC) , the Constitution Bench of the apex court held that in a case of transfer of right to use, the goods should be in a deliverable stage and at some stage it should be delivered.