RADHEY SHYAM JAISWAL Vs. COMMISSIONER OF TRADE TAX

JUDGEMENT

(1.) THIS revision is directed against the order of the Tribunal dated July 11, 2002 for the assessment year 1990 -91.

(2.) THE assessing authority initiated proceeding for the assessment year 1990 -91 on the basis of the information received that the applicant provided bus No. U.P. -70/A9081 to IFFCO Phulpur on hire and received the hire charges. On the basis of the information, an ex parte order was passed on March 31, 1995 and tax was levied on the hire charges under Section 3F of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'the Act'). The first appeal filed by the dealer was rejected and the second appeal has also been rejected by the Tribunal.

(3.) LEARNED Counsel for the applicant submitted that the assessing authority has passed the ex parte order without giving proper opportunity of hearing to the applicant. He further submitted that the copy of the contract, which is annexure 1 to the revision, reveals that vehicle was provided for the transportation of their employees from one place to another place while the physical control over the vehicle always remained with the applicant and therefore at no point of time there was transfer of right to use the vehicle by the applicant to IFFCO. He submitted that the apex court in the case of Bharat Sanchar Nigam Ltd. v. Union of India reported in [2006] 145 STC 91: [2006] 3 VST 95 : [2006] 29 NTN 307 has held that for the transfer of right to use the goods the goods must be in a deliverable stage and at some stage it must be delivered. Since the assessing authority has passed the ex parte order, the copy of the agreement has not been considered.