2010 (11) TMI 875 - HC - VAT and Sales Tax

Whether there is a transfer of property in the refrigerated vehicles of the petitioner to another concern, as defined in article 366(29A)(d)) of the Constitution of India and section 5E(a) of the Act? Held that - Reading the relevant statutory provisions, it becomes clear that the moment the petitioner sends its trucks to others for transporting the latter s goods to destinations of the latter s choice, the same amounts to transfer of the right to use the trucks, and would be sufficient to infer a taxable event under section 5E of the Act notwithstanding other incidental minor aspects of the contracts. The mere fact that the petitioner retains control over the driver, or that they pay insurance charges for the trucks, is of no consequence. In that view of the matter, we do not find any error in the orders of the learned Tribunal, because the Tribunal correctly relied on way-bills and other relevant documents produced by the petitioner and came to the correct conclusion. In the result, the tax revision case is accordingly dismissed.

Summary

Issues:
Assessment under the Andhra Pradesh General Sales Tax Act, 1957 - Revision of assessment by Deputy Commissioner (DC) - Taxability of hire charges under section 5E of the Act - Interpretation of transfer of right to use goods - Applicability of section 5E of the Act - Burden of proof in revised assessment cases.

Analysis:
The case involved a petitioner, an aqua company engaged in processing and selling prawns, whose assessment under the Andhra Pradesh General Sales Tax Act, 1957 was revised by the Deputy Commissioner (DC) of Commercial Taxes (CT). The revision was based on the receipt of an amount, including truck hire charges, which were not assessed to tax initially. The petitioner contended that they only provided services and did not transfer the right to use their trucks for transporting goods. The petitioner relied on various judgments to support their argument that section 5E of the Act was not applicable to the hire charges. On the other hand, the Revenue argued that the act of transporting goods for a charge constituted a transfer of right to use goods under section 5E of the Act and fell within the ambit of the definition of "sale" as per the Act and the Constitution of India.

The court examined the submissions of both parties and reviewed relevant judgments cited. It noted that the decisions from the Allahabad High Court and other courts did not provide a clear ratio applicable to the present case. The court also analyzed the decisions from the Orissa High Court and the Gauhati High Court, concluding that they were not directly relevant to the case at hand. The court emphasized that the applicability of section 5E of the Act depended on whether there was a transfer of right to use goods, as defined in the Constitution and the Act.

The court delved into the legal provisions, including Article 366(29A)(d) of the Constitution and Explanation IV to section 2(n) of the Act, which defined the concept of "sale" to include the transfer of right to use goods for consideration. It specifically examined section 5E of the Act, which imposed a tax on the amount realized from the transfer of right to use goods. The court concluded that when the petitioner sent its trucks to transport goods for others, it amounted to a transfer of the right to use the trucks, falling within the scope of section 5E of the Act. The court emphasized that control over the driver or payment of insurance charges did not negate the transfer of right to use goods.

Ultimately, the court upheld the orders of the Tribunal, stating that the Tribunal correctly relied on relevant documents provided by the petitioner to reach a sound conclusion. The court dismissed the tax revision case, ruling in favor of the Revenue.