TMI Blog1996 (7) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... the driver in the running condition. The respondent No. 2, issued instruction to the driver of the vehicle and asked them to take delivery of the Log Book for the purpose of noting down the mileage of the vehicle. According to the petitioner the rate on account of hiring of the said vehicles were fixed by a letter dated November 8, 1989, issued by the Chief Electoral Officer. The said letter dated November 8, 1989, reads as follows: "Government of Tripura Office of the Chief Electoral Officer No. F.3(42)-CEO/89(Loose)/75-53 Dated, Agartala, the 8th November, 1989. Sub: Fixation of rates of hiring charges of different kinds of private vehicles in connection with Lok Sabha Bye Election, 1989. The Government of Tripura has fixed the rates of hiring charges of different kinds of private vehicles to be used for the ensuing Lok Sabha Bye Election, 1989 is noted against each. Type of vehicle Rate fixed 1.. Jeep Rs. 3.75 per k.m. plus detention charge of Rs. 295 for every 24 hours or proportionate payment for part thereof. 2.. Ambassador/Taxi Rs. 3.75 per k.m. plus detention charge of Rs. 265 for every 24 hours or proportionate payment for part thereof. 3.. Trailer Rs. 80 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said vehicle for the purpose of inspection of polling stations and transport of ballot boxes and polling personnel to and from polling stations and for transport of police forces for maintaining law and order during the conduct of election. As such the operators and owners were asked to place their vehicle for transacting the aforesaid purposes and rate was fixed soon thereafter by the Chief Electoral Officer who has specifically stated in the order passed on February 8, 1989, that the Government of Tripura has fixed the rate on hiring charges of different account of private vehicles to be used for the ensuing Lok Sabha Election. A look at the provision of 160 of the Representation of the People Act, 1951 will show that even a premises immovable property could be requisitioned, so also a motor or animal for the purpose of any duty in connection with election. Such orders have been passed by the authorities under Representation of the People Act, 1951 to conduct the election smoothly and fairly in the public interest. There is no intention under the provision of the said Act to acquire any right in the property either on long or short term basis. The idea that a property or vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t) Act, 1987 3.. Amendment of section 3.-(i) In section 3 of the principal Act, after the first proviso to sub-section (1), the following proviso shall be inserted, namely: "Provided further that the rate of tax on any transfer of the right to use any goods for any purpose (whether or not for a specified period) shall be 4 per cent." Subsequently, the rules were framed by the Government of Tripura, Revenue Department on 18th March, 1989. Rule 3(A)(2) of the said rules read as follows: "3(A)(2). Every person responsible for making payment to any person for discharge of any liability on account of valuable consideration payable for any transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash or in any manner, shall at the time of making such payment, deduct an amount equal to four percentum of such sum towards part or, as the case may be, full satisfaction of the tax payable under the Act on account of such transfer of right: Provided that no such deduction shall be made from the bill(s) or invoice(s) of the transferor,- (a) On account of such transfer where the transfer of right to use goods was agreed to before first day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty in the goods. There is a distinction between a contract of sale as defined in section 4 of the Sale of Goods Act and a transfer of the right to use goods without being accompanied by transfer of ownership in the goods in favour of the hirer. Such a transfer of the right to use goods is a species of bailment. Only upon delivery of the goods, the transferee becomes legally possessed of such goods and entitled to enjoy the use of the goods upon periodic payment or other valuable consideration to the transferor. Since the substance of the right is the enjoyment of the goods, the said transfer is completed only upon the delivery of the goods. The validity of a tax on such transfer of the right to use any goods for any purpose ought not, therefore, to be tested by applying the tests applicable for deciding when property in goods passes as in the case of 'sales' involving passing of property, as defined in the Sale of Goods Act, and as stated in the earlier Supreme Court decisions." 6.. I have considered the submission made by Mr. Saha. His argument is sound legally, however, in the facts of this case, according to me, the provision of the Tripura Sales Tax Act as amended from tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced on the strength of the Constitutional provision of article 366 of the Constitution of India. The said article 366(29-A)(d) reads as follows: "29-A. 'tax on the sale or purchase of goods' includes- (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (c).................. (d) a tax on the transfer of the right to use goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration." 8.. No incidence of "transfer " of the right to use the vehicle is involved in the requisition order. By the said requisition order the authorities are only forcing the transport operators to assist them for the electoral purposes and to allow their vehicle to be used during the election period on hiring basis with driver and petrol or diesel at rate fixed by the Government. It nowhere got any transfer of the right to use the said vehicle for any purpose whatsoever. The authority did not hand over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in the names of the operators and/or owners and the said vehicle remained under the control and supervision of the operators and/or owners through its driver who was an employee of the operators. The operator also provided the petrol and diesel for running and using the same. 9.. Analysing the above discussion I find that there is not a single incidence of transfer of the motor vehicles or the transfer of the right to use the said vehicle is present in the instant case. In my view of the matter the provisions of section 3 of the Tripura Sales Tax Act, 1976 and/or rules framed thereunder have no application whatsoever and the present transaction between the operators and owners who are the members of the petitioner had only hired their vehicles to the respondents at the rate fixed and they are entitled to get payment of the same. If however while making payment respondents have deducted any amount alleging that the same being payable to the sales tax authorities under section 3 of the Tripura Sales Tax Act, 1976 read with rule 3(A)(2) of the 1987 Rules, the same are illegal, wrongful, mala fide and the authorities withholding the said amount must pay back the same to the operat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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