TMI Blog2000 (7) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... cant, is a sister concern. When the Commercial Tax Officer, Park Street Charge, respondent No. 2 was making assessment of tax payable by the company for the four quarters ending September 30, 1987 (hereinafter referred to as "the relevant period") "in course of examining the books of accounts" he detected that the dealer had received hire charge of Rs. 3,90,000 (dumper hire charge of Rs. 60,000 + loader hire charge of Rs. 90,000 + crane hire charge of Rs. 2,40,000). Respondent No. 2 considered this hire charge as proceeds of transactions which amounted to sale in terms of section 2(g)(ii) of the 1941 Act, though he did not say in his order of assessment why he considered them so and what were the documents that led him to his conclusion. He then mentioned in the assessment order that the dealer's representative submitted on the first date of hearing that the transaction did not amount to sale, that he was given sufficient opportunity to prove his contention, but on two consequent dates of hearing, the representative failed to justify his stand by producing tenable documentary evidence. 3.. He did not say in his order what was the reason behind the dealer's contention, nor did he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e drivers were supplied along with the instruments or not". The Board noticed, "there is nothing to show that the dealer imposed any restriction at the time when those instruments were actually used by the beneficiary". It also noticed that in the profit and loss account of the company, the amount of Rs. 3,90,000 had been shown as hire charges. On the basis of these, the Board in deciding the revision petition concluded that the decisions of the Calcutta High Court in the case of the Bank of India [1987] 67 STC 199, and of the West Bengal Taxation Tribunal in the case of the Modern Decorators [1990] 77 STC 470, have no applicability. Revision petition was therefore rejected. 5.. Mr. P.G. Goswami, learned advocate appearing for the applicants, submitted that the applicant never gave on hire to anybody the dumper, the loader, or the cranes, but had actually used those machineries, with the help of driver operators, to do job work, i.e., to execute definite pieces of work entrusted to the applicant by its sister concern M/s. Central Concrete and Allied Products Limited. The entry in the profit and loss account describing the receipts as hire charge is simply the result of a clerical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneficiary determined how to use them and when". This shows, according to Mr. Gangopadhyay, that the Board examined the question whether the applicant was executing job work or not. He adds that no evidence was produced before the Board to show that the applicant retained control when the instruments were used by the sister concern. Therefore, the Board came to the conclusion that those instruments were given to the user with the driver. The Board did not avoid its duty, as the last fact finding authority to adjudicate on the points of fact raised before it, and came to the legal conclusion that the transactions concerned amounted to sale under section 2(g)(ii) of 1941 Act. The applicant has relied on the decision in the case of Bank of India v. Commercial Tax Officer, Central Section, Calcutta reported in [1987] 67 STC 199 (Cal) at the time of hearing before the Board as well as before us. The Board had observed that the ruling was not applicable in this case as it is clearly distinguishable. Mr. Gangopadhyay, maintained that the situation in the present case was such that the hirer had greater control over the hired item than he can have on his hired bank lockers. The Board had o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir payment, were produced before those authorities. The second fact that the applicant mentioned for consideration is that the machineries (with the drivers) were not hired out by the applicant, but were used by the applicant "on the labour and service basis" (para 6 of the petition) keeping the control of said machines completely with the applicant. The correctness or otherwise of this assertion can be most easily checked from by a reference to the agreement in this respect. But the agreement was oral, as the applicant says in the petition. An indication of the terms of the agreement might be found if one examined the bills raised in this respect by the applicant or the receipts given for payments received from M/s. Central Concrete and Allied Products Limited. But we do not find that the applicant invited attention of the appellate and revisional authorities to these or similar other documents, or that those authorities took note of them. Instead, we find that the assessing officer, respondent No. 2 noted in his order dated August 31, 1991 that the dealer's representative absolutely failed to justify their contention by way of producing tenable documentary evidence, and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant whose only concern is the hire and safety of the machineries let for hire. For appropriate handling of such costly machineries the applicant may have to send its own machine-operators (exactly what has happened in the instant case) but the same alone will not mean that the applicant was given contract of accomplishing the job, unless, as already pointed out the applicant has materials to prove that he undertook any job contract and utilised the machineries for the purpose. 10.. In spite of the fact that M/s. Central Concrete and Allied Products Limited is the applicant's sister concern, no document has come to identify the jobs which the applicant claims to have undertaken to accomplish by using its men and machineries. The decision in the case of Bank of India v. Commercial Tax Officer, Central Section, reported in [1987] 67 STC 199 (Cal) has elaborately discussed the nature of control exercised by the bank on the lockers (given to the customer for use against charges) vis-a-vis that exercised by the customer, leave little to question that such hiring does not come within the ambit of section 2(g)(ii). The Board in discussing the ratio of the decision in the case of Modern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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