TMI Blog2010 (11) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... acts. 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. - 270 of 2010 - - - Dated:- 3-11-2010 - RAO V.V.S. AND RAMESH RANGANATHAN , JJ. ORDER:- The order of the court was made by V.V.S. RAO J. The petitioner is an aqua company. They are dealers in processing and selling prawns. They are dealers on the rolls of Commercial Tax Officer (CTO), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not adduce any evidence, the plea of the petitioner that they only rendered service and did not effect transfer of right to use their trucks for transporting the produce of other aqua firms. The counsel would urge that as and when the petitioner's custom built refrigerated trucks are idle, so as to help other peers in the business, they sent trucks and collect nominal charges, and that the travel and other staff as well as the truck operations are controlled by the petitioner itself and they never come under the control or possession of other concern to whom the trucks are sent. Therefore, he would urge that section 5E of the Act is not attracted and the hire charges cannot be taxed. He relies on Commissioner, Trade Tax v. Jamuna Prosad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are used for transporting the prawns and other goods of other aqua companies and others, notwithstanding the control over the driver, there is deemed to be sale under section 5E of the Act. According to the senior counsel, the vehicle is given by the petitioner to other concern alone for a specified period and that would be sufficient to infer the taxable event for the purpose of section 5E of the Act. We have considered the submissions of the counsel and perused the impugned order and various decisions cited by the petitioner. The four decisions of the Allahabad High Courts, all by honourable Justice Rajes Kumar, were held against the Revenue holding that being a question of fact, a revision would not lie. There is no ratio in any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether 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 is always a question, for first appreciating and considering the taxable event and the applicability of the law. If the first thing is absent, there is no question of applying 5E of the Act. But, if on considering the taxes, the attending circumstances and the contract of sale, it is reasonably possible to infer that there is indeed transfer of right to use the refrigerated vehicles by the petitioner. The decided cases, though of guidance, may not govern the case on hand. Article 366(29A)(d) of the Constitution is to the effect that, tax on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal turnover of the dealer including such aggregate is less than Rs. 2 lakhs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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