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TMI Blog2022 (7) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... order, the Tribunal affirmed the order of the Assistant Commissioner of Sales Tax (ACST), Cuttack II Range, Cuttack dismissing the Assessee's appeal i.e. Appeal Case No.AA 215 CUII-J/2006-07 by an order dated 8th May, 2007 and confirmed the assessment order dated 27th February, 2006 passed by the Sales Tax Officer (STO), Ward-A, Jagatsinghpur Circle, Paradip. 2. Admit. The following question of law is framed for consideration by this Court: "Whether the work executed as per the work order issued by MCL is taxable under Section 2(g) of the Orissa Sales Tax Act in absence of transfer of property in goods?" 3. The background facts are that the Petitioner was awarded a work order dated 1st April, 2003 by Mahanadi Coalfields Ltd. (MCL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of this Court dated 4th December, 1991 in OJC No.576 of 1988 (Kandoi Transport v. Sales Tax Officer, Assessment Unit, Barbil), where the contract involved work of transportation, loading, unloading and stacking which the Petitioner in that case undertook for the MMTC. The Court there agreed with the Assessee that the work did not involve any transfer of property in goods. It is explained in paras 5 and 6 of the said judgment as under: "5. The enlarged definition of 'sale' pursuant to the amendment brought in by the Constitution (Forty-sixth Amendment) Act, 1982, to the Constitution of India, 1950, and consequent amendments in the Act includes transfer of the right to use any goods for any purpose (whether or not for a specified period) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.J., in Gathercole Vrs. Smith 17 Ch.D. 1. Transfer includes every transaction whether by a party divests himself or is divested of a portion of his interest, that portion subsequently vesting or being vested in another party. Transfer means passage of a right from one person to another. According to Murray's Oxford Dictionary, Volume II, page 257, it means 'to convey or make over title, right or process by deed or legal process.' The first meaning assigned to 'use' is to employ to any purpose. (See Johnson's Dictionary). A mere contract of hiring, without more, is a species of the contract of bailment. In Commissioner of Income-tax, Bombay City I vrs. National Storage Pvt. Ltd. (1967) 66 ITR 596 (SC), the observations of Viscount Finlay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overburden and removing it through tippers and transporting to a dump yard, involved any transfer of property in goods from the Petitioner to the MCL. In absence of any specific finding in that regard by the STO, it could not have been simply presumed that 20% of that work is attributable to 'sale' of goods thereby limiting the deduction only to 80%. In other words, the disallowance of 20% of the hiring charges has to be based on some material which was available to the STO or to the ACST. 10. On the other hand, the facts of the present case appear to be closely aligned with the facts of Kandoi Transport (supra) As in the said case, here too there is nothing to show that the execution of the work order by the Petitioner involved any sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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