Jasper Aqua Exports Private Limited vs State of A.P.

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), Chinawaltair, Visakhapatnam. For the year 2002-2003, the CTO finalized assessment under Andhra Pradesh General Sales Tax Act, 1957 (the Act, for brevity) vide proceedings dated 23.10.2005, determining the net turnover of Rs. 48,52,540/- out of the gross turnover of Rs. 3,96,63,230/-. The Deputy Commissioner (DC), Commercial Taxes (CT), Visakhapatnam, noticed that the Petitioner received an amount of Rs. 68,61,894/- as per the trading account, which included truck hire receipts of Rs. 11,76,786/-. As these receipts were not assessed to tax, the DC proposed to revise the Order u/s 20(2) of the Act and issued revisional show cause notice. In response to which, the Petitioner sought personal hearing. The same was afforded, during which objections were filed. Considering those objections, by proceedings, dated 05.03.2009, the DC revised the assessment and determined the net turnover of Rs. 59,42,150/- assessable to tax. This includes an amount of Rs. 10,89,620/- being hire charges u/s 5E of the Act, on which tax at 8% (Rs. 87,169/-) was levied. The Petitioner, then, appealed u/s 21 of the Act to the Sales Tax Appellate Tribunal (the Tribunal, for brevity). They were unsuccessful. Their appeal having been dismissed by the impugned order, dated 18.12.2009, the dealers are in revision u/s 22 of the Act.

The counsel for the Petitioner submits that in a case of revised assessment, the burden lies on the Revenue. As they did 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 The Commissioner, Trade Tax Vs. Jamuna Prakash Jaiswal, , Commissioner of Trade Tax Vs. D.R. Zindal and Sons, , CIT v. Regional Manager (2008) 16 VST 226 (All), Commissioner, Trade Tax Vs. Nand Transport Co., , IOCL v. Commissioner of Taxes5 (2009) 22 VST 70 (Gau), R.P. Kakoti v. ONGC6 (2009) 22 VST 136 (Gau), State of Orissa v. Dredging Corporation of India (2009) 25 VST 522 (Ori) , Commissioner, VAT, Trade and Taxes Department Vs. International Travel House Ltd., , State of Andhra Pradesh and Another Vs. Rashtriya Ispat Nigam Ltd., and Rashtriya Ispat Nigam Limited v. Commercial Tax Officer1 (1990) 77 STC 1820 (RINL).Per contra, the special counsel for CT11 submits that when the show cause notice was issued by the DC (CT), the Petitioner admitted that they undertook the transport of the goods given by the customer and charged amount for transport. This would be sufficient to come within the ambit of Section 5E of the Act read with Explanation IV to Section 2(n) (definition of ''sale'') of the Act. He also invites the attention of this Court to Article 366(29A)(d) of the Constitution of India. He would urge that the moment the Petitioner''s trucks 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'' u/s 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 Allahabad High Courts, all by Hon''ble 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 these Judgments. Insofar as the case from Orissa High Court in Dredging Corporation is concerned, it was also decided on the facts applying the test of transfer of control over the goods. The decision in Gauhati High Court in Indian Oil Corporation is a case of alleged transferee hiring the oil tankers for supply of petroleum tankers to dealers, and therefore, the Court therein held that there is no transfer of right to use the goods. These decisions are of no assistance to the Petitioner in the factual background herein.

We have also perused the decision of this Court in RINL, which is confirmed by the Supreme Court in State of Andhra Pradesh v. Rashtriya Ispat Nigam Limited as well as Bharat Sanchar Nigam Ltd. and Another Vs. Union of India (UOI) and Others, Before turning to the core issue, we may observe that the decision of a coordinate Bench or the Supreme Court is not binding as such. What is binding is the law laid down in the precedent and the ratio that can be culled out from the decisions cited. A decision is an authority for what it decides and to say that a decision of the superior Court has universal application irrespective of the discernible and drastically deviating factual background is to disrespect the precedent itself. A case involving a mixed question of fact and law, as in this case; 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 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 the sale or purchase of goods" includes "a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration". As per Explanation IV to Section 2(n) of the Act defines ''sale'' as including'', "a transfer of right to use any goods for any purpose for any period for monetary or non-monetary consideration shall be deemed to be a sale". We may quote Section 5E, which is relevant for reference.

5E. Tax on the amount realized in respect of any right to use goods:

Notwithstanding anything contained in this Act:

(a) Every dealer who transfers the right to use any goods for any purpose, whatsoever, whether or not for a specified period, to any lessee or licencee for cash, deferred payment or other valuable consideration, in the course of his business shall, on the total amount realized or realizable by him by way of payment inc ash or otherwise on such transfer or transfers of the right to use such goods from the lessee or licencee, pay a tax at the rate of eight paise on every rupee of the aggregate of such amount realized or realizable by him during the year;

(b) the transfer of right to use any such goods entered into by any dealer, shall be deemed to have taken place in this State whenever the goods are used within the State, irrespective of the place where the agreement whether written or oral for such transfer of right is made.

Provided that no such tax shall be levied if the total turnover of the dealer including such aggregate is less than Rs. two 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 u/s 5-E 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. No costs.