JUDGMENT

GOSWAMI, J. :—This appeal by special leave is directed against the judgment of the Patna High Court in a reference under Section 21B (1) of the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 (briefly the Act) as amended.

2. The facts as appearing from the statement of case annexing the various orders of the authorities may briefly be stated :

3. The appellant, M/s. National Transport Company, is a transport undertaking without its transport. The appellant (hereinafter to be described as the assessee) was the sole transporter by the Associated Cement Company at Sindri (briefly the company) from Sindri to different stockists at various places in Bihar and West Bengal. In order to have some sort of uniformity in price at different places the manufacturing company used to fix the transport charges according to a schedule. The assessee s contract with the manufacturing company commenced some time on October 12, 1963. Since the assessee did not have its own fleet of trucks covered by public carrier permits belonging to various persons at different times for transporting the cement. The assessee was not registered under Section 4 of the Act. On September 3, 1966, there was a surprise inspection of the office of the assessee and certain books of accounts containing accounts of transport charges realised by the assessee for transporting of cement from the Sindri factory to the stockists in Bihar and West Bengal were seized. The assessee also produced some books of accounts during the hearing before the Officer. The assessee maintained his accounts ledger-wise in respect of the transport charges realised and realisable from different stockists of Bihar and West Bengal for transport of cement by it from the Sindri factory to their godowns. There were two ledgers. One was party-wise showing charges realised or realisable from the stockists and the other truck wise showing hire charges paid to various trucks. The assessee also produced a list of trucks showing the names of the truck owners with their respective places of residence. Out of thirty six trucks, twenty four were registered in Bihar and twelve in West Bengal. Agreements with 1076 the truck owners were also produced by the assessee. The bills from the petrol supplying company which were paid by the assessee were also filed showing the total amount and the truck-wise amount. The ledger party-wise showed rates charged from the stockists. The ledger truck-wise showed hire charges and also deductions on account of petrol, diesel and other lubricants and also for loss in the way as per agreement.

4. On the basis of the statement furnished by the assessee as corroborated by the books of accounts maintained by it the Assessing Officer determined the total taxable amount and imposed a tax of Rs. 1,41,618.37 by his order of November 1, 1965. A penalty of Rs. 5000/- was also imposed under Section 7 (5) of the Act.

5. The assessee appealed to the Additional Deputy Commissioner of Commercial Taxes without success. Thereafter the assessee preferred an application in revision before the Commercial Taxes Tribunal, Bihar, which also met with the same fate.

6. The Tribunal, however, on the application of the assessee under Sec. 21-B (1) of the Act referred the following question of law to the High Court.

"Whether in the facts and circumstances of the case the Tribunal has rightly held the applicant to be the owner of the vehicles within the meaning of Section 2 (d) of the Act and whether the imposition of tax and levy of penalty was legal and justified."

7. The High Court noted the facts found by the Tribunal as follows :-

"(a) The assessee was the sole transporting company of the cement of the manufacturing company,

(b) it had engaged certain trucks for use in his (sic) transport work,

(c) it was providing petrol and oil for the running of the trucks in the transport work, although the prices paid by the assessee were later on adjusted in the hiring