SYED SHAH MOHAMMED QUADRI. J, J.

( 1 ) THE question which falls for consideration in this writ petition, is the scope of exigibility of sales-tax under Section 5-E of the Andhra Pradesh general Sales Tax Act, 1950 (for short the Act ) on the hire charges collected by a person on supply of machinery for execution of his work to any contractor.

( 2 ) THE sales-tax before the Forty-sixth Amendment of the Constitution was a tax on sales or purchase of goods. But the tax base has undergone a sea-change due to insertion of Clause 29-A in Article 366 by the Constitution (Forty-sixth Amendment) Act, 1982. We may notice here Clause 29-A of article 366. "29a "tax on the sale or purchase of goods" includes (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract. (c) a tax on the delivery of goods on hire purchase or any system of payment by instalments; (d) 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; (e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment of other valuable consideration ; (f) a tax on the supply, by way of or as party of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash deferred payment or other valuable consideration. and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of these goods by the person to whom such transfer, delivery or supply is made. " thereafter, the Sales Tax Acts of the States including the Andhra pradesh General Sales Tax Act were amended. Act 18 of 1985 brought about many changes including insertion of Section 5-E in the Act. Section 5-E of the Act reads as follows : "5-E. Tax on the amount realised in respect of any right to use goods: every dealer who transfers the right to use any goods for any purpose whatsoever, whether or not for a specified period, to anv lessee or licence for cash, deferred payment or other valuable consideration, in the course of his business shall, on the total amount realised or realisable by him by way of payment in cash or otherwise on such transfer or transfers of the right to use such goods from the lesse or licensee, pay a tax at the rate of five paise in every rupee of the aggregate of such amount realised or realisable by him during the year: provided that no such tax shall be levied if the total turnover of the dealer including such aggregate is less than Rs. 1,00,000. "

( 3 ) A perusal of these provisions shows that the scope of tax on sale or purchase is considerably enlarged and that sub-clause (d) of Clause 29-A of article 366 of the Constitution is now the basis of exigibility of tax un der section 5-E of the Act.

( 4 ) AN owner of a property has bundle of rights in it, namely, right to possess, right to use and enjoy, right to usufruct, right to consume, to de-story, to alienate or transfer etc. In law it is not only possible but also per-missble that the various rights and interest may be vested in various persons. While remaining owner of a property, a person may create a charge on the property, mortgage it or lease it. In the transaction of sale, all the rights of owner are transferred to the purchaser and it is said that the property in the goods passes to the purchaser. In a lease of immovable property, there is a transfer of a right to enjoy such property; a lease of land and a bailment of chattels are transactions of essentially the same nature. (Salmond on jurisprudence

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