The central legal point established in the judgment is the interpretation of the transfer of right to use goods and the determination of the taxable event under the Assam General Sales Tax Act, 1993.

P.G. Agarwal, J.

1. Both these writ petitions are disposed of by this common order. For the purpose of appreciation, the facts of W.P. (C) 2230 of 1999 are detailed.

2. The petitioners have challenged the deduction of tax at source by the respondents Under Section27 of the Assam General Sales Tax Act, 1993 for short, "the Act", read with rule 35 of the Assam General Sales Tax Rules, 1993 for short, "the Rules".

3. The petitioner, Saumya Mining Pvt. Ltd., had submitted their tender pursuant to the NIT issued by the respondents for the work of removal of hard shale/carbonaceous shale by means of heavy earth moving machinery for an estimated total quality of 29,53 lac cubic metre for three years by Mine No. II of Tirap Colliery. The said work was allotted to the petitioner and the petitioner-company deployed Heavy Earth Moving Machinery, for short "HEMM", for execution of the said work. The petitioner was submitting the bills and getting payments but thereafter, on the basis of a clarification issued by the Commissioner of Taxes, the Superintendent of Taxes at Digboi informed the respondent, North Eastern Coal Fields that the petitioner-company is liable to pay sales tax and this was to be deducted at 5 per cent from the bills submitted by the firm. The petitioner has challenged the said clarification by the Commissioner of Taxes as well as the letter issued by the Senior Superintendent of Taxes, Digboi.

4. The case of the petitioner is that the power to levy sales tax in respect of transfer of right to use any goods was conferred on the State Legislature by the 46th Amendment to the Constitution. The power of the State Legislature to impose sales tax on the sale and purchase of goods emanates from entry 54 of List II of the Seventh Schedule to the Constitution of India. By the 46th Amendment of the Constitution of India, clause (29A) was inserted in article 366 of Constitution of India whereby the scope and ambit of "tax on sale and purchase of goods" was widened and a tax on the transfer of the right to use goods was included within the purview of the meaning of sale and purchase of goods.

5. The stand taken by the respondent-State is discernible from the letter dated March 25, 1999 issued by the Commissioner of Taxes, Assam, which reads as follows:

From the papers relating to contract entered into by M/s. National Mining Company with M/s. North Eastern Coal Fields it appears that the firm is executing works on operating lease with the lessee M/s. North Eastern Coal Fields and it has rented out machinery, cranes, etc. Such renting out of machinery is taxable under item 3 of Schedule VII of the Assam General Sales Tax Act, 1993.

The rent for machinery is indirectly charged and goes to prove the transfer of right of use of such machinery and the lessee having full control over such machinery during the period of use.

The lessee, M/s. North Eastern Coal Fields may, therefore, be advised to deduct tax at the rate of 5 per cent from the bills submitted by M/s. National Mining Company.

6. Dr. A.K. Saraf, learned Senior Advocate for the petitioner, has submitted that the Commissioner of Taxes being a revisional authority under the Act was not expected to give his opinion in a particular case as because against the order passed by the Superintendent of Taxes, appeal lies before him. We do not propose to enter into the above aspect of the matter and intend to examine whether the agreement entered into between the petitioner and the respondent, North Eastern Coal Fields, amounts to lease or not.

7. In order to appreciate the question involved, we may quote some of the relevant provisions of the NIT as below:

1.3 The tenderer or his collaborator/Associate should have sufficient experience in such kind of jobs, in operation and maintenance of HEMM, and have sound financial capability.

9.1. The tenderer has to make his own arrangement for transportation of overburden and coal after collecting the same at pit heads. The drilling will be done as