The short question that arises for consideration in these cases is as to whether the hire-charges received by the assessee in respect of the excavator owned by it and used for excavating clay mine of M/s. Sulekha Clay Mines is liable to be assessed under S.5(1)(iii) of the Kerala General Sales Tax Act, 1963, for short, "the Act".

2. All these tax revision cases arise from the common order of the Sales Tax Appellate Tribunal, Thiruvananthapuram, passed in T.A. Nos. 4,5 and 6 of 2001 filed by the assessee under the Act. Assessee is the revision-petitioner. State of Kerala is the respondent. The assessment years concerned are 1995-96,1996-97 and 1997-98, respectively.

3. During the three assessment years concerned, the assessee had received Rs. 2,88,580, 9,06,280 and 5,61,272 respectively towards lease charges of the excavator from M/s. Sulekha Clay Mines. The assessments of the petitioner for the years 1995-96 and 1996-97 were originally completed wherein the lease charges mentioned above were not included. The assessing authority therefore, initiated proceedings under S.19 of the Act in respect of those two years. The assessment year 1997-98 was pending before the assessing authority at that time. In reply to the pre-assessment notice, theassessee contended that the lease charges received for the aforesaid three years are not liable to be included in the turnover for the purpose of assessment under the Act for the reason that the assessee had not transferred the right to use the excavator in favour of M/s. Sulekha Clay Mines during these years. The assessing authority had rejected the said contention on the ground that the accounts maintained by the assessee showed that the customer, namely, M/s. Sulekha Clay Mines had incurred expenses for the use of the excavator apart from payment of lease charges. This according to the assessing authority would show that the assessee had delivered possession of the excavator to M/s. Sulekha Clay Mines for their use. This finding of the assessing authority was confirmed by the first appellate authority and by the Tribunal in appeals filed by the assessee.

4. Sri N.N.D.- Pillai, learned counsel appearing for the assessee, submits that in order to attract the provisions of S.5(1)(iii) of the Act, there must be a transfer of the right to use the excavator. The counsel submits that in the instant case, there is absolutely no material on record to show that the assessee had parted with possession of the excavator during the period of lease in favour of M/s. Sulekha Clay Mines. The counsel also submits that the only material available on record, even according to the assessee, is some entries in the accounts to the effect that certain amount is due from M/s. Sulekha Clay Mines towards the expenses incurred by the assessee in respect of the use of excavator. The counsel submitted that the entries in the record which is mentioned by the assessing authority would clearly show that the expenses were incurred by the assessee itself and that'as per the understanding between the parties, only a percentage of the expenses incurred by the assessee has to be reimbursed by the customer. In short, the submission of the counsel is that during the relevant period, the effective control of the excavator was always with the assessee. The counsel in support of the aforesaid contentions had relied on the decisions of this Court in Deputy Commissioner of Sales Tax (Law) v. S.Bahulayan, (1992) 1 KTR 137, and in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Bobby Rubber Industries (1998) 108 STC 410. The counsel has also relied on the decision of the Supreme Court in 20th Century Finance Corporation Ltd. v. State of Maharashtra, (2000) 119 STC 182 and the decision in State of Andhra Pradesh v. Rashtriya Ispat Nigam Ltd., (2002) 126 STC 114.

5. The learned Government Pleader appearing for the respondent on the other hand submitted that in the instant case, there is clear finding