RAJES KUMAR, J. - Present revision under section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act") is directed against the order of the Tribunal dated May 30, 1996 relating to the assessment year 1987-88.

On the basis of the information that the assessee - opposite party (hereinafter referred to as "the assessee") has received certain amounts from M/s. IFFCO, Phulpur, Allahabad and M/s. BPCL, Naini, Allahabad towards hire charges, assessment proceedings have been initiated. During the course of the assessment proceeding, the assessee filed the copies of the agreement and explained that in pursuance of the agreement only buses were provided to M/s. IFFCO, Phulpur, Allahabad and M/s. BPCL, Naini, Allahabad for the transportation of their employees from their residence to the factory and from factory to the residence and for which charges were stipulated. It was submitted that the possession of the vehicle was always with him and the entire expenses, namely, diesel charges, salary of driver/conductor, road tax, passenger tax, etc., have been borne by him and at no stage the right has been transferred to the aforesaid two companies to use the buses and thus, the assessee was not liable to tax under section 3F of the Act. The assessing authority has not accepted the plea of the assessee and levied the tax on the amount received from the aforesaid two companies under section 3F of the Act. Aggrieved by the assessment order, the assessee filed appeal before the Assistant Commissioner (Judicial), Trade Tax which was dismissed. The assessee filed appeal before the Tribunal that has been allowed by the impugned order.

Heard learned Standing Counsel and Sri Kunwar Saksena, learned counsel appearing on behalf of the assessee.

Learned Standing Counsel submitted that the order of the Tribunal is erroneous. He submitted that as per the agreement, the assessee had to provide the vehicles to the aforesaid two companies and whatever charges have been received were the hiring charges liable to tax under section 3F of the Act. He submitted that since under the agreement, the assessee had to transport the employees of the companies at the material time, the said vehicles were for the use of the companies only and, therefore, the provisions of section 3F of the Act are applicable.

Learned counsel for the assessee filed copies of the agreement with the aforesaid two companies that are on record. He submitted that as per the agreement, the assessee has only provided the vehicles to the aforesaid two companies for transportation of their employees from their residence to the factory and from factory to their residence at a stipulated amount. He submitted that at no stage, there was transfer of right to use the buses to the aforesaid two companies. He submitted that the entire expenses relating to the running of the buses, namely, diesel charges, salary of driver/conductors, road tax, passenger tax, etc., have been borne by the assessee and the possession and control of the buses were always with the assessee. He submitted that the entire transit risk was of the assessee and not of the companies. On these facts, he submitted that the effective control of the vehicle has never been with the aforesaid two companies and, therefore, the provisions of section 3F of the Act do not apply. Section 3F of the Act reads as follows :

"Section 3F. Rate of tax on the right to use any goods or goods involved in the execution of a works contract. - Notwithstanding anything contained in section 3A, or section 3-AAA or section 3-D, the turnover relating to the business of transfer of the right to use any goods for any purpose or of transfer of the property in the goods involved in the execution of a works contract shall be determined in the manner prescribed and shall be liable to tax at such rate, not exceeding fifteen per cent, as the State Government may, by notification, declare, and different rates may be declared for different good