IMPORTANT POINT
The court established that a transaction must involve effective control for it to be classified as a transfer of right to use goods, impacting tax liability.

JUDGMENT :

Ritu Bahri, C.J.

All the three revisions have been filed by the revisionist for three separate years, i.e. 2007-08, 2008-09 and 2009-10.

2. The revisionist has come-up in revisions against the common order dated 13.09.2012 passed by the learned Commercial Tax Tribunal and the orders dated 6th December, 2010 passed by the Assistant Commissioner, Commercial Tax, Dehradun.

3. The revisionist is the registered owner of a bus having Registration No. UA-7Q-1941. On 10.01.2007, the revisionist entered into an agreement with the Uttarakhand Transport Corporation, by which the revisionist agreed to provide her bus on certain terms and conditions. Copy of the Agreement is filed as Annexure-1 to the revision. The respondentDepartment collected information regarding the payments made to the persons, who had provided their buses to the Uttarakhand Transport Corporation. On the basis of the information received from the said Corporation, a show-cause notice was issued to the revisionist by the Assistant Commissioner, Commercial Tax, Dehradun treating the transaction to be a deemed sale covered by “transfer of right to use”. The revisionist gave her reply, however, the Assistant Commissioner, Commercial Tax, Dehradun passed the Assessment Orders dated 6th December, 2010. As per the terms of the Agreement (Annexure No.1), the payment received by the revisionist for giving her buses for hiring was treated to be a deemed sale and was covered by transfer of right of use and tax was imposed.

4. On Appeals, the Joint Commissioner (Appeal-II), Commercial Tax, Dehradun, vide common order dated 27th August, 2011, allowed the Appeals.

5. Against the common order dated 27th August, 2011 (Annexure-3 to the revision), the Revenue preferred Second Appeal Nos. 186, 185 and 187 of 2011 (Annexure No. 4 to the revision), which were allowed by the Commercial Tax Tribunal, Dehradun by order dated 13.09.2012 (Annexure No. 5 to the revision) and the assessment orders passed by the Assistant Commissioner, Commercial Tax, Dehradun were upheld.

6. In the present revisions, the revisionist has raised the following questions of law:-

A. Whether on the facts and circumstances of the case, the learned Commercial Tax Tribunal was justified in treating the transaction in question to be a deemed sale as transfer of right to use within the provisions of Section 2(40) of the Uttarakhand Value Added Tax Act, 2005?

B. Whether the learned Commercial Tax Tribunal was justified in upholding the assessment made by the Assistant Commissioner, Commercial Tax, when the First Appellate Court had not decided the appeal on merits?

C. Whether the learned Commercial Tax Tribunal was justified in holding that the deduction on account of salary of driver, cleaner and cost of diesel and lubricants is not deductible from the gross amount received from the Uttarakhand Transport Corporation?”

7. As per the order of the Commercial Tax Tribunal (Annexure No. 5 to the revision), a report dated 29.07.2010 was sent to the Assessing Authority by the Deputy Commissioner (S.I.B.), Commercial Tax, Dehradun with regard to the details of the payments made to private owner of buses, which were engaged to carry the passengers on contract basis. The following details were given by the Deputy General Manager (Operation) Uttarakhand Transport Corporation, Dehradun provided the following details to the Deputy Commissioner (S.I.B.), Commercial Tax, Dehradun regarding the respondent / assesse:-

8. On the basis of the above information, a show cause notice was given to the revisionist that as per the provi