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254 Goods & Services Tax Cases - Reports [Vol. 1 FACTS The assessee was a trading company and through an agreement with Indian Oil Corporation, it agreed to provide transport facility to the oil company. The Assessing Officer was of the view that the assessee had earned money by carrying on the business with oil company and levied tax. On appeal, the first appellate authority deleted such addition. On further appeal, the Tribunal dismissed the appeal observing that as per the contract, it was for the oil company to use or not to use the tankers and the assessee was having no control over the movement of the tankers. On revision : HELD The Tribunal had followed the decision of the jurisdictional High Court in Indian Oil Corpn. v. Commissioner, Trade Tax where it was observed that there was no ‘sale’ of tankers by the assessee to the oil company. So, no tax was to be levied. Thus, the impugned order of the Tribunal was to be sustained. [Para 3] CASE REFERRED TO Commissioner, Trade Tax v. Sharma Tourist Transport [2005] 42 STR 927 (All.) (para 3). Sanjay Sarin for the Revisionist. ORDER 1. All the revisions have been filed by the department under section 11 of the U.P. Trade Tax Act, 1948 against the consolidated judgment and order dated 19-6-2006 passed by the Trade Tax Tribunal, Lucknow for the assessment years mentioned above. 2. I have heard Shri Sanjay Sarin, learned counsel for the department. None appeared for the assessee. 3. The brief facts of the case are that the assessee has entered into an agreement with Indian Oil Corporation for transportation of the goods/ products manufactured by the Indian Oil Corporation. The assessee has provided the tankers for this purpose. The Assessing Officer opined that the assessee had earned money by carrying on business with the Indian Oil Corporation by giving the rights to use its tankers to the Indian Oil Corporation for transportation of its products, so the money earned by the tankers is leviable. The Assessing Officer has levied the tax by the assessment order. Being aggrieved, the assessee has filed appeals before the First Appellate Authority who has deleted the addition. Not being satisfied the department has filed appeal before the Tribunal who has dismissed the appeal filed by the department by observing that as per the contract, it is for the Indian Oil Corporation to use or not to use the tankers. The assessee has no control over the movement of the tankers. In the case of Indian Oil Corpn. v. Commissioner, Trade Tax, it was observed that this GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 130 A B C D E F G
2010] G.D. Pharma v. Commissioner, Trade Tax (All.) 255 A B C D E F G is not the property of the Indian Oil Corporation. The jurisdictional High Court in the case of Commissioner, Trade Tax v. Sharma Tourist Transport [2005] 42 STR 927 (All.) has observed that the transfer of the right of the property is not the transfer of the property. The Tribunal finally in its order observed that there was no transfer or sale of the tankers to the Indian Oil Corporation. The assessee was having a right to change its driver at any time. 4. By considering the totality of the facts and circumstances of the case, I find no reason to interfere with the order of the Tribunal who has followed the decision of jurisdictional High Court where it was observed that there was no ‘sale’ of tankers by the assessee to the oil company. So no tax is leviable. When it is so, the impugned order of the Tribunal is hereby sustained along with the reasons mentioned therein. 5. In the result, all the revisions filed by the department are dismissed. [2010] 1 GST 255 (ALL.) HIGH COURT OF ALLAHABAD G.D. Pharma v. Commissioner, Trade Tax, U.P.* DR. SATISH CHANDRA, J. TRADE TAX REVISION NO. 108 OF 2002 OCTOBER 9, 2009 SALE - Assessee-agency wanted to terminate agency and, hence, returned old goods to principal-medicine manufacturer - Manufacturer received old stock of medicines which might have expired by time of return - Whether return of old goods, unfit for sale, to principal by agent cannot be considered as sale and, hence, tax could not be levied on same - Held, yes [Section 2(h), read with section 3 of the U.P. Trade Tax Act, 1948] FACTS The assessee-revisionist with a view to give <strong>up</strong> the agency of the principalmedicine manufacturer, returned the old goods to the manufacturer *In favour of assessee. ■■ GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 131
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