B.N. Mahapatra, J.
1. This Sales Tax Revision petition has been admitted on the following questions of law:
(i) Whether in the facts & circumstances of the case the Learned Sales Tax Tribunal is justified in holding that there was no transfer of right to use of the dredgers within the meaning of Section 2(g)(iv) of the Orissa Sales Tax Act, 1947?
(ii) Whether in the facts & circumstances of the case the Learned Sales Tax Tribunal was justified in deciding the Second Appeals on merit without remitting back the matter to the Sales Tax Officer for adjudication?
2. Bereft of unnecessary details, the facts & circumstances giving rise to this case are that the Opposite Party-M/s Dredging Corporation of India Ltd., Paradeep, Jagatsinghpur (hereinafter called 'the Corporation') is a Government of India Undertaking. During the relevant time, it had its branch office & business at Paradeep Port in Jagatsinghpur district. It is a registered dealer under the Orissa Sales Tax Act, 1947 (hereinafter called 'the OST Act') bearing Registration No. CUII-J- 872. The Opposite Party-Corporation engaged its dredgers for dredging the floor of Paradeep Port under the Paradeep Port Trust (herein after called 'PPT'). During the year 190-91,1991-92 & 1992-93, the Opposite Party- Corporation flied its return disclosing turnover of sale of empty tins, burnt oil, tender paper, etc. without including the amount received towards hire charges of dredgers to PPT. The assessing officer on consideration of certain clauses of the agreement entered into between the Opposite Party-Corporation & the PPT came to a finding that the Corporation had transferred the right to use the dredgers belonging to them to the PPT against the agreed payment. He, therefore, did not accept the return flied by the Corporation & levied tax on consideration money I hire charges received by the Corporation from PPT freating the same as sale within the extended definition of 'sale' under Section 2 (g)(iv) of the OST Act. The assessment orders were challenged in the first appeal. In first appeal, the assessment orders were confirmed & the appeal stood dismissed.
Being aggrieved, the Corporation flied second appeals before the Learned Orissa Sales Tax Tribunal, Cuttack (hereinafter called 'the Tribunal'). The Full Bench of the Learned Tribunal vide its Order Dated 18.03.2002 passed in S.A. No. 1352-1353 of 1993-94, S.A. No. 3557 of 1993-94 & S.A. No. 2293/1996-97 allowed the appeals filed by the Corporation. Hence, the State has preferred this revision petition.
3. Mr. R.P. Kar, Learned Counsel for the Revenue, submits that the departmental authorities have rightly held that there was transfer of right to use the dredgers to the PPT by the Corporation. It is argued that a daily charge was fixed because of the transfer of right to use the dredgers on daily basis. Had it been not so, a lump sum would have been fixed for the work to be done. A charge has also been fixed for the time when the dredgers remained idle without work, which shows that it is not for the work but for the dredgers such a charge was fixed. It was further argued that dredgers were under the control of PPT as they were moving away from the place of work & remained idle on the direction of the PPT. According to the agreement, the Corporation was not permitted to take away the dredgers without permission of the PPT & without substituting them for the work, which shows that the dredgers were in possession & under the control of the PPT &, therefore, the Corporation is liable to pay sales tax on hire charges received from the PPT. In support of his contention, Mr. Kar relied upon the decision-of this Court in Krushna Chandra Behera and Anr. v. State of Orissa and Ors. (1991) 83 STC 325.
It is also argued that the Learned Tribunal should have remitted the matter back to the Assessing Officer for fresh adjudication as had been done by the Learned Tribunal for the previous years.
4. Mr. S.Ray, Learned Counsel appearing for the Opposite Party-Corporation submitted that dredgers were engaged by the Opposite Party along with its men as a unit to dredge soil under seawater against consideration.The right of possession & effective control of the dredgers in course of dredging remained with the Opposite Party & therefore there was no transfer of right in favour of the PPT for use of the dredgers. Mr. Ray further submitted that had it been a case of transfer of right to use the dredgers there would have been no deployment of the dredgers & no work would have been assigned to the Corporation & no rate would have been prescribed per unit of work. Since it was not a case of transfer of right to use the dredgers, the PPT deployed its Licensing Officer on board to read & record the units of work done by the Corporation. It was contented that pursuant to earlier direction of this Hon'ble Court, statements of the Officer in-charge of Administration of PPT were taken by the officers of the Revenue Department; wherein they have stated that the PPT had no possession or control over the dredgers during the period of dredging & labour & technical know-how were supplied by the Corporation during the relevant period. It was further contended that the payment received by the Opposite Party towards mobilization charge, demobilization, idle time charge, dredging charge were only received against the service & not the hire charge for transfer of right to use the dredgers to be taxed under the OST Act treating it to be a sale according to the definition of sale as provided under Section 2(g) (iv) of the OST Act.
Mr. Ray relied on Judgments of the Hon'ble Supreme Court in State of Andhra Pradesh and Anr. v. Rashtriya Ispat Nigam Ltd., (2002) 126 STC 114, Bharat Sanchar Nigam Ltd. and Anr. v. Union of India and Ors. (2006) 145 STC 91, Aggarwal Brothers v. State of Haryana and Anr. (1999) 113 STC 317 & this Court in Krushna Chandra Behera and Anr. v. State of Orissa and Ors. (1991) 83 STC 325 & Kandoi Transport and Ors. v. Sales Tax Officer, Assessment Unit, Barbil and Ors. (OJC Nos. 576, 577 & 578 of 1988 disposed of on 4th December 1991).
5. Since both the questions involved in this petition are linked with each other instead of dealing with them independently it would be appropriate to deal with them combinely
6. At this stage, it is necessary to examine the provisions of Section 2(g) (iv) & Section 2(h) of the OST Act which define the term 'sale' & the phrase 'sale price' respectively. Relevant portion of these two Sections are given below-
2(g) 'Sale' means with all its grammatical variations & cognate expression, any transfer of property in goods for cash or deferred payment or other valuable consideration & includes,-
xx xx xx(iv) transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration;
xx xx xx(h) 'Sale Price' means the amount payable to a dealer as (consideration) for the sale or supply of any goods, less any sum allowed as cash discount according to ordinary trade practice, but including any sum charged for anything done by the dealer in respect of the goods at the time of, or before, delivery thereof.
A plain reading of the above provisions, make it amply clear that transfer of right to use any goods for any purpose (whether for any specific period) for cash, deferred payment or other valuable consideration comes within the purview of 'sale' & 'sale price' means the amount payable to a dealer as consideration for sale or supply of any goods. Transfer means passage of a right from one person to another. Transfer includes every transaction whereby a party divests himself of his interest, which subsequently vests in another party.
Right is a claim to a thing. It is the liberty of doing or possessing something consistently with law. In absence of satisfying the essential requirements of Section 2 (g)(iv) of the OST Act, no tax can be leviable on amount received by a transferor from transferee on transaction of transfer of right to use the goods.
7. The Hon'ble Apex Court in Aggarwal Brothers v. State of Haryana and Anr. (1999) 113 STC 317 held that the definition of 'sale' in Section 2(1) of the Haryana General Sales Tax Act, 1973 includes the 'transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration'. Such transfer of the right to use goods for consideration is 'deemed' to be a sale. The provision expressly speaks of 'transfer of the right to use goods' & not of transfer of goods. It is, therefore, not correct to say that to be a deemed sale within the meaning of the provision of the Act there must be a legal transfer of goods or that the transaction must be like a lease.
In that case, the Appellants owned shuttering which they transferred for consideration to builders & building contractors for use in the construction of building. Accordingly, the Hon'ble Apex Court held that requirements of deemed sale within the meaning of Section 2(1) of the Haryana General Sales Tax Act, 1973 were satisfied & the hire charges were taxable under the Act.
In State of Andhra Pradesh and Anr. v. Rashtriya Ispat Nigam Ltd., (2002) 126 STC 114; the Respondent, which owned the Visakhapatnam Steel Project, allotted different works to contractors. It supplied sophisticated machinery to the contractors for being used in the execution of the contracted works & received charges for the same. When the sales tax authorities made a provisional assessment on the Respondent of sales tax under Section 5- E of the Andhra Pradesh General Sales Tax Act, 1957, on the hire charges, the Respondent filed a Writ Petition in the High Court challenging the levy of sales tax. The High Court on a consideration of the agreement of the Respondent with the contractors, found that the effective control of the machinery, even while the machinery was in use, was with the Respondent: the contractors were not free to make use of the machinery for other works or move the machinery out during the period the machinery was in use; & held that the transactions between the Respondent & the contractors did not involve the transfer of right to use the machinery in favour of the contractors & the hire charges could not be brought to tax under Section 5-E. On appeal, the Hon'ble Apex Court held that the transaction did not involve the transfer of the right to use the machinery in favour of the contractors, &, in the absence of satisfying that essential requirement of Section 5-E, the hire charges collected by the Respondent from the contractors were not exigible to sales tax.
The Hon'ble Apex Court in Bharat Sanchar Nigam Ltd. and Anr. v. Union of India and Ors. (2006) 145 STC 91 held that 'Goods' do not include electromagnetic waves or radio frequencies for the purpose of article 366(29A)(d) of the Constitution of India.The goods In telecommunication are limited to the handsets supplied by the service provider. There are two reasons: (i) Electromagnetic waves are neither abstracted nor consumed in the sense that they are not extinguished by their user.They are not delivered, stored or possessed. Nor are they marketable. They are the medium of communication. What is transmitted is not an electromagnetic wave but the signal through such means. The signals are generated by the subscribers themselves. In telecommunication what is transmitted is the message itself by means of the telegraph. No part of the telegraph itself is transferable or deliverable to the subscriber, (ii) The second reason is more basic: a subscriber to a telephone service cannot reasonably be taken to have intended to purchase or obtain any right to use electromagnetic waves or radio frequencies when a telephone connection is given. Nor does the subscriber intend to use any portion of the wiring, the cable, the satellite, the telephone exchange, etc. At the most the concept of sale in the subscriber's mind would be limited to the handset that may be purchased. As far as the subscriber is concerned, no right to the use of any other goods, incorporeal or corporeal, is given to him or her with the telephone connection. Electromagnetic wave (or radio frequencies) do not fulfill the parameters applied for determining whether they are goods, the right to use of which would be sale for the purposes of Article 366(29A)(d). The essence of the right under Article 366(29A)(d) is that it relates to the user of goods. It may be that the actual delivery of the goods is not necessary for effecting the transfer of the right to use the goods but the goods must be available at the time of transfer, must be deliverable & delivered at some stage. If the goods or what are claimed to be goods are not deliverable at all by the service providers to the subscribers, the question of the right to use those goods would not arise.
In Krushna Chandra Behera and Anr. v. State of Orissa and Ors. (1991) 83 STC 325; the Petitioners hired out a bus belonging to them to the Orissa State Road Transport Corporation, under a contract under which the owner had to abide by all orders & directions of the General Manager of the Corporation or any officer authorized by him in this behalf in regard to the starting station of the journey, operation, haltage, destination, timing & routes, issued from time to time. The owner could not use the vehicle covered by the agreement in any route except in accordance with the orders & directions issued by the Corporation under the agreement. Though the driver was provided by the owner he was answ'erable to the Corporation. The question before the Court was whether the agreement represented a transfer of the right to use goods within the extended definition of 'sale' in Section 2(g) of the Orissa Sales Tax Act, 1947.
This Court held that for all practical purposes the effective control or general control of the vehicle under the agreement rested with the Corporation. There was possession of the bus by the Corporation & loss of possession by the owner. Consequently, there was transfer of the right to use the bus, & it was a case of sale within the extended meaning of the term in Section 2(g) of the Orissa Sales Tax Act, 1947.
In 20th Century Finance Corporation Ltd. and Anr. v. Sate of Maharashtra, (2000) 119 S.T.C. 182, it has been held that the delivery of goods may be one of the elements of transfer of right to use, but the same would not be condition precedent for a contract of transfer of right to use goods. It is explicit that the transfer of right to use any goods involves both passing of right in as well as domain of the goods in which right to use the goods is transferred.
8. Transfer' is one of the widest terms that can be used (per James L.J. In Gathercole Vrs. Smith: 17 Ch.D.1). Transfer includes every transaction whereby a party divests himself or is divested of a portion of his interest, that portion subsequently vesting or being vested in another party. Transfer means passage of a right from one person to another. According to Murray's Oxford Dictionary, Volume II, page 257, it means 'to conveyor make over title, right or process by deed or legal process.' The first meaning assigned to 'use' is to employ to any purpose. (See Johnson's Dictionary). A mere contract of hiring, without more, is a species of the contract of bailment. In Commissioner of Income-tax, Bombay City v. National Storage Pvt. Ltd. : (1967) 66 ITR 596 (SC), the observations of Viscount Finlay in Governors of the Rotunda Hospital, Dublin v. Coman (1921) AC 1 (HL) that 'the subject which is hired out is a complex one' were applied. 'Right' is a claim to a thing. It is the liberty of doing or possessing something consistently with law. A right is interest recognized & protected by law. Transfer of right implies that full liberty is vested on the transferee to have the right to use the goods at the exclusion of all others including the owner of the goods.' [See Kandoi Transport (supra)]
9. Various clauses of the agreement entered into between the Corporation & the PPT were brought to the notice of the Tribunal & after taking into consideration the provisions of the agreement & various case laws, the Learned Tribunal, which is the final fact finding authority, came to the following conclusion:
11. Now, with this back-ground position of law relating to transfer of right to use'any goods as a sale within the meaning of provisions Under Section 2(g)(iv) of the O.S.T. Act, possession & effective control of the goods is not determinative of whether or not a sale took place by way of transfer of right of its use, as the Hon'ble Supreme Court stated in unambiguous terms that the sale by way of transfer of right to use any goods is not a bailment as supposed to be in case of Krushna Chandra Behera Vrs. State of Orissa (83-STC-325) or in case of 20th Century Finance Corporation Ltd. Vrs. State of Maharastra (75-STC-217). So the contention taken by the State that since the dredger was in possession & under control of the Board, it proves that there was a transfer of right to use of the dredger, is not sustainable. The other contention taken by the State that since a daily charge is fixed, & also an idle charge is fixed in this case, it proves that there was a transfer of right to use the dredger, is also not sustainable. All this makes a confusion as one starts thinking on the case with a preconceived notion of bailment of a chattel. Transfer of right to use any goods is not a bailment, for had it been a bailment, the State would have no power to tax it. It is a sale by a fiction of law encrafted in Article 366(29-A)(d) of the Constitution, & resultantly in Section 2(g)(iv) of the O.S.T. Act. So what is determinative as to whether or not there was a transfer of right to use the chattel (the dredger) is the stipulation in the Agreement made between the Board & the Appellant. Nothing is to be inferred, for such inference will be made, taking it as, or with a pre-conceived notion of, a bailment. In a bailment, possession of & control over, the goods by transferee is a necessary condition but in a sale Under Section 2(g)(iv) of the O.S.T. Act, a transaction of transfer of right to use any goods alone is the necessary condition. The agreement provides as follows:.the Corporation here by agrees to deploy its cutter Auction Dredger MOT Dredge-II in the dredging work....There are stipulation to do a work to dredge the sea-bed, with men & machine deployed for the purpose, against a valuable consideration. So we find it a works-contract, without transfer of property in goods in execution of such a contract. There is nothing in the agreement to prove that there was a transfer of right to use the dredger. The clauses in the Agreement brought to our notice by Mr. Ray amply prove that there was no transfer of right to use the dredger in this case.
12. Mr. S.K. Paul, the Learned State Representative, disputes the Agreement, stating that this Agreement was not made for the purpose of work/sale which is currently in dispute. Even if this contention is accepted, things will not take a different shape.The Learned S.T.O. had taxed the Appeliant on mobilization charge, & demobilization charge. There was such charges, even if it is held that the Agreement was on oral one. This proves that the dredger moved from non-Orissa State to Paradeep on the basis of or as a direct result of the oral agreement, & even if it is held (erroneously, of course) that it is the transfer of possession of goods that make it a sale within the meaning of the provisions of Section 2 (g)(iv) of the O.S.T. Act, the State Act can not tax it, as it would be a sale in course of inter-State trade or commerce, Unfer Section 3(a) of the C.S.T. Act. The decision of the Hon'ble Supreme Court at para 35(c) of the Judgment, on which Mr.Paul relies is effective only on a pre-finding of the fact of transfer of right to use any goods, Para 35(c) is determinative of citus of sale & not the sale, Under Section 2(g)(iv) of the O.S.T. Act, & our primary object in this case is to find out whether there was such a sale.
13. Mr. Paul infers it to be a case of transfer of right to use th9 dredger from the fact of a charge for the idle time. Although no such inference is permissible in a sale on transaction of transfer of right to use any goods, as we have stated at para-ll of this order, for reasons stated there, it will not make things different, even if such an inference is accepted. The idle time charge is found to have been made in this case when the dredger & man remain idle on the administrative instructions of the Port Trust, & not when they remain so for other reasons.
14. But such directions also do not prove that the Port Trust had the effective control over the unit of dredger & man taken together, for this is an administrative direction of the Port Authority given at times for safe passage of other ships in the Port, which is also obeyed by ships coming from other countries.
15. All this needs an illustration to make things clear. Suppose, a labourer agrees to plough the soil in whole of an agricultural field with his plough & bullock over a period of time, & demands a daily wages for his work, & also refrains at times from work at the direction of the land-lord for passage of other ploughs & bullocks of other cultivators through the field. Then is it correct for some one to infer that because the labourer takes a daily wage, & refrains from work at times at the direction of land-lord, takes certain charges to bring home the bullock & the plough situated at a distance of, say, 10 K.Ms., the right to use the bullock & plough has been transferred to the landlord, even without such, an understanding between them even if one thinks it in the lines of a bailment? The answer is always in the negative.
So we find that the Learned ACST is not justified in confirming imposition of tax on the Appellant in this case. His order, therefore, fails.
16. In the result, appeals filed by the dealer-assessee are allowed in full. Tax paid, if any, qualifies for refund in accordance with law.
10. Moreover, it was brought to our notice that the assessments for the years under consideration have been made on the same ground the assessments for previous years, i.e, 1984-85 to 1989-90 were' made. The matter relating to previous years was carried to this Court & this Court remanded the matter to the Tribunal & the Learned Tribunal thereafter remitted the matter back to the Sales Tax Officer for fresh assessment with certain directions. Finally, the stand of the Opposite Party that there was no transfer of right to use the dredgers by them to the PPT had been accepted by the first Appellate authority. Against this, State preferred second appeal before the Sales Tax Tribunal & the same has been dismissed on 25.04.2008. Mr. Ray, Learned Counsel for the Opposite Party submitted that no tax revision has been filed by the State before this Court against the order of the Learned Tribunal.
11. In that view of the matter, we do not find any infirmity in the order of the Learned Tribunal holding that there is no transfer of right to use of the dredgers by the Corporation to the PPT in terms of the provisions of Section 2 (g)(iv) of the OST Act & the consideration money received by the Corporation is not exigible to sales tax warranting interference by this Court.
12. In the result, we answer both the questions in affirmative, i.e., in favour of the Dealer & against the Department.
The Sales Tax Revision is disposed of accordingly.
No costs.
B.S. Chauhan, C.J.
I agree.