Commissioner of Trade Tax Vs. D.R. Zindal and Sons - Court Judgment

Excerpt:
- indian penal code, 1860 [c.a. no. 45/1860]. section 302; [m.c. jain, r.c. deepak & k.k. misra, jj] murder plea as to accused being minor school register and transfer certificate not proved before court according to law held, it has to be ignored and question of age is to be determined on other evidence and circumstances surfacing on record. age determined on the basis of x-ray plates and report prepared by c.m.o., is the correct age of accused. accused was declared to be child on the date of commission of offence of murder. however, considering fact that now accused was around 41 years, he cannot be sent to approved school. accused was directed to pay fine of rs.25,000/- under section 302 i.p.c., amount of fine was directed to be paid as compensation to wife of deceased. mohammad - it has also been observed that under the agreement in case of failure of power, chilling would be carried on by ice.rajes kumar, j.1. 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 september 26, 2000 for the assessment year 1995-96.2. on the basis of information received that the dealer/opposite party had received a sum of rs. 9,86,018.71 from dugdh utpadan sahkari sangh limited, bulandshahar, a proceeding under section 21 of the act was initiated. it has been alleged by the assessing authority that the dealer had provided chilling plant to dugdh utpadan sahkari sangh limited, bulandshahar for chilling of milk and water at a particular temperature. therefore, the receipt was liable to tax under section 3f of the act for transfer of right to use the goods. claim of the dealer was that under the contract, the dealer was to supply the milk and water at a specified temperature and the chilling plant was never transferred to dugdh utpadan sahkari sangh limited, bulandshahar and has always remained in its possession. it was also submitted that the payment was made at rs. 2.75 per kg. for the aforesaid job. the assessing authority had not accepted the plea of the dealer on the ground that the payment of electric charges was made by dugdh utpadan sahkari sangh limited, bulandshahar and the dealer was not able to tell how many persons were employed for operation. plea of the dealer was accepted by the first appellate authority which has been confirmed by the tribunal.3. heard the learned standing counsel.4. i have perused the order of the tribunal and the authorities below.5. both the appellate authorities have recorded the categorical finding of fact that under the agreement, the dealer had provided milk and water at a specified temperature and chilling plant as such, was not transferred for the use. necessary expenses were also borne by the dealer. it has also been observed that under the agreement in case of failure of power, chilling would be carried on by ice. this shows that the chilling plant as such, was not transferred for use and the agreement was to provide milk and water at a specified temperature.6. in the case of bharat sanchar nigam ltd. v. union of india reported in : [2006]282itr273(sc) , the apex court held that the delivery of the possession of the goods at some stage is necessary for transfer of right to use the goods. in the absence of delivery of possession of chilling plant to dugdh utpadan sahkari sangh limited, bulandshahar for use, the case did not fall under the transfer of right to use the goods.7. on the facts and circumstances of the case, both the appellate authorities nave rightly held so. the revision is devoid of any merit and is liable to be dismissed.8. in the result, revision fails and is, accordingly, dismissed.