New Central Group Engineering (P) Vs. A.C.C.T. and ors. - Court Judgment

Excerpt:
1. in this application under section 8 of the west bengal taxation tribunal act, 1987, new central group engineering pvt. ltd., and its managing director have challenged the assessment order under section 11(1) of the bengal finance (sales tax) act, 1941 (hereinafter referred to as "the 1941 act") made for the period of four quarters ending september 30, 1987 as well as the appellate and revisional orders passed in that connection.2. the applicant-company is a registered dealer under the 1941 act and carries on business as construction contractor. during the period under assessment the company concentrated on executing job work, assigned to it by another contractor, with the help of earth moving and other machineries that the company has. most of this work was given to the company in the relevant period by one central concrete and allied products limited which, according to the applicant, is a sister concern. when the commercial tax officer, park street charge, respondent no. 2 was making assessment of tax payable by the company for the four quarters ending september 30, 1987 (hereinafter referred to as "the relevant period") "in course of examining the books of accounts" he detected that the dealer had received hire charge of rs. 3,90,000 (dumper hire charge of rs. 60,000 + loader hire charge of rs. 90,000 + crane hire charge of rs. 2,40,000). respondent no. 2 considered this hire charge as proceeds of transactions which amounted to sale in terms of section 2(g)(ii) of the 1941 act, though he did not say in his order of assessment why he considered them so and what were the documents that led him to his conclusion. he then mentioned in the assessment order that the dealer's representative submitted on the first date of hearing that the transaction did not amount to sale, that he was given sufficient opportunity to prove his contention, but on two consequent dates of hearing, the representative failed to justify his stand by producing tenable documentary evidence.3. he did not say in his order what was the reason behind the dealer's contention, nor did he say what documents the dealer's representative had produced or had failed to produce. however, since he came to the conclusion that the dealer had failed to prove that the transaction did not amount to sale, he subjected the total receipt of rs. 3,90,000 to sales tax at the rate of 4 per cent under section 5(1)(ccc) of the 1941 act.4. against the order of assessment the applicant went in appeal to respondent no. 1. the grounds of appeal have been enclosed with the present petition. the main ground mentioned was that the plant and machinery which were given on hire belong to the asses see and without an expert operator the said machines could not be used by anybody else.thus the ownership and control of operation of the said machine were exclusively with the applicant, and the amount received were charges for rendering service. this ground does not seem intelligible by itself, but reading it along with the present petition, it appears that the dealer wanted to submit that he gave not only the machines but also skilled drivers to operate them, and hence he was not giving the machines on hire, but he was providing service which only skilled drivers could provide with those machines. on this basis his contention is that the definition of sale as given in section 2(g)(ii) is not attracted. in the appellate order dated april 28, 1994 respondent no. 1 did not at all refer to this submission on point of fact, starting in the order only that "the learned advocate argued that the dealer is not liable to pay tax on hiring charges of plant and machinery". he did not agree with the submission, and rejected the appeal. the applicant preferred a revision before the west bengal commercial taxes appellate and revisional board (in short the "board"). in the grounds of revision submitted before the board the applicant submitted that the company had rendered service with their men and machinery and thereby received consideration money for rendering service. no parts of materials were transferred and/or given in use to the transferee, and as such section 2(g)(ii) cannot be applicable to it. there is nothing in the order of the board to suggest that the board had tried to decide on the factual question whether the drivers were actually sent with machines, and what were the instructions given to them. rather, it decided that "it is not at all a matter of consequence whether the drivers were supplied along with the instruments or not". the board noticed, "there is nothing to show that the dealer imposed any restriction at the time when those instruments were actually used by the beneficiary". it also noticed that in the profit and loss account of the company, the amount of rs. 3,90,000 had been shown as hire charges. on the basis of these, the board in deciding the revision petition concluded that the decisions of the calcutta high court in the case of the bank of india [1987] 67 stc 199, and of the west bengal taxation tribunal in the case of the modern decorators [1990] 77 stc 470, have no applicability. revision petition was therefore rejected.5. mr. p.g. goswami, learned advocate appearing for the applicants, submitted that the applicant never gave on hire to anybody the dumper, the loader, or the cranes, but had actually used those machineries, with the help of driver operators, to do job work, i.e., to execute definite pieces of work entrusted to the applicant by its sister concern central concrete and allied products limited. the entry in the profit and loss account describing the receipts as hire charge is simply the result of a clerical mistake in the nomenclature of an item in accounts, and such mistake is unable to alter the real nature of the transaction, he maintained. the applicant has stated, in para 6 of the application, that all the documentary evidence (in support of the claim that the petitioner did some work requiring expert application of the machinery, on labour and service basis, and received the amount of rs. 3,90,000) were produced before the commercial taxes officer and, therefore it is not true that the petitioners failed to produce documentary evidence in this respect. at the time of making his submission shri p.g. goswami, stated that the applicant's contention regarding receipt of service charges could be proved by entries in the books of accounts of the applicant, and respondent no. 2 had examined the books of accounts at the time of making the assessment. therefore, according to mr. goswami, the decision of respondent no. 2 to treat the amount of rs. 3,90,000 as receipts of sale under section 2(g)(ii) of the 1941 act is arbitrary and illegal. mr. goswami further prays for setting aside the appellate order passed by respondent no. 1, on the ground that the appeal was rejected perfunctorily without considering the grounds of appeal and without going into the facts and circumstances of the case. the board also did not examine the factual question and made a complete misreading of facts when it stated in the order that "in this case the petitioner admittedly gave dumper, loader and cranes and received hire charge for those articles". but this is not true, and the case of the applicant is based on the contention that he did not receive anything for giving anything on hire. mr. goswami, therefore, submits that the impugned revisional order suffers from a failure of the board to adjudicate on the facts and circumstances as well as the nature of transactions in this case, and should, therefore, be set aside.6. mr. d. gangopadhyay, learned, state representative appearing for the respondents, drew attention to the observation of the board in para 9 of its revisional order that there is nothing to show that the dealer imposed any restrictions at the time when these instruments were actually used by the beneficiary to indicate that there was no transfer of right to use, on the other hand, it can be said that those instruments were given to the user with the drivers and the beneficiary determined how to use them and when". this shows, according to mr.gangopadhyay, that the board examined the question whether the applicant was executing job work or not. he adds that no evidence was produced before the board to show that the applicant retained control when the instruments were used by the sister concern. therefore, the board came to the conclusion that those instruments were given to the user with the driver. the board did not avoid its duty, as the last fact finding authority to adjudicate on the points of fact raised before it, and came to the legal conclusion that the transactions concerned amounted to sale under section 2(g)(ii) of 1941 act. the applicant has relied on the decision in the case of bank of india v.commercial tax officer, central section, calcutta reported in [1987] 67 stc 199 (cal) at the time of hearing before the board as well as before us. the board had observed that the ruling was not applicable in this case as it is clearly distinguishable. mr. gangopadhyay, maintained that the situation in the present case was such that the hirer had greater control over the hired item than he can have on his hired bank lockers. the board had observed, simply because the drivers were in employment of the applicant at the relevant points of time, it did not mean that the machineries were not given to the persons, whose work was being done, for their use. similarly, according to mr. gangopadhyay, the ruling of this tribunal in the case of the modern decorators v.commercial tax officer, maniktola charge reported in [1990] 77 stc 470 ; (1990) 23 sta 151, is not applicable to the present case on the grounds explained in the order of the board. in this situation mr.gangopadhyay submitted that there is no reason to interfere with the order passed by the board in revision or with the orders passed by the authorities below the board.7. we have considered the submissions of the both sides. the factual situation is not very clear. it is undisputed that in the four quarters ending september 30, 1987 dumpers, loaders, and cranes belonging to the applicant had been used in work of central concrete and allied products limited. it is also undisputed that the profit and loss account of the applicant-company for the same period show a receipt of rs. 3,90,000 from the abovementioned concern as hire charges for dumper, loader and cranes. on the basis of these two things the assessing authority decided that the transaction in this matter amounted to sale in terms of section 2(g)(ii) of the 1941 act. the applicant disputes this judgment, claiming that if these facts are seen in conjunction with some other facts, the conclusion could be different. unfortunately, the correctness or otherwise of those other facts have not been determined by the fact finding authority, the applicant claims. the first such claimed fact is that the machines, namely, dumper, loader and cranes, were operated by drivers employed by, and in the pay roll of the applicant at the time they were doing the work of central concrete and allied products limited. though this fact has been asserted directly in the present application, such direct assertion was not made either in the grounds of appeal or in the grounds of revision. the reason why this fact was hinted at in a round about manner at that time is not known. it is also not known whether this point was pressed at the hearings before the appellate and revisional authorities. it is also not known whether the appointment letters of these drivers, or the aquittance rolls regarding their payment, were produced before those authorities. the second fact that the applicant mentioned for consideration is that the machineries (with the drivers) were not hired out by the applicant, but were used by the applicant "on the labour and service basis" (para 6 of the petition) keeping the control of said machines completely with the applicant. the correctness or otherwise of this assertion can be most easily checked from by a reference to the agreement in this respect. but the agreement was oral, as the applicant says in the petition. an indication of the terms of the agreement might be found if one examined the bills raised in this respect by the applicant or the receipts given for payments received from central concrete and allied products limited. but we do not find that the applicant invited attention of the appellate and revisional authorities to these or similar other documents, or that those authorities took note of them. instead, we find that the assessing officer, respondent no. 2 noted in his order dated august 31, 1991 that the dealer's representative absolutely failed to justify their contention by way of producing tenable documentary evidence, and that the board limited the discussion of factual issues to just one sentence saying that "petitioner admittedly gave dumper, loader and cranes and received hire charge for those articles". even in the present petition, the petitioner does not say what evidence he produced before those authorities. the only submission made before this tribunal about the supporting evidence in this matter is of mr. p.g. goswami, learned advocate for the applicant, at the time of hearing that this could be proved by entries in the books of accounts and respondent no. 2 had examined them.8. there is no dispute about the fact that the applicant collected rs. 3,90,000 as hire charges. if central concrete and allied products limited, assigned to the applicant any specified job to be accomplished and the applicant executed the job with its own men and machinery, it would definitely be a service contract. even if the types of machineries to be used in the job is specified in such contract the nature of contract will not change, and it would be the applicant's own concern how and when to utilise the machineries with the help of its men to accomplish the job within the time-limit, if any. here the job specification and the time-limit (if any) and the service charges would form the essence of the contract. the necessary document must have specific reference to the job so specified. but if, on the other hand, the applicant lent its men and machineries to the user on hire on the terms that the latter will have the choice as to the manner of utilising the same suiting its (the hirers) job requirement during the period under hire, the contract would come within section 2(g)(ii) of the 1941 act because it would be a case of transfer of the right to the user to use (for the purpose of the job) the goods (namely, dumpers, loaders and cranes). here the machineries, the period of hire and the rate of hiring charges are the essence of the contract.9. in their own document, the applicant has mentioned of collection of hire-charges, without any reference to any job to be accomplished. a mere mention of hire charges without any job specification would lead to an inference that the applicant let the machineries on hire for use of the same by the user in the manner as suits the hirers' job requirement. in such case the accomplishment of the job or otherwise has practically no concern for the applicant whose only concern is the hire and safety of the machineries let for hire. for appropriate handling of such costly machineries the applicant may have to send its own machine-operators (exactly what has happened in the instant case) but the same alone will not mean that the applicant was given contract of accomplishing the job, unless, as already pointed out the applicant has materials to prove that he undertook any job contract and utilised the machineries for the purpose.10. in spite of the fact that central concrete and allied products limited is the applicant's sister concern, no document has come to identify the jobs which the applicant claims to have undertaken to accomplish by using its men and machineries. the decision in the case of bank of india v. commercial tax officer, central section, reported in [1987] 67 stc 199 (cal) has elaborately discussed the nature of control exercised by the bank on the lockers (given to the customer for use against charges) vis-a-vis that exercised by the customer, leave little to question that such hiring does not come within the ambit of section 2(g)(ii). the board in discussing the ratio of the decision in the case of modern decorators v. commercial tax officer, maniktola charge [1990] 77 stc 470 (wbtt) ; (1990) 23 sta 151 (wbtt) has highlighted the distinguishing features. we are also of the opinion that the ratio of these two decisions are not applicable to the applicant's case.11. therefore, the inescapable conclusion is that the applicant transferred the right to use machineries to central concrete and allied products limited which in turn got the machineries utilised according to its own requirement with the help of the operators, and paid hire charges. the transaction comes within the purview of section 2(g)(ii) and is subjected to tax. hence the application is liable to be dismissed.12. in this situation it is not possible for this tribunal to accept that the board committed a mistake when it proceeded on the basis of the undisputed facts, without considering them in conjunction with other facts mentioned by the applicant. we hold that there is no indication anywhere that evidence were ever produced in support of those factual contention. we have therefore, no reason to interfere with the order of the board.13. in the result, the application is dismissed. there will be no order regarding costs.

Judgment:
1. In this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, New Central Group Engineering Pvt. Ltd., and its Managing Director have challenged the assessment order under Section 11(1) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as "the 1941 Act") made for the period of four quarters ending September 30, 1987 as well as the appellate and revisional orders passed in that connection.

2. The applicant-company is a registered dealer under the 1941 Act and carries on business as construction contractor. During the period under assessment the company concentrated on executing job work, assigned to it by another contractor, with the help of earth moving and other machineries that the company has. Most of this work was given to the company in the relevant period by one Central Concrete and Allied Products Limited which, according to the applicant, is a sister concern. When the Commercial Tax Officer, Park Street Charge, respondent No. 2 was making assessment of tax payable by the company for the four quarters ending September 30, 1987 (hereinafter referred to as "the relevant period") "in course of examining the books of accounts" he detected that the dealer had received hire charge of Rs. 3,90,000 (dumper hire charge of Rs. 60,000 + loader hire charge of Rs. 90,000 + crane hire charge of Rs. 2,40,000). Respondent No. 2 considered this hire charge as proceeds of transactions which amounted to sale in terms of Section 2(g)(ii) of the 1941 Act, though he did not say in his order of assessment why he considered them so and what were the documents that led him to his conclusion. He then mentioned in the assessment order that the dealer's representative submitted on the first date of hearing that the transaction did not amount to sale, that he was given sufficient opportunity to prove his contention, but on two consequent dates of hearing, the representative failed to justify his stand by producing tenable documentary evidence.

3. He did not say in his order what was the reason behind the dealer's contention, nor did he say what documents the dealer's representative had produced or had failed to produce. However, since he came to the conclusion that the dealer had failed to prove that the transaction did not amount to sale, he subjected the total receipt of Rs. 3,90,000 to sales tax at the rate of 4 per cent under Section 5(1)(ccc) of the 1941 Act.

4. Against the order of assessment the applicant went in appeal to respondent No. 1. The grounds of appeal have been enclosed with the present petition. The main ground mentioned was that the plant and machinery which were given on hire belong to the asses see and without an expert operator the said machines could not be used by anybody else.

Thus the ownership and control of operation of the said machine were exclusively with the applicant, and the amount received were charges for rendering service. This ground does not seem intelligible by itself, but reading it along with the present petition, it appears that the dealer wanted to submit that he gave not only the machines but also skilled drivers to operate them, and hence he was not giving the machines on hire, but he was providing service which only skilled drivers could provide with those machines. On this basis his contention is that the definition of sale as given in Section 2(g)(ii) is not attracted. In the appellate order dated April 28, 1994 respondent No. 1 did not at all refer to this submission on point of fact, starting in the order only that "the learned Advocate argued that the dealer is not liable to pay tax on hiring charges of plant and machinery". He did not agree with the submission, and rejected the appeal. The applicant preferred a revision before the West Bengal Commercial Taxes Appellate and Revisional Board (in short the "Board"). In the grounds of revision submitted before the Board the applicant submitted that the company had rendered service with their men and machinery and thereby received consideration money for rendering service. No parts of materials were transferred and/or given in use to the transferee, and as such Section 2(g)(ii) cannot be applicable to it. There is nothing in the order of the Board to suggest that the Board had tried to decide on the factual question whether the drivers were actually sent with machines, and what were the instructions given to them. Rather, it decided that "it is not at all a matter of consequence whether the drivers were supplied along with the instruments or not". The Board noticed, "there is nothing to show that the dealer imposed any restriction at the time when those instruments were actually used by the beneficiary". It also noticed that in the profit and loss account of the company, the amount of Rs. 3,90,000 had been shown as hire charges. On the basis of these, the Board in deciding the revision petition concluded that the decisions of the Calcutta High Court in the case of the Bank of India [1987] 67 STC 199, and of the West Bengal Taxation Tribunal in the case of the Modern Decorators [1990] 77 STC 470, have no applicability. Revision petition was therefore rejected.

5. Mr. P.G. Goswami, learned advocate appearing for the applicants, submitted that the applicant never gave on hire to anybody the dumper, the loader, or the cranes, but had actually used those machineries, with the help of driver operators, to do job work, i.e., to execute definite pieces of work entrusted to the applicant by its sister concern Central Concrete and Allied Products Limited. The entry in the profit and loss account describing the receipts as hire charge is simply the result of a clerical mistake in the nomenclature of an item in accounts, and such mistake is unable to alter the real nature of the transaction, he maintained. The applicant has stated, in para 6 of the application, that all the documentary evidence (in support of the claim that the petitioner did some work requiring expert application of the machinery, on labour and service basis, and received the amount of Rs. 3,90,000) were produced before the Commercial Taxes Officer and, therefore it is not true that the petitioners failed to produce documentary evidence in this respect. At the time of making his submission Shri P.G. Goswami, stated that the applicant's contention regarding receipt of service charges could be proved by entries in the books of accounts of the applicant, and respondent No. 2 had examined the books of accounts at the time of making the assessment. Therefore, according to Mr. Goswami, the decision of respondent No. 2 to treat the amount of Rs. 3,90,000 as receipts of sale under Section 2(g)(ii) of the 1941 Act is arbitrary and illegal. Mr. Goswami further prays for setting aside the appellate order passed by respondent No. 1, on the ground that the appeal was rejected perfunctorily without considering the grounds of appeal and without going into the facts and circumstances of the case. The Board also did not examine the factual question and made a complete misreading of facts when it stated in the order that "in this case the petitioner admittedly gave dumper, loader and cranes and received hire charge for those articles". But this is not true, and the case of the applicant is based on the contention that he did not receive anything for giving anything on hire. Mr. Goswami, therefore, submits that the impugned revisional order suffers from a failure of the Board to adjudicate on the facts and circumstances as well as the nature of transactions in this case, and should, therefore, be set aside.

6. Mr. D. Gangopadhyay, learned, State Representative appearing for the respondents, drew attention to the observation of the Board in para 9 of its revisional order that there is nothing to show that the dealer imposed any restrictions at the time when these instruments were actually used by the beneficiary to indicate that there was no transfer of right to use, On the other hand, it can be said that those instruments were given to the user with the drivers and the beneficiary determined how to use them and when". This shows, according to Mr.

Gangopadhyay, that the Board examined the question whether the applicant was executing job work or not. He adds that no evidence was produced before the Board to show that the applicant retained control when the instruments were used by the sister concern. Therefore, the Board came to the conclusion that those instruments were given to the user with the driver. The Board did not avoid its duty, as the last fact finding authority to adjudicate on the points of fact raised before it, and came to the legal conclusion that the transactions concerned amounted to sale under Section 2(g)(ii) of 1941 Act. The applicant has relied on the decision in the case of Bank of India v.Commercial Tax Officer, Central Section, Calcutta reported in [1987] 67 STC 199 (Cal) at the time of hearing before the Board as well as before us. The Board had observed that the ruling was not applicable in this case as it is clearly distinguishable. Mr. Gangopadhyay, maintained that the situation in the present case was such that the hirer had greater control over the hired item than he can have on his hired bank lockers. The Board had observed, simply because the drivers were in employment of the applicant at the relevant points of time, it did not mean that the machineries were not given to the persons, whose work was being done, for their use. Similarly, according to Mr. Gangopadhyay, the ruling of this Tribunal in the case of the Modern Decorators v.Commercial Tax Officer, Maniktola Charge reported in [1990] 77 STC 470 ; (1990) 23 STA 151, is not applicable to the present case on the grounds explained in the order of the Board. In this situation Mr.

Gangopadhyay submitted that there is no reason to interfere with the order passed by the Board in revision or with the orders passed by the authorities below the Board.

7. We have considered the submissions of the both sides. The factual situation is not very clear. It is undisputed that in the four quarters ending September 30, 1987 dumpers, loaders, and cranes belonging to the applicant had been used in work of Central Concrete and Allied Products Limited. It is also undisputed that the profit and loss account of the applicant-company for the same period show a receipt of Rs. 3,90,000 from the abovementioned concern as hire charges for dumper, loader and cranes. On the basis of these two things the assessing authority decided that the transaction in this matter amounted to sale in terms of Section 2(g)(ii) of the 1941 Act. The applicant disputes this judgment, claiming that if these facts are seen in conjunction with some other facts, the conclusion could be different. Unfortunately, the correctness or otherwise of those other facts have not been determined by the fact finding authority, the applicant claims. The first such claimed fact is that the machines, namely, dumper, loader and cranes, were operated by drivers employed by, and in the pay roll of the applicant at the time they were doing the work of Central Concrete and Allied Products Limited. Though this fact has been asserted directly in the present application, such direct assertion was not made either in the grounds of appeal or in the grounds of revision. The reason why this fact was hinted at in a round about manner at that time is not known. It is also not known whether this point was pressed at the hearings before the appellate and revisional authorities. It is also not known whether the appointment letters of these drivers, or the aquittance rolls regarding their payment, were produced before those authorities. The second fact that the applicant mentioned for consideration is that the machineries (with the drivers) were not hired out by the applicant, but were used by the applicant "on the labour and service basis" (para 6 of the petition) keeping the control of said machines completely with the applicant. The correctness or otherwise of this assertion can be most easily checked from by a reference to the agreement in this respect. But the agreement was oral, as the applicant says in the petition. An indication of the terms of the agreement might be found if one examined the bills raised in this respect by the applicant or the receipts given for payments received from Central Concrete and Allied Products Limited. But we do not find that the applicant invited attention of the appellate and revisional authorities to these or similar other documents, or that those authorities took note of them. Instead, we find that the assessing officer, respondent No. 2 noted in his order dated August 31, 1991 that the dealer's representative absolutely failed to justify their contention by way of producing tenable documentary evidence, and that the Board limited the discussion of factual issues to just one sentence saying that "petitioner admittedly gave dumper, loader and cranes and received hire charge for those articles". Even in the present petition, the petitioner does not say what evidence he produced before those authorities. The only submission made before this Tribunal about the supporting evidence in this matter is of Mr. P.G. Goswami, learned advocate for the applicant, at the time of hearing that this could be proved by entries in the books of accounts and respondent No. 2 had examined them.

8. There is no dispute about the fact that the applicant collected Rs. 3,90,000 as hire charges. If Central Concrete and Allied Products Limited, assigned to the applicant any specified job to be accomplished and the applicant executed the job with its own men and machinery, it would definitely be a service contract. Even if the types of machineries to be used in the job is specified in such contract the nature of contract will not change, and it would be the applicant's own concern how and when to utilise the machineries with the help of its men to accomplish the job within the time-limit, if any. Here the job specification and the time-limit (if any) and the service charges would form the essence of the contract. The necessary document must have specific reference to the job so specified. But if, on the other hand, the applicant lent its men and machineries to the user on hire on the terms that the latter will have the choice as to the manner of utilising the same suiting its (the hirers) job requirement during the period under hire, the contract would come within Section 2(g)(ii) of the 1941 Act because it would be a case of transfer of the right to the user to use (for the purpose of the job) the goods (namely, dumpers, loaders and cranes). Here the machineries, the period of hire and the rate of hiring charges are the essence of the contract.

9. In their own document, the applicant has mentioned of collection of hire-charges, without any reference to any job to be accomplished. A mere mention of hire charges without any job specification would lead to an inference that the applicant let the machineries on hire for use of the same by the user in the manner as suits the hirers' job requirement. In such case the accomplishment of the job or otherwise has practically no concern for the applicant whose only concern is the hire and safety of the machineries let for hire. For appropriate handling of such costly machineries the applicant may have to send its own machine-operators (exactly what has happened in the instant case) but the same alone will not mean that the applicant was given contract of accomplishing the job, unless, as already pointed out the applicant has materials to prove that he undertook any job contract and utilised the machineries for the purpose.

10. In spite of the fact that Central Concrete and Allied Products Limited is the applicant's sister concern, no document has come to identify the jobs which the applicant claims to have undertaken to accomplish by using its men and machineries. The decision in the case of Bank of India v. Commercial Tax Officer, Central Section, reported in [1987] 67 STC 199 (Cal) has elaborately discussed the nature of control exercised by the bank on the lockers (given to the customer for use against charges) vis-a-vis that exercised by the customer, leave little to question that such hiring does not come within the ambit of Section 2(g)(ii). The Board in discussing the ratio of the decision in the case of Modern Decorators v. Commercial Tax Officer, Maniktola Charge [1990] 77 STC 470 (WBTT) ; (1990) 23 STA 151 (WBTT) has highlighted the distinguishing features. We are also of the opinion that the ratio of these two decisions are not applicable to the applicant's case.

11. Therefore, the inescapable conclusion is that the applicant transferred the right to use machineries to Central Concrete and Allied Products Limited which in turn got the machineries utilised according to its own requirement with the help of the operators, and paid hire charges. The transaction comes within the purview of Section 2(g)(ii) and is subjected to tax. Hence the application is liable to be dismissed.

12. In this situation it is not possible for this Tribunal to accept that the Board committed a mistake when it proceeded on the basis of the undisputed facts, without considering them in conjunction with other facts mentioned by the applicant. We hold that there is no indication anywhere that evidence were ever produced in support of those factual contention. We have therefore, no reason to interfere with the order of the Board.

13. In the result, the application is dismissed. There will be no order regarding costs.