WP(C) 3833/2004 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA The petitioner, Assam State Transport Corporation (hereinafter referred to as ASTC), has filed this writ petition impugning deduction of sales tax at so urce from the bills of the petitioner on the basis of the direction of the Finan ce Department, Govt. of Assam. The deductions were being made by the Oil and Nat ural Gas Corporation Ltd. (hereinafter referred to as ONGC) in respects of bill s submitted by the petitioner for hiring and using buses belonging to ASTC. While entertaining the writ petition, this court by order dated 10.06.2 004 restrained the respondents from making any tax deduction at source from the bills of the petitioner. Although the writ petition was pending for the last mor e than seven years, the Govt. of the Assam in the Finance Department has not fil ed any counter affidavit resisting the plea taken by the petitioner. Be it state d here that the ONGC in its affidavit in opposition filed on 20.06.2011 has supp orted the case of the petitioner. Be it also stated here that the petitioner has brought on record certain developments that took place during pendency of the w rit petition. In this connection, it has filed an additional affidavit on 07.06. 2011. In the said additional affidavit it has been stated that during pendency of the writ petition a show cause notice dated 07.09.2004 was issued to the pet itioner by the Deputy Commissioner, Central Excise, Jorhat alleging that the pet itioner was rendering taxable service to the ONGC by providing their vehicles an d since long such service had fallen under Tour Operator , but the petitioner did not take registration from the jurisdictional authority of Central Excise as required under the Finance Act, 1994 w.e.f. 01.04.2000 onwards. By the said not ice, the petitioner was directed to pay service tax of Rs. 1,12,532/- with furth er provision of charging interest and penal provision. The show cause reply subm itted by the petitioner was rejected by order dated 04.12.2006. Being aggrieved by the said order, the petitioner had filed an appeal be fore the Commissioner (Appeals), Central Excise, Guwahati. The said appeal was r ejected by order dated 18.12.2007 holding that by no stretch of imagination it c ould be inferred from the agreement between the parties that the petitioner had planned, scheduled, organised or arranged tours for ONGC and thus, the petitione r can not be brought under the definition of Tour Operator as per the provisio n of Finance Act, 1994. Referring to the provision of Assam General Sales Tax Act, 1993, it is t he stand of the petitioner that there being no transfer of right to use any good s for the purpose of levy sales tax, direction for deduction of tax at source co uld not have been issued. It has been contended that Article 366 (29A) (d) stipu lates that levy of tax is not on sale of goods, but on transfer of right to use goods. In the counter affidavit filed by the ONGC, it has been stated that esse nce of the contract agreement is not the minibus hiring from the ASTC, but a cov enant to employ the same for rendering the services mentioned in the agreement, i.e. carrying ONGC’s school children at Nazira, Lakwa & Sivasagar and the transa ction does not amount to transfer of the right to use the minibus in favour of t he ONGC. It has also been contended that there is no delivery of the bus by the ASTC to ONGC inasmuch as the effective custody and control of the same remains w ith the ASTC. Above being the position, i.e. the transaction being not one of the tran sfer of minibuses in favour of the ONGC and that only the services of the buses have been utilised by the ONGC and also having regard to the aforesaid decisions of the Commissioner (Appeals), I am inclined to accept the writ petition by int erfering with the impugned decision conveyed by the Finance Department to the ON GC directing it to deduct tax at sources. Consequently, the writ petition is all owed. If before passing the interim order in this proceeding any tax was deducte d from the ASTC at source, same shall be refunded to the ASTC.