WA 250/2006 BEFORE HONBLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. O.P. Bhati, learned counsel appearing for the appellant (writ petitioner). Also heard Mr. D. Saikia, learned standing counsel for the responde nts. 2.1. Being aggrieved with the judgment and order dated 10.5.2006 in 3847/1999 , the unsuccessful writ petitioner has presented this Appeal. The Challenge in t he writ proceeding was to the assessment order dated 28.5.1997 for the assessmen t year 1995-96 under the Assam General Sales Tax Act, 1993 (hereinafter referred to as the AGST Act) and also the Appellate order dated 23.3.1999 passed by the Deputy Commissioner of Taxes, Silchar. The petitioner also challenged his compul sory registration as a dealer under Section 12 of the AGST Act by contending tha t his tent house business does not come within the purview of the Act and his bu siness should not be subjected to assessment to tax. 2.2. It may be recorded that the appellant’s gross turn over at Rs.1,47,426/- has been determined on best judgment basis and tax liability of Rs.71,144/- wit h interest and penalty have been assessed by the Assessing Authority. 2.3. The Appellate Authority sustained the assessment by rejecting the assess ee’s contention to the effect that tent house business is not exigible to tax an d that turnover has been determined on imaginary basis, which is nowhere near th e actual turnover. It was also recorded that although the assessee deals in seve ral items, but the Assessing Officer has correctly assessed tax on his furniture transactions as furniture of all kinds is a specific entry under Schedule VII of the AGST Act. It has also been held that since the dealer as a tent house own er transfers the right to use goods to other persons in lieu of payment, the ass essment order is not liable for interference. 3. The issue as to whether the tent house business of the appellant is liab le to tax under the AGST Act would largely depend on the answer as to whether in course of his tent house business, the assessee transferred to the hirer, the r ight to use the furniture owned by him. 4. It may be recorded that the AGST Act, 1993 defines various expressions a nd some of the relevant ones are noted below for ready reference : ’Dealer’ - Section 2(10) - Any person who carries on the business of selling or purchasin g goods in the State and includes - (i) & & & & & &; (ii) & & & & &..; (iii) & & & & &.. and includes a person delivering goods on hire purchase or any ystem of payment by installment or making any sale within the meaning of Clause (33) of this section; (iv) a contractor or a lessor; Lease Section 2(19) & & & & arrangement whereby the right to use any goods for any urpose is transferred by one person to another whether or not for a specified pu rposes for cash deferred payment or other valuable consideration without the tra nsfer of ownership and includes a sub-lease but does not include any transfer on hire purchase or any system of payment by installments. Lessee Section 2(20) lessee means any person to whom the right to use any goods for any purpose is transferred under a lease. Lessor - Section 2(21) lessor means any person by whom the right to use any goods for any purpose is transferred under a lease. Sale Section 2(33) ’sale’ with all the grammatical variations and cognate expressions means any transfer of property in goods by any person for cash, deferred paymen t or other valuable consideration, and includes - (i) any transfer otherwise than in pursuance of a contract of property in an y goods for cash, deferred payment or other valuable consideration; (ii) & & & & & & & &.; (iii) any delivery of goods on hire purchase or any system of payment by insta llments or under a financial lease; (iv) & & & & & & &..; (v) & & & & & & &..; (vi) & & & & & & &..; and such delivery, transfer or supply of any goods shall be deemed to be sale of those goods by the person making the delivery, transfer or supply and a purchas e of those goods by the person to whom such delivery, transfer or supply is made , but does not include a mortgage, hypothecation, charge or pledge. 5. By the 46th amendment, an inclusive definition under Article 366(29-A)(d ) was inserted whereby the concept of deemed sale is recognized. Sub-Clause(d) of Article 29-A provides that tax on sale or purchase of goods includes a t ax on transfer of the right to use any goods for cash, deferred payment or othe r valuable considerations , by deeming the transaction to be a sale . 6. Whether in a given transaction there has been a transfer of the right to use the goods is a question can be answered by examining the terms of agreement amongst the parties and will therefore have to be decided on the basis of the f acts of each case. The enquiry should be directed to find out as to whether, the transferee has the legal right to use the goods to the exclusion of the transfe ror. A mere licence to use the goods will not make the transaction liable to tax . 7.1. In a recent decision of our Court in Writ Appeal 138/2007 (Dipak Nath Vs . ONGC Ltd.) the Court referred to the decisions rendered by the Supreme Court i n the 20th Century Finance Corporation Ltd. vs. State of Maharashtra reported in (2000) 6 SCC 12. The Supreme Court recorded that the taxable event occurs on the transfer of the right to use the goods regardless of when or where the goods are delivered for use. The Apex Court also held that the levy of tax is not on use of goods but on the transfer of the right to use goods. 7.2. The case BSNL vs. Union of India reported in (2006) 3 SCC 1 was also referred to where Supreme Court indicated that the decision in 20th Century Fina nce Corporation Ltd. (Supra) cannot be an authority for the proposition that del ivery of possession of the goods is not a necessary concomitant for completing a transaction of sale for the purpose of Article 366 (29-A)(d) of the Constitutio n. 7.3. In the BSNL case the Supreme Court laid down several attributes in a tra nsaction to make it one where transfer of the right to use the goods can be infe rred. The relevant amongst those attributes for the present case are - (a) & & & & & &. ; (b) & & & & & &. ; (c) The transferee should have a legal right to use the goods - consequently all legal consequences of such use including any permissions or licences requir ed therefor should be available to the transferee; (d) for the period during which the transferee has such legal right, it has to be the exclusion to the transferor - this is the necessary concomitant of the plain language of the statute viz., a transfer of the right to use and not me rely a licence to use the goods; (e) having transferred the right to use the goods during the period for whic h it is to be transferred, the owner cannot again transfer the same rights to ot hers. 7.4. By referring to the Supreme Court decision in State pf A.P. vs. Rashtriy a Ispat Nigal Ltd. reported in (2002) 3 SCC 314, this Court recorded that whet her there has been a transfer of the right to use the goods has essentially to b e answered on a construction of the terms of the contract between the parties. 7.5. Accordingly this Court in Dipak Nath (Supra) referred to the contract ag reement between the parties which indicated the clear dominion and control of ON GC over the Crane i.e. the goods in question, during the period of contract. Acc ordingly the Court, on considering the agreements, held that as the contractor d oes not have exclusive and dominion control over the leased goods, it is a case of transfer of the right to use the goods. 7.6. Therefore the test of dominion control of the goods is indicated by our Court in Dipak Nath (Supra) to be determinative factor for answering the issue. 8. In the present case, it is submitted on behalf of the appellant (writ pe titioner) that there is no finding either of the Assessing Officer or of the App ellate Authority that right to use the goods was transferred by the tent house o wner and it is argued that without a specific finding on this aspect, the appell ant cannot be held liable to tax under the AGST Act. 9.1. Appearing for the Revenue it is argued by Mr. D. Saikia that tax is to b e charged on turnover during a year under Section 8 of the AGST Act, in respect of goods specified in Schedule -VII and since under Entry 8 of the Schedule, fu rniture of all kinds have been inserted, leasing of furniture and electronic go ods etc under Entry-9 of Schedule-VII, even for a brief period would make the ap pellant liable for tax under the AGST Act and therefore it was obligatory for th e appellant to have himself registered as a dealer under Section 11 and since he failed to get himself registered as required, the authorities have rightly orde red compulsory registration of the appellant as a dealer under Section 12 of the AGST Act. 9.2 The learned counsel further submits that despite giving opportunities, t he appellant had failed to produce his Books of Accounts and had also failed to respond to the notices issued by the Tax Authorities, and since the cash and led ger book were not available at the time of seizure, the transactions of the appe llant have been examined on the basis of available documents such as Challan Boo ks, Money Receipt Books and Stock Books and the assessment has been made as per the best judgment of the Assessing Officer (respondent No.4) under Section 17(5) of the AGST Act. 9.3 It is further contended that it was open to the appellant to show cause that he is not liable to levy of tax or for compulsory registration as a dealer by referring to the terms under which furniture and electronic goods are made av ailable to his customers and since the appellant failed to show the nature of th e transactions, his business has been rightly held exigible to tax, under the AG ST Act and no interference of the Court is called for. 10. In order to decide whether the appellant’s transactions has been rightly assessed to tax under the AGST Act, the Court has to decide on the terms and th e nature of the transactions between the appellant and his customers who hire go ods (furniture or electronic goods) from him. But in this case neither from the assessment order nor from the appellate order, the terms under which the goods a re leased out by the appellant can be gathered. While assessing the transactions of the appellant, the Assessing Officer has not indicated anywhere as to the terms of the transactions or the specific nature o f the petitioner’s tent house business. The Appellate Authority also proceeded o n the basis that since furniture is made a specific entry in Schedule-VII of the AGST Act, the Assessing Officer has rightly assessed the furniture to tax and n ot the other goods hired out by the appellant. 11. While there is no difficulty in understanding that only certain kinds of transactions would be exigible to tax under the AGST Act, to give a finding spe cifically as to whether the transactions of the appellant in course of his tent house business are exigible to tax, it would be necessary to have recourse to th e basic facts and also the terms covering such transactions. It would be necessa ry to know what is the agreement between the appellant and his customers and whe ther the terms of the agreement show that the appellant has transferred his righ t to use the goods to the exclusion of his own rights over the such goods during the period of the transactions. Unfortunately the basic facts i.e., the terms a nd conditions of the transactions are not available to this Court and the same a re not discernible from the assessment order and the order passed by the Appella te Authority. There is no finding by any of the said authorities by reference to the terms of the transactions as to whether in the instant case, there has been a deemed sale and whether the right to use the goods (i.e. furniture of all k inds and electronic goods) were transferred to the petitioner’s customers, to th e exclusion of the owner. 12. Even in the absence of the basic information as noted above, the Court o n its own understanding of the nature of the trade practices may gather the term s of the transactions of a tent house business. But whether it would be correct way to adjudicate on the issue is another thing altogether, as terms of the tran saction may differ on deal to deal basis or each businessman may have his own ma nner of doing business. In such situation, assuming anything on the factual aspe cts about the possible terms of the business and thereafter deciding the case on the basis of such assumption, may lead to injustice for the litigating parties. 13. In the above circumstances, we feel handicapped in pronouncing on the le gality or otherwise of the impugned orders. Accordingly the Court is left with n o choice but to remand this case to the original Assessing Authority for a fresh assessment by bringing on record the relevant materials to gather the terms, un der which goods are transacted by the appellant in course of his tent house busi ness. It is ordered accordingly. 14. The Writ Appeal is disposed of without any order on cost.