THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.79 OF 2011 ORDER: (Per the Hon’ble Sri Justice V.V.S.Rao) The petitioner entered into a transport contract with M/s. Hindustan Petroleum Corporation Ltd., (HPCL) for transporting Liquefied Petroleum Gas (LPG) cylinders of HPCL to various delivery centres. The jurisdictional Assistant Commissioner (C.T.) proposed to assess the transportation charges received by the petitioner to Value Added Tax (VAT) under Section 4(8) of the Andhra Pradesh Value Added Tax Act, 2005 (the Vat Act). The assessing officer assumed that the transfer by the petitioner of the right to use his trucks is a deemed sale and that the situs of sale is in Andhra Pradesh attracting VAT under Section 4(8) of the VAT Act. The petitioner contends that the activity of transportation of LPG from one place to another place, on the basis of fixed charges in relation to the distance involved, does not attract VAT under the VAT Act, and does not fall within the definition of sale/deemed sale. He would further contend that he himself is using the tanker trucks collecting transportation charges and that the vehicles supplied by him cannot be used by HPCL for any work other than transporting LPG cylinders. This Court, while ordering notice before admission, granted interim stay of all further proceedings pursuant to the impugned order subject to the petitioner paying a sum of Rs.7,50,000/- within the time stipulated. The parameters and tests to determine whether there is a transfer of the right to use goods, within the meaning of explanation IV to Section 2(28) read with Section 4(8) of the VAT Act, are well settled. This Court, relying on 20th Century Finance Corporation Limited v. State of Maharashtra[1] and BSNL v. Union of India[2] and other binding precedents, culled out various principles in two unreported judgments, namely, G.S.Lamba and Sons v. Sales Tax Appellate Tribunal, Hyderabad[3] and M/s.Viceroy Hotels Limited v. The Commercial Tax Officer, General Bazar Circle, Hyderabad[4]. In a nutshell, existence of goods which are to be delivered, the agreement to transfer the goods, and the availability of goods to the lessee, are the three core conditions which must exist for inferring the transfer of the right to use goods. It is also well settled that the place of agreement, or the place where the parties entered into the agreement, would be the situs of the sale where tax can be levied. A fundamental question is raised before us that the agreement between the petitioner and HPCL was entered into at Mumbai. A copy thereof is now placed for the first time before us. The agreement begins with the recital that it was made at Mumbai on 01.05.2005. The petitioner would contend that when the situs of sale is in Mumbai, the Assistant Commissioner (C.T.) at Visakhapatnam has no jurisdiction to tax the transportation charges received thereunder by the petitioner. The Special Counsel for Commercial Taxes opposed the Writ Petition. He would urge that the evidence as to the place of entering into the agreement by the parties, which was placed before this Court for the first time, was not placed before the assessing officer. There is no dispute on this aspect. In such circumstances, it would not be proper for this Court to determine the exigibility to tax as it is a question of fact. We deem it appropriate that, in the first instance, the assessing officer should examine this issue. We give liberty to the petitioner to place copies of the agreements before the assessing officer for determining whether the situs of sale is in Andhra Pradesh or in Mumbai. We accordingly allow the Writ Petition and remand the matter to the first respondent to take necessary action, after giving notice to the petitioner, keeping in view the observations hereinabove. The amount, which is stated to have been paid in obedience to the orders of this Court dated 05.01.2011, shall be adjusted and shall abide by the final orders of the assessing officer or the appellate authority, as the case may be. There shall be no order as to costs. _______________ (V.V.S.RAO, J) _____________________ (SANJAY KUMAR, J) 27th October 2011 RRB [1] (2006) 6 SCC 12 [2] (2006) 3 SCC 1 : (2006) 145 STC 91 [3] T.REV.C.No.154 of 2010 and batch, dated 28.01.2011 [4] W.P.No.17092 of 2010, dated 23.02.2011