THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.18398 of 2008 April 15, 2011 Between: M/s.Mandapeta Gas Company, Mandapeta, E.G.District Represented by its Proprietor, B.Satyanarayana, S/o.Bulliyya … Petitioner AND The Commercial Tax Officer, Mandapeta, E.G.District … Respondent THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.18398 of 2008 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The petitioner is a proprietary conern having Liquefied Petroleum Gas (LPG) agency of M/s.Hindustan Petroleum Corporation Limited (HPCL). They receive LPG cylinders and regulators from HPCL and supply them to customers. Statedly they receive commission from HPCL for the same. The petitioner is a ToT dealer. For the assessment years 2005-06 and 2006-07, the respondent issued a show cause notice dated 31.3.2008 to the petitioner proposing to levy Value Added Tax (VAT) under Section 4(8) of the Andhra Pradesh Value Added Tax Act, 2005 (the Act) on hire charges received by the petitioner from HPCL for leasing out their vehicles for transporting LPG cylinders. The petitioner was asked to submit objections within seven days from the date of the notice i.e., 31.3.2008. The petitioner submitted objections. After considering the objections, the respondent passed assessment order dated 24.5.2008 levying VAT at 12.5% on hire charges received by the petitioner from HPCL. Assailing the assessment order the petitioner filed the instant writ petition without availing the alternative remedy of an appeal to the Appellate Deputy Commissioner. This Court admitted the writ petition on 25.8.2008. Though the petitioner filed W.P.M.P.No.23949 of 2008 for stay of collection of the disputed tax, the same was dismissed as withdrawn. Be that as it is, when the matter came up before us for hearing, the Special Counsel for Commercial Taxes submits that the issue raised herein is covered by two judgments of this Division Bench in M/s.G.S. Lamba & Sons v STAT[1] and M/s.Viceroy Hotels Ltd v CTO[2]. The Counsel for the petitioner does not dispute that if there is a transfer of right to use goods by the dealer, the total amount realized from such transfer is exigible to VAT as deemed sale under Section 4(8) of the Act. He, however, submits that the respondent proceeded on the premise that the petitioner is running a petrol bunk, and was using oil tanker trucks for the purpose of transporting petroleum products, which is not correct. Secondly, he submits that the hire/transportation charges received not only by the petitioner but also by M/s.Anjani Gas Company, Ravulapalem were also included in determining the taxable turnover, which is unsustainable. He has also placed before this Court the statements showing the amounts paid by HPCL towards transportation charges to the petitioner as well as M/s.Anjani Gas Company. The Counsel does not dispute that the petitioner has leased out trucks for transporting LPG cylinders to HPCL. It may be true that the respondent in the show cause notice, as well as in the assessment order, treated these trucks as “oil tanker trucks”. The same does not make any difference, when it is admitted that the hire charges received by the petitioner from HPCL are towards hiring of trucks for transporting LPG cylinders. In M/s.G.S.Lamba & Sons and M/s.Viceroy Hotels Ltd this Court, following the decisions of the Supreme Court in 20th Century Finance Corpn. Ltd. v. State of Maharashtra[3], held that the transfer of goods for use by the lessee, or the agreement to transfer the right to use goods and/or delivery or deliverable goods would be sufficient to hold that it is a deemed sale contemplated under Section 4(8) of the Act. The issue, therefore, is squarely covered by the above two judgments. In so far as other disputed questions are concerned while exercising extraordinary jurisdiction under Article 226 of the Constitution, ordinarily, this Court would not go into disputed questions of fact. The petitioner may avail appropriate remedy under the Act. The writ petition is devoid of any merit and is, accordingly, dismissed, without any order as to costs. _______________ (V.V.S.RAO, J) ______________________________ (RAMESH RANGANATHAN, J) April , 2011 YS [1] T.Rev.C.Nos.154 of 2010 and batch, dated 28.1.2011 [2] W.P.Nos.17092 of 2010 and batch, dated 23.2.2011 [3] (2000) 119 STC 182 (SC) : (2000) 6 SCC 12 : AIR 2000 SC 2436