YASHWANT VARMA,J. - (1.) Heard Sri Krishna Agrawal, learned counsel for the revisionist and Sri B.K. Pandey, learned Standing Counsel.
(2.) These two revisions having arisen from proceedings taken by the respondent authorities in respect of a singular transaction, have with the consent of parties been taken up for disposal together. The facts upon which there is not much dispute are as follows:
(3.) The revisionist is a company having its registered office in Mumbai in the State of Maharashtra. It is engaged in the business of manufacture and sale of motor vehicles, chassis and other parts. For the purposes of effecting sales of the articles manufactured by it, it establishes regional sales offices in various States throughout the country. During the assessment year in question a motor vehicle was sold by the revisionist to M/s Motor & General Sales Limited, Karnal, Haryana vide Bill No. 30698 dated 24 March 1992. The aforesaid vehicle is stated to have been sold by M/s Motor & General Sales on hire purchase to one Sri Naseem Ahmad. It transpires that Sri Naseem Ahmad obtained a Form 34 on 13 June 1992 at the entry check post at Kairana, District Muzaffarnagar for the purposes of taking the vehicle to the State of Bihar. This Form 34 was not got cancelled at the exit checkpost of the State of U.P. On 25 January 2005, a tax of Rs. 39,000/ came to be levied upon the revisionist by the Assistant Commissioner, Trade Tax on the ground of violation of Section 28B of the U.P. Trade Tax Act, 1948, 1948 Act . By a separate order (challenged in Trade Tax Revision No. 558 of 2011) a penalty of Rs. 1,24,800 came to be imposed upon the revisionist in terms of the provisions of Section 15A(1) (g) of the 1948 Act. Sri Krishna Agarwal, learned counsel for the revisionist has assailed both the levy of tax as well as the imposition of penalty and has advanced the following submissions. Sri Agarwal submits that admittedly the vehicle in question had been sold to M/s Motors and General Sales Limited at Karnal in the State of Haryana. It is his submission that since the sale had taken place at Karnal in the State of Haryana itself, the presumption of sale which stands engrafted in Section 28B of the 1948 Act did not arise. Sri Agarwal further referred to and relied upon the judgment rendered by the Supreme Court in Asea Brown Boveri Ltd. Vs. Industrial Finance Corporation of India and Ors.(2004) 12 SCC 570 to submit that a hire purchase agreement is imbued with the primary purpose of financing the purchase of assets or equipment. While in law, the hirer may continue to be the owner of the asset or equipment, for all practical purposes the borrower becomes the owner of the property and enjoys full rights over the asset or equipment including the right to take delivery, enjoy use of occupation, maintain, operate and bear risks of loss or damage. He has also placed reliance upon a judgment rendered by a learned Single Judge of this Court in Commissioner Trade Tax, U.P., Lucknow Vs. S/s Shrimati Harjeet Kaur, Kanpur STI 2004 Allahabad High Court 27 to contend that the hirer in view of the explanation appended to Section 28B is deemed to be the owner of the vehicle. Referring then to the fact as noted in the orders impugned, Sri Agarwal submitted that undisputedly Naseem Ahmad appears to have sold the vehicle to one Ali Mohammad after it had crossed into the State of U.P. He submits that neither the actions taken by Sri Naseem Ahmad post the delivery and sale of the vehicle or the infraction of registration laws by him could by any stretch of imagination be said to attach a liability of tax upon the revisionist. Sri Pandey, learned Standing Counsel while countering the above submissions has contended that a hire purchase agreement by its very nature does not result in a sale or a transfer of property in goods. He, therefore, submits that the revisionist continued to be the owner of the vehicle and was consequently correctly held liable to be proceeded against for violation of the provisions of Section 28B. He further referred to the fact that the hire purchase agreement itself was one which was executed between the revisionist and Naseem Ahmad and therefore submitted that the revisionist was the owner who admittedly failed to comply with the provisions of Section 28B. In addition to the above Sri Pandey placed emphasis upon the facts as gathered by the respondentauthorities and which stood recorded in the orders impugned. He highlighted the findings recorded in the order of the Tribunal to the effect that the vehicle had come to be registered with the transport authorities at Gorakhpur while the address of the selling dealer was shown to be at Azamgarh. This, Sri Pandey submits, has compelled the Tribunal to correctly come to a conclusion that the vehicle had been sold within the State of U.P. He further placed reliance upon Clause (2) of the hire purchase agreement to submit that the owner of the chassis in question was shown to be the revisionist itself and in view of the above he submitted that both the levy of tax and imposition of penalty was clearly justified. It is these rival submissions which fall for consideration. ;