Transfer of right to use goods requires real possession and exclusive control, not a mere aircraft hire service.

Air transport services rendered through leasing aircraft were not treated as a sale or transfer of the right to use goods under the Orissa Sales Tax Act because the hirer did not obtain possession, effective dominion, or exclusive control over the aircraft. The aircraft remained under the owner's pilot and operational control, with the owner bearing maintenance and responsibility, so the Article 366(29A)(d) doctrine did not convert the arrangement into a deemed sale. The commentary also notes that a prior Full Bench ruling on the same factual matrix continued to apply and could not be displaced merely by relying on later constitutional exposition where the essential transfer element was absent.

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Issues: (i) Whether rendering of air transport services by leasing aircraft amounted to a sale within Section 2(g)(iv) of the Orissa Sales Tax Act, 1947. (ii) Whether the Tribunal was justified in distinguishing the Full Bench decision in the assessee's own case.

Issue (i): Whether rendering of air transport services by leasing aircraft amounted to a sale within Section 2(g)(iv) of the Orissa Sales Tax Act, 1947.

Analysis: A transaction is a transfer of the right to use goods only when the transferee obtains a real right to use the goods, with the goods being available for delivery and the transferor being excluded for the relevant period. On the facts, the aircraft always remained under the control of the assessee's pilot, the assessee bore the maintenance and operational responsibility, and there was no actual transfer of possession or effective dominion over the aircraft to the users. The principles explained in Article 366(29A)(d) of the Constitution of India and the later exposition of the transfer-of-right-to-use doctrine did not support treating such air transport services as a deemed sale.

Conclusion: The rendering of air transport services did not amount to sale under Section 2(g)(iv) of the Orissa Sales Tax Act, 1947, and this issue was decided in favour of the assessee.

Issue (ii): Whether the Tribunal was justified in distinguishing the Full Bench decision in the assessee's own case.

Analysis: The Full Bench had already held that the charges received for hiring the aircraft services did not constitute sale under the OST Act. The later attempt to distinguish that binding decision solely on the basis of the Constitution Bench ruling on situs and transfer of right to use goods was incorrect because the present transaction lacked the essential element of transfer of possession and effective use by the hirer. The earlier precedent continued to govern the issue on the same factual matrix.

Conclusion: The Tribunal erred in distinguishing the Full Bench decision, and this issue was decided in favour of the assessee.

Final Conclusion: The Tribunal's order and the corresponding assessment were set aside, and the appellate order in favour of the assessee was restored.

Ratio Decidendi: A transaction amounts to a transfer of the right to use goods only when the transferee obtains an effective and exclusive right to use the goods, not merely a facility or service where possession and control remain with the owner.

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