TaxTMI 
TaxTMI 
2004 (9) TMI 620
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....e of fuel, lubricants, operation and maintenance of cranes at the HSL. During the year 1985-86 the petitioner received Rs. 47,85,000 towards charges for operating the crane. Of this amount, Rs. 39,15,000 represents the receipts after July 1, 1985. The C.T.O., Gajuwaka, assessed the petitioner on the basis of the said receipts under section 5-E of the Andhra Pradesh General Sales Tax Act, 1957 which provides for levy of tax on the amounts received in respect of transfer of right to use goods which is a deemed sale. Aggrieved by this assessment order, the petitioner filed an appeal before the Appellate Deputy Commissioner (C.T.), Kakinada, contending that there was no transfer of right to use the crane as the petitioner had only undertaken to....
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....uses in the agreement in isolation to the exclusion of clauses indicating that the crane was physically in control of the petitioner and operated at its risk and expense? (3) Whether the petitioner is liable to tax on the transaction in question? (4) In any event whether the petitioner is not liable to tax on receipts prior to September 13, 1985 in view of decision in State Bank of India v. State of Andhra Pradesh [1988] 70 STC 215 (AP)? 4.. A copy of the agreement has been annexed to the revision. The terms and conditions of the agreement have been laid down in para (6). Para (6)(i) of the agreement reads as under: "Operation of the crane would be under the control, directions and supervision of HSL. The crane will....
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....every rupee of the aggregate of such amount realised or realisable by him during the year: Provided that no such tax shall be levied if the total turnover of the dealer including such aggregate is less than Rs. 1,00,000." 6.. In State Bank of India v. State of Andhra Pradesh [1988] 70 STC 215 this Court was dealing with a matter concerning bank lockers. The bank lockers were held to be not assessable to tax under section 5-E of the APGST Act on the ground that the lockers were not goods as they were not movable and they were immovable as they were imbedded. The contention which was upheld by the court was that the hire charges collected by the banks for running the lockers were collected as consolidated charges for a variety of servic....
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....ctor. We have reached this conclusion because the effective control of the machinery even while the machinery is in the use of the contractor is that of the petitionercompany. The contractor is not free to make use of the same for other works or move it out during the period the machinery is in his use. The condition that he will be responsible for the custody of machinery while the machinery is on the site does not militate against the petitioners' possession and control of the machinery. For these reasons, we are of the opinion that the transaction does not involve transfer of the right to use the machinery in favour of the contractor. As the fundamental requirement of section 5-E is absent, the hire charges collected by the petitioner fr....