JUDGMENT Rajes Kumar, J.
1. These two revisions under Section 11 of the U.P. Trade Tax Act (hereinafter referred to as the "Act") are directed against the order of the Tribunal dated 13th August, 2004 relating to the assessment year, 1994 95 and 1995-96.
2. It is alleged that the applicant was engaged in the business of hire purchase and leasing of plant and machinery, motor vehicle etc from its registered office situated at 17-B, Asaf Ali Road, New Delhi. During the assessment year, 1986-87, it is alleged that M/S Coolade Beverages (a unit of M/S Sikand Polypack Pvt. Ltd., 7, Barakhamba Road, New Delhi), hereinafter called as Lessee Company, approached the applicant company for financing the plant and machinery on lease basis for the purpose of installation of the same in their plant situated in the State of U.P. for which a proposal was signed on 5th March, 1987 and the lease agreement dated 20th March, 1987, copy of which is Annexure-3 to the revision was finally executed at New Delhi. For the execution of the agreement, orders were placed to M/S Express Bottlers Services Pvt Ltd, Bombay and M/s Setwell Conveyors, Bombay, who have despatched the machinery directly to the factory of lessee Company Copies of bills of M/s Express Bottlers Services Pvt. Ltd dated 26th February, 1987 and Setwell Conveyors dated 5th March, 1987 are annexed as Annexure-2 to the revision by which the goods were purchased and given on lease to the lessee, Machinery were to be installed at plot No. 19/1, Site No. IV, Industrial Area, Sahibabad, Ghaziabad. Similarly, in the year, 1990, M/S Ajay Forgings Pvt. Ltd, M.G. Road, Calcutta approached the applicant for financing the plant and machinery on lease basis for the purpose of installation of the same at their plant situated in the State of U.P. Agreement was executed on 6.11.1990 at Delhi, which is Annexure-7 to the revision. It is alleged that in pursuance of the agreement, orders were placed to M/S Avtar Steel & Agro Industries, Mandi Govindgarh, Punjab, who have despatched the machinery against bill No. 10 dated 26.10.1990, copy of the bill is Annexure-6 to the revision.
3. During the year under consideration, applicant has received lease rent from M/S Coolade Beverages Ltd a unit of M/S Sikand Polypack Pvt Ltd, 7- Barakhamba Road, New Delhi and M/S Ajay Forgings Pvt Ltd, M.G. Road, Calcutta against leasing of machinery at Ghaziabad, U.P. Assessing authority levied the tax on the lease rent under Sections 3-F of the Act. First appeals filed by the applicant were rejected. Applicant filed second appeals before the Tribunal which were also rejected by the impugned order. Before the Tribunal, applicant had raised following issues:
(1) An agreement dated 20.3.1987 and 6.11.1990 was executed at Delhi and, therefore, the transfer of right to use the goods took place at Delhi and not in the State of U.P. and, therefore, notax can be levied under Section 3-F of the U.P. Trade Tax Act. In support of the submission, reliance was placed on the decision of the Apex Court in the case of 20th Century Finance Corporation Ltd. v. State of Maharashtra, 2000 NTN Volume-16 page 425.
(2) Commissioner of Trade Tax vide order dated 14th February, 2000, appointed Assistant Commissioner, Trade Tax, Sector-3. Moradabad as the Assessing Authority who has passed order for the assessment year, 1991-92 and 1993-94, therefore, the Trade Tax Officer, Sector-1 Ghaziabad had no jurisdiction to pass the order inasmuch as he was not the Assessing Authority.
4. Tribunal held that in column No. 5 of the agreement dated 20.3.1987, it is mentioned that the equipment shall be established at Delhi and will not be removed from there. Therefore, such agreement was not related to the machinery given on lease within the State of U.P, Tribunal further held that in the agreement dated 6.11.1990, in the column No. 5, it is not mentioned that where the machine shall be used. Therefore, both the agreements have been held not related to the machines given on lease in U.P. in respect of which lease rent were received and, accordingly, held that the decision of the Apex Court in the case of 20th Century Finance Corporation Ltd.(supra) does not apply. Tribunal further held that for the assessment years, 1994-95 and 1995-96, no order have been passed by the Assistant Commissioner, Trade Tax, Moradabad and the order of the Commissioner of Trade Tax dated 14th February, 2000 is the order passed after the assessment orders passed on 27th May, 1999 relating to year in dispute. Therefore, the order of the Commissioner of Trade Tax dated 14th February, 2000 is not applicable to the assessment years 1994-95 and 1995-96 and the order passed by the Trade Tax Officer, Ghaziabad was within jurisdiction.
5. Heard learned counsel for the parties.
6. Learned counsel for the applicant submitted that the Tribunal has erred in holding that the alleged two agreements dated 20.3.1987 and 6.11.1990 executed at Delhi were not relating to the machineries leased out within the State of U.P. He further submitted that before the Tribunal, it was also argued that the machinery which were given on lease were purchased from outside the State of U.P. and were directly supplied by the Ex-U.P. Vendors at the site of the lessee in the State of U.P. and, therefore, the transaction was covered by Section 3 of the Central Sales Tax Act and hence, the State of U.P. has no jurisdiction to levy the tax. Learned counsel for the applicant submitted that this argument was raised before the Tribunal, but the Tribunal has not considered the said argument, and on the basis of the copies of the bills relating to the purchases of machineries. Learned counsel for the applicant tried to show that the machines leased out to the lessee were [ purchased from outside the State of U.P. Learned Standing Counsel supported the order of the Tribunal and submitted that there is nothing on record to show that any argument was raised by the learned counsel for the applicant before the Tribunal that the machines were purchased from outside the State of U.P. and the same were supplied in the course of inter state covered by Section 3 of the Central Sales Tax Act. He further submitted that the bills relates to the year, 1987 and 1990 and it is not clear that the machinery leased out to the lessee relates to the same bills and were supplied directly from outside the State of U.P. to the lessee at the site. He further submitted that the alleged bills are of to the date prior to the alleged agreements dated 20.3.1987 and 6.11.1990, therefore, it cannot be said that the movement of goods from outside the } State of U.P. was in pursuance of the leased agreement which is alleged to be relating to the leased machines in dispute. He further submitted that in any view of the matter, there is no case of the applicant that the machines have been brought from outside the State of U.P. in the course of inter state in the year under consideration and, therefore, no benefit should be allowed in the year under consideration.
7. I have perused the order of the Tribunal and the authorities below and considered the submissions of both the parties.
8. In my view, there is no force in the argument of the learned counsel for the applicant. The agreement dated 20.3.1987 which is alleged to be relating to the leased machines shows that in paragraph 5, it is specifically mentioned that the machinery shall be installed at Delhi and shall not be removed. In the agreement dated 6.11.1990 in column No. 5 no place for the use of the machines is mentioned. Therefore, it is very doubtful to say that the alleged two agreements relates to the leased machines. Finding of the Tribunal that the alleged two agreements are not relating to the leased machines is finding of fact and there is no reason to interfere with such finding in absence of any contrary material. In view of the aforesaid findings, the decision of the Apex Court in the case of 20th Century Finance Corporation Ltd.(supra) does not apply.
9. So far as the argument of the learned counsel for the applicant that the leased machines were supplied from outside the State of U.P. in pursuance of the leased agreement in the year, 1987 and 1990 and the transaction being covered under Section 3 of the Central Sales Tax Act cannot be taxed under Section 3-F of the U.P. Trade Tax Act cannot be accepted. A perusal of the order of the Tribunal shows that no such argument was raised. However, if such arguments have been raised and not considered, it is open to the applicant to move an application under Section 22 of the Act before the Tribunal. It is further stated that even in according to applicant own case, machinery were purchased prior to the date of the agreement and, therefore, it cannot be said to be a case covered under Section 3 of the Central Sales Tax Act. Reference of a proposal for leasing of machinery and equipment prior to the date of the leased agreement is not relevant because it was mere a proposal and it appears that such document is neither a part of the alleged leased agreement nor it was placed before any of the authorities below.
10. For the reasons stated above, both the revisions have no force. No other point has been raised.
11. In the result, both the revisions fail and are, accordingly, dismissed.