JUDGMENT Hon’ble Bharati Sapru, J.—Heard Sri Kshitij Shailendra, learned counsel for the assessee and Sri B.K. Pandey, learned Standing Counsel for the State. 2. This revision has been filed by the assessee under Section 11 of the U.P. Trade Tax Act for the assessment year 1995-96. The question of law referred to is as hereunder : (i) Whether on the facts and circumstances of the case the tribunal was right in holding that the right to receive the rent in the present case towards hire-purchase will amount right of transfer to use the vehicle? 3. The facts of the case are that the assessee had given one Maruti Car No. DA-1-C/772 and Truck No. UHP-966 to M/s Dugdh Utpadak Sahkari Sangh on rent of Rs. 225/- and Rs. 500/- per day vide agreement dated 25.6.1994. The agreement is appended as Annexure-1 to the revision. 4. Under the terms of the agreement a daily rent was to be paid for both the Car and the Truck and apart from that Rs.15 per km. were to be charged. The ownership remain with the assessee but the two vehicles were given into exclusive use of Dugdh Utpadan Sangh. The salary of the driver and conductor were to be paid by the assessee and the cost of maintenance was also to be borne by the assessee. 5. It is the contention of the counsel for the assessee that a plain perusal of the agreement would show that it was not an agreement for a right to use the vehicle but was merely in the nature of a service. 6. The assessing officer by its order dated 28.3.1998 imposed tax of a sum of Rs. 24,146/- on the assessee. 7. Being aggrieved by the assessment order the assessee filed a first appeal No. 636 of 1998 and the appeal of the assessee was allowed by the order dated 6.11.1998. The first appellate authority gave findings to the fact that ownership and the possession of the vehicles remain with the assessee and came to a conclusion that they did not amount to transfer of right to user as defined under Section 3F of the U.P. Trade Tax Act. 8. The first appellate authority gave findings to the fact that ownership and the possession of the vehicles remain with the assessee and came to a conclusion that they did not amount to transfer of right to user as defined under Section 3F of the U.P. Trade Tax Act. 8. The department being aggrieved by the order passed by the first appellate authority filed a second appeal before the Trade Tax Tribunal and the Trade Tax Tribunal by its order dated 13.11.2000 allowed the second appeal and set aside the order of the first appellate authority by coming to the conclusion that a bare perusal of the agreement itself would show that infact the agreement was nothing but a transfer of the right to use and, therefore, it would be taxable under Section 3F of the U.P. Trade Tax Act. This revision has been filed against the order of the Tribunal dated 13.11.2000. 9. Learned counsel for the assessee had cited two decisions of this Court one is in the case of Mohd. Wasim Khan v. CIT, 2007 UPTC 300 and the other decision is a decision of this Court in the case of M/s Ahuja Goods Agency and another v. State of U.P. and another, 1997 UPTC 629 in both these decisions this Hon’ble Court has held that whether or not the provisions of Section 3F are applicable it depends on a reading of the agreement itself, which has to be examined to see whether the goods were at a deliverable stage and whether they have been delivered at any stage. Whether the transferee had got a legal right to use the vehicle and consequently whether as a consequence thereof there was a complete exclusion of legal rights to use by the transferor. 10. From a perusal of the agreement, which is on record it is clear that the ownership and the possession of the two vehicles remained with the assessee, the burden of maintaining the vehicles also remained with the assessee. The risks involved in the transportation from one place to the other also remained with the assessee. Only clause-7 of the agreement indicates that during the period of a hire no other person would be able to use the said vehicle. The risks involved in the transportation from one place to the other also remained with the assessee. Only clause-7 of the agreement indicates that during the period of a hire no other person would be able to use the said vehicle. However, it cannot be said that such a clause of exclusion would render the agreement of hire service amount to conversion of the same into a complete case of the transfer to use. 11. Learned counsel for the assessee has argued that the Tribunal has not given any reason for bearing the findings given by the first appellate authority or for coming to the conclusion that at any stage the vehicle had been delivered to the person, who had hired the vehicle. 12. There is substance in the arguments of the learned counsel for the assessee that such an agreement for the service of transportation would not amount to a transfer of right to user as provided in Section 3F of the U.P. Trade Tax Act. 13. However, learned counsel for the State has argued that because of the exclusivity clause that no other person could use the vehicles during the period of hire it meant that it would amount to a transfer of right to user or that delivery had been completed at the stage of making the agreement itself for reasons of adding that clause of exclusivity. 14. After hearing counsels for both sides and after perusing the material on record and examining the agreement, I am of the opinion that the terms and conditions of the agreement in this particular case did not amount to transfer of right to user as defined in Section 3F of the U.P. Trade Tax Act. The order of the Tribunal is not justified, it is set aside. The order of the first appellate Court is confirmed. 15. This revision is allowed. —————