JUDGMENT : Ritu Bahri, C.J. All the three revisions have been filed by the revisionist for three separate years, i.e. 2007-08, 2008-09 and 2009-10. 2. The revisionist has come-up in revisions against the common order dated 13.09.2012 passed by the learned Commercial Tax Tribunal and the orders dated 6th December, 2010 passed by the Assistant Commissioner, Commercial Tax, Dehradun. 3. The revisionist is the registered owner of a bus having Registration No. UA-7Q-1941. On 10.01.2007, the revisionist entered into an agreement with the Uttarakhand Transport Corporation, by which the revisionist agreed to provide her bus on certain terms and conditions. Copy of the Agreement is filed as Annexure-1 to the revision. The respondentDepartment collected information regarding the payments made to the persons, who had provided their buses to the Uttarakhand Transport Corporation. On the basis of the information received from the said Corporation, a show-cause notice was issued to the revisionist by the Assistant Commissioner, Commercial Tax, Dehradun treating the transaction to be a deemed sale covered by “transfer of right to use”. The revisionist gave her reply, however, the Assistant Commissioner, Commercial Tax, Dehradun passed the Assessment Orders dated 6th December, 2010. As per the terms of the Agreement (Annexure No.1), the payment received by the revisionist for giving her buses for hiring was treated to be a deemed sale and was covered by transfer of right of use and tax was imposed. 4. On Appeals, the Joint Commissioner (Appeal-II), Commercial Tax, Dehradun, vide common order dated 27th August, 2011, allowed the Appeals. 5. Against the common order dated 27th August, 2011 (Annexure-3 to the revision), the Revenue preferred Second Appeal Nos. 186, 185 and 187 of 2011 (Annexure No. 4 to the revision), which were allowed by the Commercial Tax Tribunal, Dehradun by order dated 13.09.2012 (Annexure No. 5 to the revision) and the assessment orders passed by the Assistant Commissioner, Commercial Tax, Dehradun were upheld. 6. In the present revisions, the revisionist has raised the following questions of law:- A. Whether on the facts and circumstances of the case, the learned Commercial Tax Tribunal was justified in treating the transaction in question to be a deemed sale as transfer of right to use within the provisions of Section 2(40) of the Uttarakhand Value Added Tax Act, 2005? B. Whether the learned Commercial Tax Tribunal was justified in upholding the assessment made by the Assistant Commissioner, Commercial Tax, when the First Appellate Court had not decided the appeal on merits? C. Whether the learned Commercial Tax Tribunal was justified in holding that the deduction on account of salary of driver, cleaner and cost of diesel and lubricants is not deductible from the gross amount received from the Uttarakhand Transport Corporation?” 7. As per the order of the Commercial Tax Tribunal (Annexure No. 5 to the revision), a report dated 29.07.2010 was sent to the Assessing Authority by the Deputy Commissioner (S.I.B.), Commercial Tax, Dehradun with regard to the details of the payments made to private owner of buses, which were engaged to carry the passengers on contract basis. The following details were given by the Deputy General Manager (Operation) Uttarakhand Transport Corporation, Dehradun provided the following details to the Deputy Commissioner (S.I.B.), Commercial Tax, Dehradun regarding the respondent / assesse:- Sl. No. Contracted Bus Name and Address of Bus Owner Name of Depot Year-wise details of annual payments made to the Bus Owner 2007-08 2008-09 2009-10 1. UK-07Q-194 Smt. Nirmala Agarwal, w/o S.P. Agarwal, 10, Vikas Lok, Lane No. 1, New Sahastradhara Road, Dehradun. I.S.B.T. Dehradun 10,50,577-00 11,35,653-00 12,22,831-00 Total 8. On the basis of the above information, a show cause notice was given to the revisionist that as per the provisions of the Uttarakhand Value Added Tax Act, 2005, the above said total annual payments received by the revisionist were in connection with the transfer of right to use the vehicle and the same were taxable under Section 26 of the Value Added Tax Act, 2005 read with Rule 15. 9. 9. For ready reference, Section 26 of the Uttarakhand Value Added Tax Act, 2005 and Rule 15 of the Uttarakhand Value Added Tax Rules, 2005 read as under:- “SECTION 26: Assessment of unregistered person liable to tax The Assessing Authority, upon information which has come to his possession, is satisfied that any person who is liable to pay tax under this Act in respect of any period has failed to get himself registered, he shall, before expiry of three years following the end of the relevant financial year, proceed to assess the person to the best of his judgment as to the amount of tax due from such person in respect of such period and all subsequent periods and shall direct him further to pay, by way of penalty, a sum equal to the amount of tax found due as a result of such assessment : Provided that no such assessment shall be made without giving the dealer a reasonable opportunity of being heard. Explanation:- For the purposes of this section, a dealer shall be deemed to have failed to apply for registration, if he makes an incomplete application for registration or having made an application for registration, fails to comply with any direction given to him by the Assessing Authority within the time specified by it. Rule 15: Determination of turnover relating to the Transfer of Right to use Goods- (1) The tax under clause (a) of sub-section (5) of section 4 on the turnover relating to business of transfer of the right to use any goods for any purpose shall be computed on the net turnover. (2) For the purpose of determining the net turnover the following amounts shall be deducted from the total amount receive or receivable by dealer:- (a) the amount representing the sale value of the goods covered by Sections 3; Section 4 and Section 5 of the Central Sales Tax Act, 1956; (b) the amount representing the value of the goods exempted under any of the provisions of the Act; and (c) the amount received as penalty for default in payment or as damages for ay loss or damage caused to the goods by the person to whom such transfer was made. Explanation.- for the purposes of this rule, gross turnover means the total amount received or receivable by a dealer in an assessment year as valuable consideration for the transfer of the right to use the goods whether such transfer was agreed to during that assessment year or earlier.” 10. The Assessing Officer framed the assessment and imposed the tax liability of Rs. 42,023/0-, Rs. 45,426- 12 and Rs. 48,913-24 payable @ 4% interest on 6th December, 2010. Thereafter, on Appeals, the Joint Commissioner, vide common judgment dated 27th August, 2011, allowed the appeals and held that giving of the bus on lease to the Uttarakhand Transport Corporation by the assessee did not fall within the ambit of transfer of right to use as there had been no effective control of the Uttarakhand Transport Corporation on the bus of the revisionist. The Revenue’s Appeals have been allowed by the Tribunal. The Tribunal, while referring to Rule 15, which prescribes for the determination of turnover relating to the transfer of right to use goods, made it clear that the tax under Section 4(5)(a) shall be computed on the net turnover. The Tribunal referred to the definition of taxable quantum as defined in Section 3(7) and held that as per Section 2(48), taxable turnover means the turnover determined after making such deductions as may be prescribed. For determining the net turnover, Rule 15(2) prescribes the amount, which can be deducted from the total amount received by a dealer, and it includes (a) the amount representing the sale value of the goods covered by Sections 3, 4 & 5 of the Central Sales Tax Act, 1956; (b) the amount representing the value of the goods exempted under any of the provisions of the Act and; (c) the amount received as penalty for default in payment or as damages for any loss or damages caused to the goods by the person to whom such transfer was made, and as per the Explanation, the gross turnover meant the total amount received or receivable by a dealer in an assessment year as valueable consideration for the transfer of the right to use the goods whether such transfer was agreed to during that assessment year or earlier. 11. 11. Keeping in view the above provisions of Rule 15, the Tribunal held that the total amount received by the assessee in lieu of the transfer of right to use the bus, was taxable as this amount was more than Rs. 5 Lacs under Section 3(7). The case of the revisionist was covered under the category of ‘transfer of right to use goods’ under Section 4(5)(a), which reads as under:- “Section 4 Rate of Tax- (5) Every dealer shall pay a tax on the net turnover, determined in the prescribed manner, in respect of- (a) transfer of the right to use any goods for any purpose (whether or not for a specified period) at the rate of four percent; and” 12. The Tribunal further held that the order passed by the Joint Commissioner (Appeals) holding that the amounts so received by the assessee in lieu of transfer of right to use her bus is not taxable was set aside. 13. Counsel for the revisionist has referred to the State of Andhra Pradesh vs. Rashtriya Ispat Nigam Limited AIR 2002 SC 1305 and argued that the ratio of this judgment is applicable to the facts of the present case. In that case, the amount realized as hire charges for lending machinery was examined by the Supreme Court. The Supreme Court held that the Contractor, who had been given the machinery for using it, was responsible for the custody of the machinery when it was on the site. However, the Contractor was not free to use the machinery for other work or move it out. The transaction did not involve the transfer if right to use the machinery in favour of the Contractor and, hence, the levy of tax on hire charges was held to be illegal. 14. However, the Contractor was not free to use the machinery for other work or move it out. The transaction did not involve the transfer if right to use the machinery in favour of the Contractor and, hence, the levy of tax on hire charges was held to be illegal. 14. Recently, the Supreme Court in the case of K.P. Mozika vs. Oil and Natural Gas Corporation Ltd. and others 2024 SCC OnLine SC 28, while examining the case of Assam General Sales tax Act, 1993 and the Assam Value Added Tax Act,2003, in the case of an assessee, who had agreed to provide different categories of motor vehicles, such as trucks, trailors, tankers, buses, scrapping winch chasis, and cranes, to the Oil and Natural Gas Corporation Limited to deliver its petroleum products, also examined the question whether hiring these motor vehicles / cranes, there was transfer of the right to use any goods and if there was a transfer of the right to use the goods, will it amount to a sale in terms of Clause (29A)(d) of Article 366 of the Constitution of India. After going through the salient features of the contract, the Supreme Court held that it was apparent that there was no intention to transfer the use of any particular tank truck in favour of ONGC. The contract was to provide tank trucks for the transportation of goods. Once the tank trucks provided by the contractor were loaded with goods, the entire responsibility of their safe transit, including avoiding contamination, delivery, and unloading at the destination, was of the contractor. It was impossible to conclude that there was a transfer of the right to use tank trucks in favour of IOCL. The contract was to provide the service of transporting the goods using tank trucks to IOCL. 15. The Supreme Court, therein, referred to Section 65(105)(zzzzj) of the Finance Act, which came into force with effect from May 16, 2008, which reads as under:- “65. The contract was to provide the service of transporting the goods using tank trucks to IOCL. 15. The Supreme Court, therein, referred to Section 65(105)(zzzzj) of the Finance Act, which came into force with effect from May 16, 2008, which reads as under:- “65. Definitions.-(1)… (105) ‘Taxable service’ means any service provided or to be provided- (a) … (zzzzj) to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances.” It provides that “taxable service” means any service provided to any person by any other person in relation to the supply of tangible goods, including machinery, equipment and appliances for use without transferring the right of possession and effective control of such machinery, equipment and appliances.” 16. Thereafter, in Paragraph-42, the Supreme Court observed as under:- “42. Essentially, the transfer of the right to use will involve not only possession, which may be granted at some stage (after execution of the contract), but also the control of the goods by the user. When the substantial control remains with the contractor and is not handed over to the user, there is no transfer of the right to use the vehicles, cranes, tankers, etc. Whenever there is no such control on the goods vested in the person to whom the supply is made, the transaction will be of rendering service within the meaning of section 65(105) (zzzzj) of the Finance Act after the said provision came into force.” 17. In the above case, the Supreme Court had also referred to the case of State of Andhra Pradesh vs. Rashtriya Ispat Nigam Limited (supra). The Supreme Court allowed the appeals of the assessees by holding that the contracts were not covered by the relevant provisions of the Sales Tax Act and of the VAT Act, as the contracts did not provide for the transfer of the right to use the goods made available to the person, who was allowed to use the same. The assesse had only entered into a contract to transfer the goods and there was no transfer of the right to use the vehicle, tankers etc. 18. The assesse had only entered into a contract to transfer the goods and there was no transfer of the right to use the vehicle, tankers etc. 18. Counsel for the respondent has not been able to site any judgment, which has laid down that if any vehicle is given on rent by a contractor, it would amount to right to use the vehicle and it would amount to transfer of right to use the vehicle, which would be taxable. 19. The revisions are being allowed. The common order dated 13.09.2012 passed by the learned Commercial Tax Tribunal with respect to all the relevant three assessment years 2007-08, 2008-09 and 2009-10 is being set aside. 20. Keeping in view the above said judgments, the Tribunal was not justified in treating the transactions in question as ‘deemed sale’ as transfer of right to use within the provisions of Section 2(40) of the Value Added Tax Act, 2005. Since the above said transaction was not taxable, there was no question that the deduction on account of salary of driver, cleaner and cost of diesel and lubricants was not deductible from the gross turnover received from the Uttarakhand Transport Corporation. Since this amount was itself not taxable the finding given by the Tribunal that the above said salary could not be deducted is also liable to be set aside and the common judgment and order dated 27th August, 2011 passed by the Joint Commissioner (Appeal-II), Commercial Tax, Dehradun is upheld.