Sri J. Anil Kumar, learned Special Standing Counsel for Commercial Taxes, would submit that there is a transfer of the right to use the goods attracting levy of tax under Section 5-E of the A.P.G.S.T. Act and Section 4(8) of the A.P.VAT Act. The fact, however, remains that this Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, would not undertake the task of assessment or substitute its view for that of the assessing authority. The contentions put forth by the petitioner, in their reply to the show cause notice, ought to have been considered by the assessing authority before passing the order of assessment. While the question whether such contentions, urged in the reply, necessitates acceptance or not is for the assessing authority to decide, he ought to have dealt with the said contentions, and should have recorded his conclusion on whether the aforesaid clauses justified the petitioner’s contention that there was no transfer of the right to use the goods. As the assessing authority has failed to examine the aforesaid clauses in the agreement, and to deal with the petitioner’s contention that these clauses show that there is no transfer of the right to use the goods, we are satisfied that the assessment order necessitates being set aside, and the assessing authority should be directed to re-do the assessment after dealing with the aforesaid contentions urged by the petitioner.
