Rajasthan High Court - Jaipur
Commercial Taxes Officer, ... vs Rajasthan Taxation Tribunal And Anr. on 13 March, 2001
Equivalent citations: [2001]124STC257(RAJ), 2001(3)WLC183, 2002(1)WLN222
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT Rajesh Balia, J.
1. These three writ petitions are filed by the Commercial Taxes Officer challenging the order passed by the Rajasthan Tax Board, Ajmer, dated February 23, 1996, in respect of a common judgment delivered in three appeals arising out of three separate assessments for different periods against the same dealer Spectrum Colour Lab Pvt. Ltd.
2. The actual nature of work done by the respondent-dealer, about which, there is no dispute is that they develop the films brought by the customers, make positive prints thereof and supply the positive prints and return the negative films back to the customers and they also undertake the work of enlarging the photo prints of different sizes.
3. The case of the Revenue is that during the course of survey by the Commercial Taxes Officer on July 12, 1986, it was found that dealer has used chemicals and photographic papers costing Rs. 48,89,613.89 in the course of his business during April 1, 1986 to March 31, 1989 and has received through job-work a sum of Rs. 83,15,927.55 which included transfer of property in goods in the aforesaid chemicals and photographic papers to its customers which were involved in execution of work for them. On these premises, after taking recourse to Section 12 of the Rajasthan Sales Tax Act, 1954 reassessments was made for the aforesaid period and tax was assessed on Rs. 5,94,912.40 additional surcharge on which was computed at Rs. 51,922.96 and considering the evasion of tax on transfer of property goods costing Rs. 48,49,613 penalty under Section 16(1)(i) was also imposed, Further interest under Section 11-B was also levied.
4. On the aforesaid premise regular assessments for April 1, 1989 to March 31, 1990 and for April 1, 1990 to March 31, 1991 were also made under Section 10(3), raising demand on account of tax, surcharge, interest and levied penalty under Section 7-AA.
5. Appeals against all the three orders before the Deputy Commissioner (Appeals) were unsuccessful.
6. Hence three appeals were preferred before the Rajasthan Tax Board by the dealer. The Board partly accepted the appeals of the assessee. It upheld the tax liability on the value of paper. We were of the view that transfer of property in paper took place in execution of works contract to therefor whom the said development of reel was made and positive prints were made available to the assessee and on the cost of paper involved in enlargement of negatives. However, it accepted the case of assessee in respect of cost of chemicals, which were merely consumed in processing of the films and property in which did not pass to the consumer in any form.
7. Against the order of Rajasthan Tax Board deciding the three appeals by a common judgment dated February 23, 1996, the three revision petition Nos. 48, 49 and 51 of 1996 were preferred by the dealer before the Rajasthan Taxation Tribunal, who by its order dated April 25, 1997, accepted the contention of the assessee that the work undertaken by the petitioner for developing the negatives and taking out the prints from negatives on receipt of job charges and delivering it, to the customer, was not a "works contract" but merely a service contract, therefore, no tax was exigible on such transaction of service contract. The Tribunal, while relying on the decision of Supreme Court in Assistant Sales Tax Officer v. B.C. Kame [1977] 39 STC 237, Everest Copiers v. State of Tamil Nadu [1996] 103 STC 360, Hindustan Aeronautics Ltd. v. State of Karnataka [1984] 55 STC 314 and Builders Association of India v. Union of India [1989] 73 STC 370 and the decision of the West Bengal Taxation Tribunal rendered in Studio Kamalalaya v. Commercial Tax Officer [1993] 89 STC 307, agreed with the aforesaid contention and allowed the appeal of the assessee and set aside the demands which were raised by considering the cost of photo papers as taxable turnover by treating it to be a case of transfer of property in goods involved in the execution of works contract.
8. Heard learned counsel for the parties.
9. It has been contended by the learned counsel for the Revenue that there may be three types of cases in which supply of prints may come as a final end of the activity in existence. One is the case, in which a person himself takes photograph, develops the negative, and supplies positive prints in desired sizes to the customer. Second case may be developing the films brought by the customers and to make positive prints and supply the same along with the negative films to the customers. Yet, third type of cases may be in which the developed film is given to the dealer either for taking of enlarge prints or the required prints of already developed negatives.
10. He contends that while first type of activity can be considered to be an activity of service contract only because in such cases passing of the prints on the paper used in taking out the prints from the negatives may only be considered to be incidental of service contract ; but in latter two types of cases it continues to remain a works contract and no amount of service is involved. For this proposition, he relies on decision of the Kerala High Court in Bavens v. Union of India [1995] 97 STC 161. He further contends that the decision of Kerala High Court making out this distinction has since been approved by the Supreme Court in [2000] 118 STC 9 ; (2000) 2 SCC 385 (Rainbow Colour Lab v. State of Madhya Pradesh).
11. On the other hand, Mr. Mehta, learned counsel for the respondent-dealer urges that the Tribunal has rightly decided the case in favour of the assessee and contends by relying on the principle laid in the judgments referred above that it is only such a case of transfer of property in goods whether in same form or other form can be considered to be a case of works contract, if the main object of the work undertaken by the person to whom the price is paid, is the transfer of goods in such property or in any other property, otherwise it remains a contract of work and labour. He further contends that issue now stand concluded by the decision of the Supreme Court in Rainbow Colour Lab's case [2000] 118 STC 9 ; (2000) 2 SCC 385 in favour of the assessee and the distinction pointed out by the learned counsel for the petitioner in the three types of services rendered by the developments of positive prints engaged in the business of running colour labs or photo labs remains a difference without distinction. The activity remains an activity of service and not an activity of sale of goods, in either class of cases.
12. We have given our careful consideration to rival contention and we are of the opinion that as far as the question of nature of activity carried on, at the photo labs, are concerned which are engaged in the business of developing the prints and supplying the same to the customers whether as photographers and developers or as developers only stand concluded by the decision of the Supreme Court in Rainbow Colour Lab case [2000] 118 STC 9 ; 2000 (2) SCC 385. Undoubtedly, it is true that in Bavens case [1995] 97 STC 161 the honourable Kerala High Court has drawn the distinction between the three types of activities undertaken by a photographer or a developer. One is of a photographer and developer and others are only a developer. However with respect we regret our inability to agree, in view of the principle enunciated by the apex Court in Hindustan Aeronautics Ltd. case [1984] 55 STC 314 and Everest Copiers case [1996] 103 STC 360 which has been approved and reiterated in Rainbow Colour Lab case [2000] 118 STC 9 (SC) ; (2000) 2 SCC 385 that unless there is sale and purchase of goods, either in fact or deemed and, such sale is primarily intended and not incidental to the contract, the State cannot impose sales tax on a works contract simpliciter in the guise of the expanded definition found in Article 466(29A)(b) read with Section 2(n) of the Madhya Pradesh General Sales Tax Act, 1958. While approving this principle initially in earlier cases including in Bavens case [1995] 97 STC 161 (Ker) we do not find any evidence in the judgment of Rainbow Colour Lab's case [2000] 118 STC 9 ; (2000) 2 SCC 385 that the apex Court has also approved the distinction in principle as has been drawn by the Kerala High Court in Bavens Judgment [1995] 97 STC 161.
13. In fact the principle was first enunciated in the case of a photographic work that it is essentially one of skill, labour and not the case of work contract in Kame's case [1977] 39 STC 237 (SC). In that case, the court categorically said :
"When a photographer like the respondent undertakes to take photograph, develop the negative, or do other photographic work and thereafter supply the prints to his client, he cannot be said to enter into a contract for sale of goods. The contract on the contrary is for use of skill and labour by the photographer to bring about a desired result. The occupation of a photographer, except in so far as he sells the goods purchased by him, in our opinion, is essentially one of skill and labour."
14. The facts before the Supreme Court in Rainbow Colour Lab case [2000] 118 STC 9 ; (2000) 2 SCC 385 after about 23 years of Kame's case [1977] 39 STC 237, in which, were almost same as in Baven's case [1995] 97 STC 161 (Ker) where the dealer was not engaged in developing the prints merely as a photographer but also carrying on business as a developer. The case arose in the facts and circumstances as noticed by the court :
"On facts, there is no dispute before us in regard to the actual nature of work done by the appellants, i.e., in the course of their business. The appellants take photographs of the objects desired by their customers, develop the negatives and supply the prints. They also develop the films brought by the customers, make positive prints thereof and supply the positive prints and return the negative films back to the customers. In some of the cases, it is possible that the appellants may undertake the work of enlarging the photo prints also. It is also of common knowledge that the photo prints supplied by them to their customers are not marketable commodities and as goods they have no value."
15. With these facts of the case, the court reiterated the aforesaid principle in Kame's case [1977] 39 STC 237 (SC) and said unequivocally that on facts as we have noticed that the work done by the photographer which is held by the Kame's case [1977] 39 STC 237 (SC) is not only the nature of service contract but does not involve any sale of goods, we are of the opinion that the stand taken by the respondent cannot be sustained.
16. In coming to this conclusion the court referred to the decision of the court in the case of Hindustan Aeronautics Ltd. v. State of Karnataka [1984] 55 STC 314 (SC) and Everest Copiers v. State of Tamil Nadu [1996] 103 STC 360 (SC).
17. The principle enunciated in Hindustan Aeronautics case [1984] 55 STC 314 (SC) was that "Mere passing of property in an article or commodity during the course of performance of the transaction in question does not render the transaction to be a transaction of sale. Even in a contract purely of work or service, it is possible that articles may have to be used by the person executing the work, and property in such articles or materials may pass to the other party. That would not necessarily convert the contract into one of sale of those materials. In every case, the court would have to find out what was the primary object of the transaction and the intention of the parties while entering into it. In this context we would like to refer such amendments in Article 466 which reads thus :
................."
After quoting the Clause (29A) of Article 466 the court said :
"The amendment referred to above has not empowered the State to indulge in a microscopic division of contracts involving the value of materials used incidentally in such contracts. What is pertinent to ascertain in this connection is what was the dominant intention of the contract. Every contract, be it a service contract or otherwise, may involve the use of some material or the other in execution of the said contract. The State is not empowered by the amended law to impose sales tax on such incidental materials used in such contracts."
18. Thus the dominant intention behind the transaction was held to be decisive in determining whether it is a contract of sale of goods involved no execution of works contract, or transfer of property in goods is only incidental to a contract of service or of work and labour but not of sale.
19. More close at home, is the decision in the Everest Copier's case [1996] 103 STC 360 (SC). It was a case in which the main object of the work undertaken by a photocopier to develop or make a xerox copy of the document which was supplied by the customer and in the process use of bare paper was involved. The court on like question raised in connection with the nature of business carried on by a photocopier held :
"Where the main object of the work undertaken by the person to whom the price is paid is not the transfer of a chattel as a chattel, the contract is one of work and labour.
The main object of the work undertaken by the operator of a photocopier or xerox machine is not the transfer of the paper upon which the copy is produced ; it is to duplicate or make a xerox copy of the document which the payer of the price wants duplicated. The paper upon which the duplication takes place is only incidental to this transaction. The object of the payment of the price is to get the document duplicated, not to receive the paper. The payer of the price has no interest in the bare paper upon which his document is duplicated. He is interested in it only if it bears such duplication. What is involved is not a sale but a contract of work or labour."
20. Thus in the above context while referring to aforesaid principle the court in Rainbow Colour's case [2000] 118 STC 9 (SC); (2000) 2 SCC 385 referred to the following observations made by the division Bench of the Kerala High Court in Baven's case [1995] 97 STC 161 which were in consonance with the principle enunciated by the apex Court decisions and not different :
"In Bavens v. Union of India [1995] 97 STC 161 a division Bench of the Kerala High Court had taken the view that:
'Where a photographer takes a photograph of his customer, develops the negative and supplies positive prints in the desired size to the customer, the photographer uses his own camera and his own film. The negative which is subjected to further processing belongs to the photographer and not to the customer. No basic goods are provided by the customer which are subjected to processing, etc., by the photographer so as to make the contract a works contract. There is no accretion to goods or property or the nucleus of a property which originally belonged to the customer. There is no works contract involved in this category of a photographer's activity. However modernised the camera be the skill of the photographer is still important for getting the best results. It cannot also be treated as a sale of the photograph for the reason that it is not the intention of the customer to buy a photograph from the photographer. The photograph has no marketable value. What is expected from the photographer is his service, artistic skill and talent. If any property passes to the customer in the form of photographic paper, it is only incidental to the service contract. No portion of the turnover of a photographer relating to this category of work would be exigible to sales tax."
22. The court approved of above principle. However nothing was said about distinction drawn by the court with other branch of service rendered by a developer of photo reels. In our opinion the principle enunciated by the Supreme Court by quoting with the approval from Kames case [1977] 39 STC 237, Hindustan Aeronautics case [1984] 55 STC 314 and Everest Copiers case [1996] 103 STC 360 and Baven's case [1995] 97 STC 161 (Ker) and further agreeing in Kame's case [1977] 39 STC 237 (SC) in the facts noticed by the court as quoted above, leaves no room for doubt that the distinction drawn by the Kerala High Court and relied on by learned counsel for the petitioner, has not found its approval expressly or impliedly. Approval was accorded by the court, only to the principle quoted above which was in consequence of the earlier decisions of the Supreme Court, and applied those principles to the facts of the case, fully supports the conclusion drawn by the Tribunal.
23. In these circumstances, we have no hesitation in concluding that no ground for interference is made out in these petitions and same are hereby dismissed with no order as to costs.