IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 ST.Rev..No. 205 of 2004 ------------------------- [AGAINST THE ORDER OF THE SALES TAX APPELLANT TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE IN T.A. NO.162/2001 (ASSESSMENT YEAR 95-96) DATED 8.10.2002] PETITIONER/APPELLANT/ASSESSEE: --------------------------------------------------- P.A. PREMKUMAR, PROPRIETOR, FOTOMOTO, BANK ROAD, KOZHIKODE. BY ADV. SRI.K.I.MAYANKUTTY MATHER RESPONDENT: RESPONDENT/REVENUE: --------------------------------------------------------- STATE OF KERALA, REPRESENTED BY DEPUTY COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM. BY SR. GOVERNMENT PLEADER, SRI.MUHAMMED RAFIQ THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L. DATTU, C.J. & A.K. BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - S.T. Rev. No. 205 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of July, 2008 Order H.L. Dattu, C. J: The Appellate Tribunal's order in T.A.No.162 of 2001 dated 8th of October 2002, for the assessment year 1995-96 is the subject matter of this revision petition. The assessee has framed the following questions of law for our consideration and consequent decision. They are as under: “ A. Is not the Tribunal in error in thinking that the assessing authority had complied with the directions contained in the remand order-- Annexure B--herein? Is not the whole proceedings impugned herein vitiated by reason of the non-compliance of the specific directions in the order of remand made by Annexure - B appellate order? B. Is not the photographic work - taking photograph, developing and printing films carried on by the assessee only a skilled labour inexigible to tax? Can this activity be termed as works contract and as a sequel assess such turnover to tax in the hands of the assessee especially in the light of the judicial pronouncements like 39 STC 237, 103 STC 360, 118 STC 9 etc?” S.T.Rev.205/04 2 Both sides were agreeing that the questions of law framed by the assessee is no more res integra, in view of the decision of this Court in the case of Johny Joseph v. State of Kerala in S.T.Rev.No.287 of 2003 dated 14th of August 2007. In the said decision this Court has observed as under: “14. In Bharat Sanchar Nigam Ltd. vs. Union of India, the Supreme Court, at paragraphs 49 and 50 has observed as under: “49. This conclusion was doubted in Associated Cement Companies Ltd. vs. Commissioner of Customs (2001) 4 SCC 593 saying: “ The conclusion arrived at in Rainbow Colour Lab Case (2000)2 SCC 385) in our opinion, runs counter to the express provision contained in Article 366 (29A) as also of the Constitution Bench decision of this Court in Builders' Assn. of India vs. Union of India (1989) 2 SCC 645”. 50. We agree. After the 46th amendment, the sale elements of those contracts which are covered by the six sub clauses of clause (29A) of Article S.T.Rev.205/04 3 366 are separable and may be subjected to sales tax by the States under entry 54 of List II and there is no question of the dominant nature test applying. Therefore, when in 2005 C.K.Jidheesh v. Union of India, (2005) 8 SCALE 784 held that the aforesaid observations in Associated Cement were merely obiter and that Rainbow Colour Lab (2000) 2 SCC 385 was still good law, it was not correct. It is necessary to note that Associated Cement (2001) 4 SCC 593 did not say that in all cases of composite transactions the 46th Amendment would apply”. 15. In the said decision, the Supreme Court has accepted the view expressed by the Apex Court in Associated Cement's Case. While saying so, it once again reiterated that the decision rendered in Rainbow Colour Lab's Case has been subseuquently overruled by the Apex Court and therefore, the levy of tax in respect of transfer of goods involved in the execution of works contract of the nature of work undertaken by a photographer in taking photographs, developing and printing films is S.T.Rev.205/04 4 now enforceable. 16. In the instant case, the Tribunal has relied upon what was observed by the Apex Court in Associated Cement's Case and has come to the conclusion that the activity of the petitioner is in the nature of works contract and therefore liable to pay the General Sales Tax Act. 17. In our opinion, the Tribunal has correctly applied the law declared by the Apex Court and has correctly come to the conclusion that the activity of the petitioner is in the nature of the works contract and therefore exigible to tax under the Kerala General Sales Tax Act. In view of the above discussion, we are of the opinion that the orders passed by the Tribunal is in consonance with the law declared by the Apex Court in Associated Cement's case which has been confirmed by the Apex Court in Bharat Sanchar Nigam Ltd. vs. Union of India.”. S.T.Rev.205/04 5 In view of what has been stated by this Court in the aforesaid decision, the questions of law framed by the assessee requires to be answered against the assessee and in favour of the Revenue. Ordered accordingly. H.L. DATTU Chief Justice A.K. BASHEER Judge an.