M/S. RAINBOW COLOUR LAB AND ANR.

THE STATE OF MADHYA PRADESH

FEBRUARY 2, 2C(,'Q

[S.P. BHARUCHA AND N. SANTOSH HEGDE, JJ.)

!vladhya Prade.1h General Sales Tax Act, s.2(n) r/w Constitution of India, Article 366 (29-A) (b}--Whether job done by photographers in taking C photographs and printing films amounted to 'works contract' and turnover from such work would be exigible to sales tax-Held, no; it is only in the nature of a service contract not involving any sale of goods.

Prior to the 46th Amendmt:nt of the Constitution, the question whether the job of taking photographs and printing films amounted to D works contract and therefore sale under the Madhya Pradesh General

Sales Tax Act ('Act') stood settled in favour of the assessees. Co11sequent upon the amendment to the definition of sale in Article 366 (29A) (b) of the Constitution of India, and S.2(n) of the Act, the respondent issued a circular on January 25, 1992 opining that the job done by the photog raphers amounted to ''works contrad" and turnover from such work would E be exigible to the levy of sales-tax. This prompted issue of show cause notices to the appellants for reasse.ssing their turnover.

The writ petition filed by the appellants challenging the show cause notices was dismissed by the M.P. lfligh Court relying on the judgment of F this Court in Builders Association of India v. Union of India, [1989] STC

370. The High Court held that, to the extent of the photo paper used in the printing of positive prints by the appellants in their work, there was a transfer of property in goods and was, to that extent, a "works contract" as contemplated under Article 366(2A)(b) of the Constitution and as G incorporated in Section 2(n) of the Act.

Allowing the appeal, this Court

HELD : 1.1. The work done by the photographer was only in the nature of a service contract not involving any sale of goods. The stand H taken by the respondent-State could not be sustained. [600-DE]

RAINBOW COLOUR IAB. v. STATE [SANTOSH HEGDE, J.J 595

1.2. Unless there was sale and purchase of goods, either in fact or A deemed, and which sale was primarily intended and not incidental to the contract, the State could not impose sales-tax on a works contract simpliciter in the BUise of the expanded definition found in Article 366(29

A) (b) read with Section 2(n) of the Act. (600-CD]

B Assistant Sales Tax Officer v. B.C. Kame, (1977] 39 STC 237, relied

on.

Builders Association of India v. Union of India, (1989] STC 370; State of Madras v. Gannon Dunkerley, (19S8) 9 STC 3S3; Hindustan Aeronautics Ltd. v. State of Kamataka, (1984) SS STC 314 and Everest Copiers v. State C of Tamil Nadu, (1996) 103 STC 360, referred to.

Bavens v. Union of India, (199S) 97 STC 161 (Ker), affirmed.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5350-51 D of 1997 Etc.

From the Judgment and Order dated 20.12.96 of the Madhya Pradesh High Court in W.P. No. 2502/95 and M.P. No. 981 of 1993.

Shanti Bhushan, B. Sen, D.A. Dave, Guiab C. Gupta, Harish N. Salve E and Joseph Vellapally, Shiv Sagar Tiwari, Prakash Shrivastava, Rabindra Singh, Sakesh Kumar, Satish K. Agnihotri and Ms. Pratibha Jain for the appearing parties.

The Judgment of the Court was delivered by F

SANTOSH HEGDE, J. Common questions involved in these appeals are whether the job rendered by a photographer in taking photographs, developing and printing films would amount to a 'works contract' as contt:mplated under Article 366(2A)(b) of the Constitution read with Section 2(n) of the M.P. General Sales Tax for the purpose of levy of sali:s G tax on business turnowr of the photographers.

Prior to the 46th Constitutional Amendmt:nt, this question was settled in favour of the assessees by the judgment of this Court in the case of Assistant Sales Tax Officer & Ors. v. B.C. Kame, (1977) 39 STC 237.

A Taking advantage of the 46th Amendment of the Constitution and the consequent amendment to the definition of 'sale' in Section 2(n) of the local Sales Tax Act, the Commissioner of Sales Tax, M.P. issued Circular dated 25.1.1992 opining that the job done by the photographers amounted to "works contract" and turnover from such work would be e:xigible to the B levy of sales-tax .. This Circular prompted the concerned Assessing Officers

to re-assess the turnover of the assessees and to issue them demand notices.

Aggrieved assi.:ssees filed writ petition before the M.P. High Court primarily contending that the work done by them is only a service contract, out of their skill and labour and there was no element of sale involved in C their work, hence their turnover was outside the levy of sales-tax.

The High Court, however, relying on the judgment of this Court in Builders Association of India & Ors. v. Union of India & Ors., (1989) 73 STC 370, held that, to . the extent of the photo paper used in the printing of positive prints by the appellants in their work, there is a transfer of D property in goods. Therefore, to this extent, the job done by the appellants become a ''works contract" as contemplated under Article 366(2A)(b) of the Constitution and as incorporated in Section 2(n) of the State Act.

This declaration of law is challenged before us in these appeals.

On facts, then: is no dispute before us in n:gard 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 custome'"s, develop the negatives and supply the prints. They also develop the films brought by the customers, make positive prints thereof and supply the F 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.

G In this background, we will now examine the question arising in these appeals.

This Court in Kame's case (supra) while considering the facts of a similar case held : " .... When a photographer like the respondent under- H takes to take photograph, develop the negative, or do other photographic

RAINBOW COLOt:R LAB. v. STATE :sA.'lTOSH HEGOE, J.J 597

work and thereafter supply the prints to his client, he cannot be said to A 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 insofar as he sells the goods purchased by him, in our opinion, is essentially one of skill and labour. xxxxxxx

We, therefore, find no cogent ground to disagree with the High Court insofar as it has decided against the revenue and has held the contract to be one for work and labour.''

Since this was a judgment rendered prior to the coming into force of C the 46th Constitutional Amendmt:nt, we will have to consider whether the said Amendment has brought about any change so as to doubt the legal position enunciated in the above case. It is true that by the 46th Constitutional Amendment by incorporating Clause 29-A(b) in Article 366, the definition of the words "sale" and "works contracf have been enlarged. The D State of Madhya Pradesh has also brought about a consequent change in the definition of the word 'sale' in Section 2(n) of its Sales Tax Act but it is to be noticed that in the said State Act the exprnssion 'works contract' has not been &pecifically defined.

Prior to the Amendment of Article 366, in view of the judgment of E this Court in State of Madras v. Gannon Dunkerley & Co., (1958) 9 STC 353, the States could not levy sales-tax on sale of goods involved in a works contract because the contract was indivisible. All that has happened in law after the 46th Amendment and the judgment of this Court in Builders' case

(supra) is that it is now open to the Staks to divide the works contract into two separate contracts by lt:gal fiction (i) contract for salt: of goods F involved in the said works contract and (ii) for supply of labour and service.

This division of contract under the amended law can be made only if the works contract involved a dominant intention to transfer the property in goods and not in contracts where the transfer in propcrty takes place as an incident of contract of service. The Amendment, referred to above, has G not empowered the State to indulge in microscopic division of contracts involving the value of materials used incidentally in such contracts. What is pertim:nt to asct:rtain 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. State is not empowered by lhe amended law to impose H

598 SUPREME COt:RT REPORTS

[2000] 1 S.C.R.

A sales-tax on such incidental materials used in such contracts. This is clear from the judgment of this Court in Hindustan Aeronauties Ltd. v. State of Kamataka, (1984) 55 STC 314 at 322, where it was held thus:

" ......... Men: passing of property in an article or commodity during the course of performance of the transaction in question does not B render the transaction to be transaction of sale. Even in a contract purely of work or service, it is possible that articles may have to be use by the person executing the work, and property in such articles or materials may pass to the other party. That would not necessll.ri!y convert the contract into one of sale of those materials.

C 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.. .. "

The judgment in the above 1; ase was quoted with approval by this Court in the case of Everest Copiers v. State of Tamil Nadu, (1996) 103 STC D 360, (to which judgment one of us - Hon. Bharucha, J. - was a party) wherein it was stated :

"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 contact 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 tins 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."

In Bavens v. Union of India & Ors., (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 H supplies positive prints in the desired 1.ize to the customer, the photog-

RAl~BOW COLOUR LAB. v. STATE [SANTOSH HEGDE, J.] 599

rapher uses his own camera and his own film. The negative which is A subjected to further processing belongs to the photographer and not to the customer. No basic goods are providt:d 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." We arc in agreement with the vit:w taken by the Kerala High Court in the above case.

The reliance placed by the High Court in Builder's case (supra) is misplaced. Though this Court in the said case held that by the 46th Amendment to the Constitution, the dt:finition of the t:xpression "tax on

the sale or purchase of goods'' stood enlarged, it also held that the 46th Amendment does no more than making it possible for the States to levy E sales-tax on the price of goods and materials used in the 'works contract' as if there was a sale of such goods and materials. The Court also observed :

'We are surprised at the attitude of the States which have put F forward the plea that on the passing of the 46th Amendment the Constitution had conferred on the States a larger freedom than what they had before in regard to their power to levy sales tax under entry 54 of the State List. The 46th Amendment does no more than making it possible for the States to levy sales tax on the price of goods and materials used in works contracts as if there G was a sale of such goods and materials. We do not accept the argument that sub-clause (b) of article 366(29-A) should be read as being equivalent to a separate entry in List II of the Seventh Schedule to the Constitution enabling the States to levy tax on sales and purchases independent of entry 54 thereof. As the Constitution H

6CO

exists today the powi:r of the State to levy taxes on sales and purchases of goods including the 'deemed" sales and purchases of goods under clause (29-A) of Article 366 is to be found only in entry 54 and not outside it. We may recapitulate here the observaticns of the Constitution Bench in the case of Bengal Immunity Co. Ltd. (1955) 6 STC 446; [19551 2 SCR 603, in which this Court has held that the operative provisions of the several parts of Article 286 which imposes restrictions on the levy of sales tax by the States are intended to deal with different topics, and one could not be projected or read into another and each one of them has to be obeyed while any sale er purchase is taxed under entry 54 of the State List."

Thus, it is clear that unless there is sale and purchase of goods, either in fact or deemed, and which saJe is primarily intended and not incidental to the contract the State calllllot impose sales-tax on a works contract simpliciter in tht guise of the expanded definition found in Article 366(29- D A)(b) read with Section 2(n) of the State Act. On facts as we have noticed that the work done by the photographer which as held by this Court in Kame's case (supra), is only in the natun: of a service contract not involving any sale of goods, we are of the opinion that the stand taken by the respondent-State cannot be sustained.

E For the reasons stated above, we are of the opinion that the view taken by the Division Bench of the Madhya Pradesh High Court in the impugned judgment cannot be sustained. Hence, we allow these appeals, setting aside the judgment under appeal and grant the prayer of the appellants by quashing the assessment orders and the demand notices F impugned in the writ petitions before the High Court. No costs.

SLP (C) Nos. 18089-90197 :

Leave granted.

Following the judgment of thi~ Court in CA Nos. 5350-5L'97 etc. these appeals are also allowt; d. No costs.

S.M.

Appeals allowed.