2008 (4) TMI 679 - HC - VAT and Sales Tax

Whether, on the facts and in the circumstances of the case, the Tribunal is right to hold that tax is exigible for photographs as execution of works contract? Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal is perverse due to non-consideration and misconsideration of facts and law and, therefore, it is liable to be set aside for re-hearing? Held that - We answer the first question in the negative and the second question in the affirmative. We thus answer both the questions in favour of the assessee and against the Revenue.

Summary

Issues:
1. Tax liability for photographs as execution of works contract
2. Perversity of Tribunal's conclusion due to non-consideration of facts and law

Issue 1: Tax liability for photographs as execution of works contract

The petitioner, engaged in processing and developing photography, argued that the photographs produced are not marketable goods but a service provided to clients. The Sales Tax Officer assessed the petitioner as an unregistered dealer, contending the activities as works contract. The petitioner's objections were ignored, leading to an assessment of tax and penalty. The first appellate authority confirmed the tax levy but reduced the penalty. The Orissa Sales Tax Tribunal upheld the tax but deleted the penalty. The petitioner then approached the High Court, arguing that the photography work does not constitute a works contract as defined in the Orissa Sales Tax Act. The petitioner cited various judgments, including those of the Supreme Court and High Courts, supporting the view that photography services do not involve a works contract. The Revenue did not contest this argument, relying on a Supreme Court decision emphasizing the service nature of such contracts. The High Court ruled in favor of the petitioner, holding that the photography work does not fall under the purview of a works contract, thus negating the tax liability.

Issue 2: Perversity of Tribunal's conclusion due to non-consideration of facts and law

The High Court addressed the second issue regarding the alleged perversity of the Tribunal's conclusion. The petitioner contended that the Tribunal's decision was perverse due to non-consideration and misconsideration of facts and law. The petitioner argued that the Tribunal failed to appreciate the nature of the photography services provided, which led to an incorrect assessment of tax liability. The High Court, after considering the arguments presented by both parties and the precedents cited, found in favor of the petitioner. The High Court held that the Tribunal's decision was indeed perverse, and the questions raised by the petitioner were answered in the negative and affirmative, respectively. Consequently, the High Court disposed of all three revision applications in favor of the petitioner, without imposing any costs.

In conclusion, the High Court ruled in favor of the petitioner, determining that the photography services provided did not constitute a works contract, thereby negating the tax liability imposed by the Sales Tax Officer. The Court also found the Tribunal's decision to be perverse and answered the questions raised by the petitioner accordingly.