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TMI Blog1976 (12) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... SWANT SINGH JJ. I.N. Shroff, Advocate, for the appellants. S.V. Gupte, Senior Advocate (J.D. Jain, Miss Kanwaljit Miglani and Balram Sangal, Advocates, with him), for the respondent. -------------------------------------------------- The judgment of the Court was delivered by KHANNA, J. -Whether sales tax is payable by a photographer under the Madhya Pradesh General Sales Tax Act (Act 2 of 1959), when the photographer takes photographs or does other photographic work and thereafter supplies the photographic prints to his client or customer is the question which arises for determination in this appeal on certificate against the judgment of the Madhya Pradesh High Court reported in 28 S.T.C. 1 B.C. Kame v. Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rest Rs. 23,000 being taken to be the receipts on account of the supply of photoprints to those who got themselves photographed at the studios. The respondent filed writ petition to challenge the levy of sales tax on the last item, namely, the item for the supply of photoprints. The contention of the respondent was that in taking a photograph, preparing its negative and thereafter the final positive print for supplying the same to the client, the respondent undertakes a contract of work and labour and does not enter into a sale transaction. It was also stated on behalf of the respondent that the prepared positive print was not a marketable commodity and he could not sell the photograph of one person to any other person except with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As against that, Mr. Gupte on behalf of the respondent has canvassed for the correctness of the view taken by the High Court. The question as to whether a contract is a contract of work and labour or a contract for sale is not one free from difficulty. The reason for that is that in border line cases the distinction between the two types of contract is very fine. This is particularly so when the contract is a composite one involving both a contract of work and labour and a contract of sale. Nevertheless, the distinction between the two rests on a clear principle. A contract of sale is one whose main object is the transfer of property in, and the delivery of the possession of, a chattel as a chattal to the buyer. Where the principal obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the transaction was essentially one and indivisible, namely, one of receiving a customer in the hotel to stay. It was essentially one of service by the hotelier in the performance of which, and as part of the amenities incidental to the service, the hotelier served meals at stated hours. The revenue, it was held, was not entitled to split up the transaction into two parts, one of service and the other of sale of foodstuffs. This court accordingly came to the conclusion that there was no sale of foodstuffs and the respondent- company was not liable to pay sales tax in respect of the meals served to the guests in the hotel. In arriving at this conclusion, this court observed as under: "Thus, in considering whether a transaction falls with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance in the above cited case was placed upon an earlier decision of this Court in the case of State of Madras v. Gannon Dunkerley Co. (Madras) Ltd.[1958] 9 S.T.C. 353 (S.C.)., wherein the Constitution Bench of this Court held that in a building contract the property in materials used does not pass to the other party to the contract as movable property. It would so pass if that be the agreement between the parties. But if there was no such agreement and the contract was only to construct a building, then the materials used therein would, in the opinion of the Court, become the property of the other party to the contract only on the theory of accretion. The distinction between a contract of sale and a contract for skill and labour has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we may now turn to the facts of the present case. 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. A good photograph reveals not only the aesthetic sense and artistic faculty of the photographer, but it also reflects his skill and labour. A good photograph in most cases is indeed a thing of beauty. It not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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