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TMI Blog2000 (12) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax Act, 1976, held that the works done by the petitioner in taking snaps of photograph, washing the negatives and printing out the photographs is covered by the term "works contract" and as such the same is taxable under the Tripura Sales Tax Act. The petitioner challenged the aforesaid orders solely on the ground that the petitioner performed/performs artistic activities having applied his intellectual artistic skills and by his works in taking snaps of photographs and/or washing negatives and/or printing out finished photographs of any individual or group of persons are nothing but "rendering service" and not "works contract" and as such the said works of rendering service undertaken by the petitioner is not subject to payment of any tax under the Tripura Sales Tax Act, but having mis-interpreted/mis-construed the related provisions of the Tripura Sales Tax Act, the respondents passed the impugned orders imposing tax to be paid by the petitioner. 2.. The respondents filed joint counter-affidavit. Having taken the stand that the works done by the photographer in the aforesaid case is covered by the term "works contract" as defined under section 2(o)(iv) of the Tripura Sales Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntract for sale of goods. What he renders is his skill and labour to bring out a desired result of finished photograph. The honourable Supreme Court held that though the work done by the photographer is a contractual work, but not a works contract and as such is not a sale as defined under the Madhya Pradesh General Sales Tax Act. 4.. Mr. Saha, the learned counsel for the petitioner having referred the reported case in Bavens v. Union of India [1995] 97 STC 161 submits that the honourable Kerala High Court in the aforesaid case held 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 and applies his skill and there is no accretion to goods or property or the nucleus of a property which originally belonged to the customer and as such it cannot be termed as "works contract". It is further held in the said case that the photograph has no marketable value. What is expected from the photographer is his service, artistic skill and talent and as such the work undertaken by a photographer is not a works contract, but at best can be held to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under section 2(o)(iv) of the Tripura Sales Tax Act by way of fourth amendment in 1994. As quoted above, the altering, ornamenting, finishing, improving or otherwise processing or adopting of any goods is included within the fold of the term "works contract" and the learned Senior Government Advocate continues to submit that since the aforesaid provision of section 2(o) of the Tripura Sales Tax Act has not been put under challenge being ultra vires of the Constitution by the petitioner in the present writ petition, there is no scope to escape the liability by the petitioner from payment of sales tax for the photographic works undertaken by the petitioner in taking snaps, washing the negative film, developing the negative to convert in a printed finished photograph and then to deliver to his customer in exchange of price/cost. The learned Senior Government Advocate further submits that in taking snap through camera by the petitioner undoubtedly he applies his artistic skill, but thereafter the petitioner used to wash the negative, develop the negative imposing upon the blank print paper and in this way the petitioner used to produce finished product that is printed photograph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enior Government Advocate placed reliance in the case of Hindustan Shipyard Ltd. v. State of Andhra Pradesh, reported in [2000] 119 STC 533 (SC); (2000) 6 SCC 579 and continues to submit that no strait-jacket formula could be laid down to determine whether a transaction is a sale or works contract. The intention of the parties is to be ascertained on over all reading of the several terms and conditions of the contract. 10.. In Rainbow's case [2000] 118 STC 9; AIR 2000 SC 808 the honourable Supreme Court had the occasion to interpret section 2(n) of the Madhya Pradesh General Sales Tax Act. Under section 2(n) of the Madhya Pradesh General Sales Tax Act after amendment contemplates that in view of the constitutional amendment "property transferred in its original or modified or changed form in execution of a works contract is taxable", but the works contract has not been defined under the Madhya Pradesh General Sales Tax Act. But the case in hand is governed by the Tripura Sales Tax Act which itself defined what is "works contract" under section 2(o). In absence of specific definition of the "works contract" in the Madhya Pradesh General Sales Tax Act, the honourable Supreme Court r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the original goods to bring out the finished photograph and as such the entire price demanded by the photographer and realised from the customer cannot be the value of the works contract. But in the present case, as the petitioner has not splitted the total price/cost he realised showing break up of the price/cost of blank negative and/or blank printing paper and the charge for his artistic skill separately and thus the sales tax authorities, respondents herein have left with no other alternative but to impose tax on the total sale price. In case the assessee showed the break up of the price/cost of the goods used in execution of the works contract that is the film/printing paper used in printing out finished photograph is/are separately charged, then the sales tax authorities can only realise the cost of the said goods and not the amount charged for rendering artistic skill by the photographer. In the present case, both the terms "works contract" and "service contract" are applicable. So far the transfer of property in goods (negative/printing paper) is concerned, in printing out the finished photograph is a works contract, but the rendering of service having applied the artisti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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