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TMI Blog1962 (11) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... t the end of the year. The Deputy Commercial Tax Officer assessed him to sales tax on a turnover of Rs. 14,916-12. On appeal to the Appellate Assistant Commissioner the assessment was set aside. He held that the appellant was not "a dealer" and that his transactions were not sales within the meaning of the Madras General Sales Tax Act, 1939. The Board of Revenue, acting in exercise of its revisional power, set aside the order of the Appellate Assistant Commissioner after due notice to the appellant. The Board restored the assessment of the Deputy Commercial Tax Officer. In the view of the Board the appellant sold the pictures for a price and the Act was therefore applicable. It is not clear whether the Board treated the appellant as a "deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... primary question, therefore, in this case would be whether these transactions constitute sales within the meaning of the Act. If they are not sales the turnover of these transactions cannot be taxed. If they are sales the appellant must be held to be a dealer, as he, indisputably, carried on such transactions in the course of his occupation or career. We shall therefore proceed to consider the real nature of the activities of the appellant with reference to the pictures drawn by him. "Sale" is defined under the Act as follows: "Sale with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for work and labour. The distinction is often a fine one. A contract of sale is a contract whose main object is the transfer of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour." In Clay v. Yates25 L.J. Ex. 237; 1 H. and N. 73.', the contract was that the plaintiff, a printer, should print for the defendant a second edition of his book, the plaintiff to find the materials including the paper. It was held that this was not a contract for the sale of a thing to be delivered at a future time nor a contract for making a thing to be sold when compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1893. It was held that the plaintiff was entitled to succeed because as the contract in substance was for the exercise of skill, and as materials would have passed from the plaintiff to the defendant only as incidental to that skill the contract was not a contract for the sale of goods but one for work and labour and materials supplied, and therefore section 4 did not apply. The basis of the decision is to be found in the following words of Greer, L.J., at page 939: "If you find, as the Court did in Lee v. Griffin1 B. and S. 278., that the substance of the contract was a contract to produce something to be sold by the dentist to the dentist's customer, then that is a sale of goods. But if, on the other hand, the substance of the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orth above, we have no doubt that in the present case, the transactions of the appellant were not, even in any remote sense, sales under the Act. In a similar case reported in D.P. Roy Chowdhury v. State of Madras, Veeraswami, J., held that the person concerned was not a dealer under the Act. The petitioner in that case was a sculptor and artist, who supplied two bronze casts to two State Governments at a cost of Rs. 60,000 and Rs. 41,000 respectively. The learned judge held that the casts were made not for purposes of sale in open market but to please and satisfy his admirers. It was clear in that case that the assessee was not a sculptor by profession. That decision turned upon the question whether the assessee was a dealer or not. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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