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TMI Blog1974 (1) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... give technical advice to his patients and was charging a flat rate of Rs. 10 towards his remuneration and cost of materials. The Sales Tax Officer was of the view that the turnover arising from such transactions was liable to tax under the Act. The assessee resisted the attempt of the Sales Tax Officer by taking the stand that the transactions were essentially contract of work and labour and, therefore, the turnover arising out of such transactions was not exigible to tax. Overruling the stand of the assessee, the Sales Tax Officer completed the assessment for the quarters ending 30th September, 1962, to 30th June, 1963. The Appellate Assistant Commissioner was satisfied that liability under the Act keeping the extent of turnover in view could arise only from 1st April, 1963. He, therefore, vacated the assessments for the earlier quarters and agreeing with the assessing officer and overruling the contentions of the assessee sustained the assessment for the quarter ending 30th June, 1963. He, however, bifurcated the turnover into two and only the one that was in relation to the supply of the X-ray film was subjected to tax. For the break-up, he relied upon some accounts produced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression used for their power of penetration, depends mainly on two things. The first is the extent to which the tube is emptied of all air and gas. The fewer the molecules of gas remaining in the tube, the less the electrons are interrupted by collisions. The second factor is the voltage, or electrical pressure, applied to the tube. The higher the voltage, the greater the impulse given to the stream of electrons and the more their energy when they strike the target. By use of X-rays, doctors and dentists can examine the condition of a person's bones, the roots of his teeth or the state of other hidden parts or his body. This may be done by direct observation against a fluorescent screen, or by photographic methods. We are concerned in this case with the photographic method. Continued exposure to X-rays is harmful to health and expert handling is, therefore, very much necessary. 6.. A radiographic work requires a team of trained personnel-radiologist, radiographer, dark-room assistant and engineer. When the unit is small, the radiologist has got to combine in him all the qualifications of the four types of people referred to above. The Assistant Commissioner of Sales Tax had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely, the practice in this country is to hand over the films to the patients, a very pernicious system which has existed from the very beginning. The correct procedure should be for the radiologist to send the report to the doctor referring the case, to whom the films may be sent, if asked for. The referring doctor's desire to see the films is quite understandable. Apart from the scientific interest, the physician or surgeon may want to see them with a view to gauge the extent of the disease, the specific characteristics of the diseased processes, if it is a case of deformity or otherwise. On the basis of such visualisation as depicted from the radiogram, depends the treatment to be given..........." We have also been shown the curriculum prescribed by the Utkal University for both the under-graduate and the post-graduate degrees in the subject. There is a clear indication that to be a radiologist, one has to be a doctor with specialisation in the subject. 7.. We do not propose to refer to all the cases of the photographers that were cited before us, because, we think it sufficient to refer to only a few of the cases to decide the point before us. In the case of Camera House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate analysis the trade involves the production of a marketable commodity, though it may be of interest to particular persons concerned. We are however satisfied that a commercial activity is reflected in the entire process. It is not a case of work and labour. When a customer approaches a photographer and wants him to take a photograph and pays for it and the copies therefrom, no skill is involved, and even if involved, it bears an infinitesimally small proportion to the totality of the bargain. The essence of the deal is a sale of a finished product and not a case where work and labour alone is involved......." In the case of B.C. Kame v. Assistant Sales Tax Officer[1971] 28 S.T.C. 1., a Bench of the Madhya Pradesh High Court was considering the exigibility of the turnover arising out of supplying of photo prints to those who got themselves photographed at the studio of the dealer to sales tax. The learned Chief justice spoke for the court thus: "The classical distinction between the two classes of contracts is to see if the movable article or chattel, as English lawyers would call it, is taken as such or the contract is primarily one of work and labour and the transfer of cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ients for reward in the course of a photographer's business carried on within the Commonwealth of Australia, were "goods manufactured in Australia" so as to be exigible to tax under the Sales Tax Assessment Act. The main judgment delivered by three Judges stated: "..........The contention is open to the observation that it does not strictly adhere to the question in the special case, which assumes the sale of the photographs as goods, and inquires, are they produced or manufactured?........In any case, we think the contention cannot prevail. The end of the organised business of a portrait photographer is to produce as many copies of a picture as his customer will buy, and to sell them to him with a view to profit. It differs from many other productive arts in the fact that its products must be designed in each case for one individual, and in its attempt to secure some aesthetic value. But it is a process practised commercially to produce an article which will be bought. A tailor must attempt to fit his individual customer and the manufacturer of ornaments might claim that his designs had an aesthetic purpose." We do not find much support for the point in issue from the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a customer approaches a professional photographer. The primary object of the transaction and the intention of the parties while entering into the arrangement in the case of a patient and the radiologist Is really not the transfer of the title of the X-ray plate, but the technical advice which the radiologist enables himself to give on the basis of his readings from the X-ray photograph. It is with the technical opinion of the radiologist that the patient is concerned. The X-ray photograph cannot be equated with a photograph in the ordinary sense. The photograph is a chattel to be possessed, whereas the X-ray photograph is essentially intended to be used as a medium for the purpose of knowing the defect in a part of the human body which is not visible from outside. It does not have commercial value in the real sense of the term and is actually not a commodity title whereto is intended to pass qua such commodity in the process of performance of the transaction between the patient and the radiologist. There is no doubt that for doing the job, the radiologist uses the X-ray plate which was hitherto his and after it is utilised for taking the X-ray photograph of the patient, it no more ..... X X X X Extracts X X X X X X X X Extracts X X X X
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