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TMI Blog2010 (8) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... he certified copy of today’s order. - Writ Petition Nos. 4317-4320 - - - Dated:- 11-8-2010 - ASHOK B. HINCHIGERI , J. ORDER:- ASHOK B. HINCHIGERI J. The petitioner has sought a writ of manda mus to the respondents to refund the sum of Rs. 1,62,23,677 collected from the petitioner relating to assessment years 1989-90 to 1994-95 and 1996-97 to 1998-99 together with statutory interest. It is not in dispute that the amounts in question came to be paid by the petitioner by way of tax demanded towards the photographic activities. The demand for the refund of the said amounts is on account of the judicial pronouncement that the photographic activities are not a sale, but only a contract of work. Sri G. Sarangan, the learned senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e commodity and as such no tax can be levied. Entry 25 of the Sixth Schedule to the Karnataka Sales Tax Act, 1957, therefore is beyond the scope of article 366 of the Constitution of India. Nextly, the learned senior counsel relied on the honourable apex court s judgment in the case of Rainbow Colour Lab v. State of Madhya Pradesh reported in [2000] 118 STC 9 (SC), wherein it is held that taking photo graphs, developing negative films, supplying prints, etc., are all in the nature of service contract and do not involve the sale of goods. Sri Sarangan strenuously brings to my notice that the considered view taken by the Division Bench judgment in the case of Keshoram [2001] 121 STC 175 (Karn) is upheld by the honourable Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of article 14, as the similarly placed parties, namely, Suresh and R.K. Colour Labs are already given the refunds. Sri K.M. Shivayogiswamy, the learned High Court Government Pleader appearing for the respondents submits that a similar matter is pending consideration before the honourable Supreme Court in Civil Appeal No. 1145 of 2006 (annexure F). The honourable Supreme Court has passed the interim order on November 19, 2007, which is as follows: Meanwhile, the authorities may make the assessment but no coercive steps will be taken to recover the tax from the respondents (herein). In view of the granting of this interim order, the respondents are not obliged to refund the amounts, is the emphatic submission of the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot obtained any further interim orders from the apex court. The plain reading of the honourable Supreme Court s interim order, dated November 19, 2007 makes it clear that the authorities will make the assessment, but no coercive steps will be taken to recover the tax. The letter and spirit of this order is that if the tax are not yet recovered from the peti tioner, it is not open to the respondents to recover it coercively. If it is already recovered, as happened in this case, there is no legal impediment in directing respondent No. 1 to refund the amount. The case law, to which my attention is elaborately drawn by Sri Sarangan, is that the photographic activities of processing and supplying the photo prints, photo negatives, is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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