BAVENS Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE writ petitions come before us by way of a reference as a learned single Judge found that the contentions raised by the petitioners have far reaching consequences.

(2.) PHOTOGRAPHY and its allied activities - a pure work of art outside the purview of works contract ? - is the question raised in these writ petitions. Where photographic cameras started clicking during the regime of Queen Victoria, much impressed by the modern gadget, the Queen expressed an apprehension to Alfred Chalon, the artist, whether photography might ruin his profession - portrait painting. He replied, "ah, non, Madame, the photography cannot flattere". But the petitioners before us would contend that as much artistic skill and talent is required to be invested in a photograph as in a portrait painted. According to them, photography is a work of art. They quote in their support, observations made by the apex Court in Assistant Sales Tax Officer v. B. C. Kame [1977] 39 STC 237.

(3.) THE petitioners are engaged in photographic work and are also dealers in photographic goods. As far as assessment on the turnover in respect of sale of photographic goods, no objection is raised by the petitioners. But, according to then, when they take photographs of their customers, develop the negatives and handover positive prints to the customers or when they develop the exposed negatives brought by the customers and supply them positive prints, or when they take positive prints from the negatives brought by the customers, the contract between them and the customer is for service by the photographer to bring about a desired result and no part of the contract is exigible to sales tax. According to them, the 46th Constitutional amendment has not brought about any change in the matter of exigibility to sales tax as far as photographic work is concerned from the position as it obtained at the time of the decision of the Supreme Court in Assistant Sales Tax Officer v. B. C. Kame [1977] 39 STC 237. We must make it clear that the above was the only question argued before us by the petitioners, even though they have challenged the 46th amendment of the Constitution and certain provisions of the Kerala General Sales Tax Act and Rules relating to the computation of value of the property in the goods transferred in the execution of works contract.