M. NARAYANAN Vs. STO, TELLICHERRY

JUDGEMENT

(1.) This writ petition canvasses the liability of a Medical Practitioner to be assessed to sales tax under the Kerala General Sales Tax Act 1963. Alternatively, it challenges the validity of a notification - and in particular, of the explanation thereto - made by the Government, exempting medical practitioners from payment of sales - tax, to a limited extent. The petitioner is a Medical Practitioner in Tellicherry and was assessed to sales tax for the years 1963-64, 1964-65 and 1965-66 by final orders of assessment (Exts. P5 to P7). He was also provisionally assessed by the last of these orders to sales tax for the years 1966-67. Ex. P8 series are the demand notices in respect of the periods covered by these orders.

(2.) S.2(viii) of the Kerala General Sales Tax Act 1963 defines the term "dealer" as follows: (the material portion alone reproduced):

(3.) The contention of Counsel for the petitioner was that a Medical Practitioner is not a "dealer" within the meaning of the Act; nor could there be any "sale" of medicines by such a practitioner to his patient so as to attract liability for tax. A medical practitioner, it was contended, is engaged in the pursuit of a profession and, not a trade or business. From the nature of the profession no less than from the oath of Hippocrates by which he was bound, he was required to strive for the alleviation of human suffering, without any motive of profit or reward. Any transfer of property in medicines in the course of professional service, from a Medical Practitioner to a patient, was, if at all, only incidental and ancillary to the service and can hardly form the basis of a consensus or agreement between the two to sell the medicine, as distinct from, or as an integral part of, the service rendered, so as to attract the definition of a "sale", under the Act. So ran the argument.