P A PREMKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) HEARD Mr. K. I. Mayankutty Mather for the respective appellants and Mr. R. K. Muraleedharan, Additional Government Pleader for Taxes, for the respondents-State. Appellants are the assessees in all the three appeals. W. A. No. 776 of 1999 :

(2.) THE petitioner in O. P. No. 3173 of 1994 is the appellant. THE appellant is engaged in the business of photo processing laboratory and also in the purchases and sales of photographic materials. It carries on business, inter alia of purchase and sales of photographic goods, processing of film from the negatives given by their customers. THEy also undertake the job of photography. THE controversy arose when "works contract" was made deemed sales in pursuance of the 46th Constitutional Amendment to the Kerala General Sales Tax Act, 1963 (for short "the Act" ). According to the appellant, photography is not a specified activity covered by the Fourth Schedule to the Act and the activity of a photographer/the processing unit are three-fold : (a) taking photographs of customers with films supplied by the photographer and supplying prints or enlargements after developing the same; (b) developing, printing and if necessary enlarging exposed films supplied by the customers; and (c) take positive prints from the negatives brought by the customers and supply the prints in desired size to the customer along with their negative. When a photographer undertakes to take photographs, develop negative or do other photographic works and thereafter supply the prints to his clients, he cannot be said to enter into a contract for sale of goods and the contract, on the contrary, is for use of skill and labour by the photographers to bring about a desired result.

(3.) THIS writ appeal is directed against the judgment of G. Sivarajan, J. in O. P. No. 6964 of 1999 dated March 17, 1999. The original petition was filed to quash exhibits PI, P4 and P5 and also to declare that clause (6) of the Table appended to section 5c of the Act to the extent it covers photography as works contract for the purpose of computation of tax is ultra vires and void and also for a further declaration that on a proper interpretation of Explanation 3b to section 2 (xxi) of the Act, it does not cover or intends to cover processing of film by a photographer and it cannot be termed as a deemed sale - works contract. Exhibit PI is the assessment order. Exhibit P4 is the demand notice and exhibit P5 is the order passed by the Appellate Assistant Commissioner, Thrissur, in a stay petition filed by the appellant wherein the Appellate Assistant Commissioner granted conditional stay directing the appellant to pay 50 per cent of the balance tax and surcharge within 15 days and furnish security for the balance amount. In the original petition, similar and identical contentions and question of law have been raised as in W. A. No. 776 of 1999. The original petition was dismissed by the learned single Judge by confirming the conditional order of the appellate authority. W. A. No. 820 of 1999 :