CHELARAM HASOMAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE question that has been referred to this Court is :- "Whether on the facts and in the circumstances of the case the work of preparing and supplying a personal technicolour enamelled photograph of an individual to the goldsmith from whom an order with specifications is received for its preparation, amounts to a contract of sale and whether such sale is liable to tax under the Bombay Sales Tax Act, 1959 ?"

(2.) THE applicants prepare coloured photographs of Goods, saints and public men on miniature enamelled copper plates with a view to sell them to the public. Such photographs they describe as religious photographs. THEy also receive orders for preparing such photographs of individuals on enamelled copper plates. Such photographs are described by them as individual photographs. THEse plates have sometimes loops with which they are attached to ornaments, such as necklaces, and in such cases, the copper plates so arranged can be used as lockets.

(3.) THE contention on behalf of the applicants before us was that when a customer placed an order to have an enamelled photograph imprinted on a locket, i.e., on a copper plate, the contract was not one of sale of the copper plate with the technicolour photograph thereupon or the locket, but it was one of work and skill and to create an object of art. THE predominant element in the transaction was not to sell the locket but to have the photograph of the customer on the locket. THErefore, the essence or the predominant element of the contract is not to transfer property in the locket but, by the use of technical skill, to have the customer's photograph transferred on to a copper plate which, by its having a loop at one end, can be used as a locket or any other piece of ornament. To make such an enamelled photograph, it was argued, requires considerable technical skill and certain amount of aesthetic value and that it is a more advanced stage of art than mere photography and, therefore, the essence of the contract is to render skilled service. Such a transaction, therefore, does not involve sale of a chattel as a chattel.