GOLAK BEHARI MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS court at the instance of the assessee by order dated 24th January, 1972, directed the Orissa Sales Tax Tribunal under section 24 (3) of the Orissa Sales Tax Act (hereinafter referred to as the "act") to state a case and refer the following question for determination of this court : <AT>" Whether, in the facts and circumstances of the case, the petitioner is a dealer under the Orissa Sales Tax Act ?"</AT> In compliance with the direction, the Tribunal has stated a case.

(2.) THIS reference relates to the quarter ending 30th June, 1963. The assessee during this period was the Professor of Radiology in the S. C. B. Medical College and Hospital attached thereto at Cuttack. He was carrying on private practice as a radiologist and for that purpose had installed an X-ray plant. He used to purchase X-ray plates and other chemicals from outside the State and take X-ray photographs of patients according to requisitions from physicians as also of his own patients. After taking the X-ray, he used to give technical advice to his patients and was charging a flat rate of Rs. 10 towards his remuneration and cost of materials. The Sales Tax Officer was of the view that the turnover arising from such transactions was liable to tax under the Act. The assessee resisted the attempt of the Sales Tax Officer by taking the stand that the transactions were essentially contract of work and labour and, therefore, the turnover arising out of such transactions was not exigible to tax. Overruling the stand of the assessee, the Sales Tax Officer completed the assessment for the quarters ending 30th September, 1962, to 30th June, 1963. The Appellate Assistant Commissioner was satisfied that liability under the Act keeping the extent of turnover in view could arise only from 1st April, 1963. He, therefore, vacated the assessments for the earlier quarters and agreeing with the assessing officer and overruling the contentions of the assessee sustained the assessment for the quarter ending 30th June, 1963. He, however, bifurcated the turnover into two and only the one that was in relation to the supply of X-ray film was subjected to tax. For the break-up, he relied upon some accounts produced by the assessee. The Tribunal in second appeal by the assessee affirmed the assessment and sustained the appellate order. The assessee applied for stating a case to this court and when that was refused, this application has been made to this court.

(3.) BEFORE we proceed to examine some of these cases cited at the Bar, we think it appropriate to examine what exactly is the nature of work done by the radiologist and if he can be equated with a photographer.