LIVE TONE Vs. STATE OF TRIPURA

JUDGEMENT

(1.) The writ petitioner M/s. Live Tone is a photographic firm owned by sole proprietor, Shri Shyamal Kumar Banik having his place of business at Bidur Karta Chowmuhani, Agartala, West Tripura. hi this petition, the assessment order passed by the respondent Superintendent of Taxes dated 26.8.1997, the order dated 23.9.1997 passed by the Commissioner of Taxes being the appellate authority and the order dated 20.3.1998, passed.by the Tripura Sales Tax Tribunal have been put under challenge under Article 226 of the Constitution of India, seeking a writ of certiorari for quashing/cancelling the aforesaid impugned orders of assessment of sales Tax. By the aforesaid orders, the taxing authority under the Tripura Sales Tax Act held that the works done by the petitioner in taking snaps of photograph, washing the negatives and printing out the photographs is covered by the term "works contract" and as such the same is taxable under the Tripura Sales Tax Act. The petitioner challenged the aforesaid orders solely on the ground that the petitioner performed/performs artistic activities having applied his intellectual artistic skills and by his works in taking snaps of photographs and/ or washing negatives and/or printing out finished photographs of any individual or group of persons are nothing but "rendering service" and not "works contract" and as such the said works of rendering service undertaken by the petitioner is not subject to payment of any tax under the Tripura Sales Tax Act, but having mis-interpreted/mis-construed the related provisions of the Tripura Sales tax Act, the respondents passed the impugned orders imposing tax to be paid by the petitioner.

(2.) The respondents filed joint counter- affidavit. Having taken the stand that the works done by the photographer in the aforesaid case is covered by the term "works contract" as defined under Section 2(co)(iv) of the Tripura Sales tax Act 1976 read with Section 3 A of the said Act of 1976 as amended upto date. Section 3A runs as follows :-

(3.) Mr. S.C. Saha, the learned counsel for the petitioner referred a citation reported in (1977) 39 STC 237 (The Assistant Sales Tax Officer and others V. B.C. Kame). In that case, the Hon'ble Supreme Court interpreted the nature of works done by a photographer in the context of the Madhya Pradesh General Sales tax Act, 1958. The judgment was rendered on 14.12.1976. The Hon'ble Supreme Court held that when a photographer undertakes to take a photograph, develop the degative, or do other photographic work and thereafter supply the prints to his client, he cannot be said to enter into a contract for sale of goods. What he renders is his skills and labour to bring out a desired result of finished photograph. The Hon'ble Supreme Court held that though the work done by the photographer is a contractual work, but not a works contract and as such is not a sale as defined under Madhya Pradesh Sales Tax Act.