VERY IMPORTANT POINT
The job rendered by a photographer in taking photographs, developing and printing films would not amount to a works contract as contemplated under Article 366(2A)(b) of the Constitution read with Section 2(n) of the M.P. General Sales Tax for the purpose of levy of sales tax on business turnover of the photographers.

JUDGMENT

Santosh Hedge, J.-Common questions involved in these appeals are whether the job rendered by a photographer in taking photographs, developing and printing films would amount to a works contract as contemplated under Article 366(2A)(b) of the Constitution read with Section 2(n) of the M.P. General Sales Tax for the purpose of levy of sales tax on business turnover of the photographers.

2. Prior to the 46th Constitutional Amendment, this question was settled in favour of the assessee by the judgment of this Court in the case of Assistant Sales Tax Officer & Ors. v. B.C. Kame1.

3. Taking advantage of the 46th Amendment of the Constitution and the consequent amendment to the definition of sale in Section 2(n) of the local Sales Tax Act, the Commissioner of Sales Tax, M.P. issued Circular dated 25.1.1992 opining that the job done by the photographers amounted to "works contract" and turnover from such work would be exigible to the levy of sales-tax. This Circular prompted the concerned Assessing Officers to re-assess the turnover of the assessees and to issue them demand notices.

4. Aggrieved assessees filed writ petition before the M.P. High Court primarily contending that the work done by them is only a service contract, out of their skill and labour and there was no element of sale involved in their work, hence their turnover was outside the levy of sales-tax.

5. The High Court, however, relying on the judgment of this Court in Builders Association of India & Ors. v. Union of India & Ors.2 held that, to the extent of the photo paper used in the printing of positive prints by the appellants in their work, there is a transfer of property in goods. Therefore, to this extent, the job done by the appellants becomes a "works contract" as contemplated under Article 366(2A)(b) of the Constitution and as incorporated in Section 2(n) of the State Act.

6. This declaration of law is challenged before us in these appeals.

7. On facts, there is no dispute before us in regard to the actual nature of work done by the appellants i.e. in the course of their business. The appellants take photographs of the objects desired by their customers, develop the negatives and supply the prints. They also develop the films brought by the customers, make positive prints thereof and supply the positive prints and return the negative films back to the customers. In some of the cases, it is possible that the appellants may undertake the work of enlarging the photo prints also. It is also of common knowledge that the photo prints supplied by them to their customers are not marketable commodities and as goods they have no value.

8. In this background, we will now examine the question arising in these appeals.

9. This Court in Kame s case (supra) while considering the facts of a similar case held : "... When a photographer like the respondent undertakes to take photograph, develop the negative, 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. The contract on the contrary is for use of skill and labour by the photographer to bring about a desired result. The occupation of a photographer, except in so far as he sells the goods purchased by him, in our opinion, is essentially one of skill and labour. x x x x x

We, therefore, find no cogent ground to disagree with the High Court in so far as it has decided against the revenue and has held the contract to be one for work and labour."

10. Since this was a judgment rendered prior to the coming into force of the 46th Constitutional Amendment, we will have to consider whether the said Amendment has brought about any change so as to doubt the legal position enunciated in the above case. It is true that by the 46th Constitutional Amendment by incorporating Clause 29-A(b) in Article 366, the definition of the words "sale" and "works contract" have been enlarged. The State of Madhya Pradesh has also brought about a consequent