# Vaaho Photo International and another v. State of U.P. and others

- **Citation:** (2003) 1 ILRA 184
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-02-14
- **Case number:** Civil Misc. Writ Petition No. 266 of 2003
- **Bench:** M. Katju, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vaaho-photo-international-and-another-v-state-of-u-p-and-others-39948
- **Pages:** 4

## Headnote

Constitution of India, Article 226- trade
tax- imposition upon a firm doing
business of Photographer- the article or
goods transferred to the customers by
the firm liable for imposition of trade tax
as per order of Commissioner- held
proper.

Held- Para 11 and 12

When a photograph, whether positive or
the negative print is given to the
customer
certainly
some
material
property is transferred to the customer,
and it cannot be said that only service is
rendered to the customer. It often
happens that a customer goes to a
photographer's shop, the photographer
takes him into the studio and takes his
photographs. To this extent service is
rendered.
Thereafter
when
the
photograph
is handed over
to the
customer there is transfer of goods when
the photograph is sold to the customer
that is a transfer of the property in goods
http://www.allahabadhighcourt.nic.in
1All] Vaaho Photo International and another V. State of U.P. and others 185
and it is not merely rendering of service
as is the case in a barber's shop.

In the present case the commissioner
has directed levy of trade tax only on the
material/property
which
has
been
transferred by the petitioners to the
customers.

## Text

http://www.allahabadhighcourt.nic.in
184 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
obviously incorrect and can not help the
petitioners.

9.

Learned
counsel
for
the
petitioners
has
relied
upon
certain
amendments made to Section 47-A by
which the power of Sub Registrar to make
a reference after registration of the sale
deed is alleged to have taken away. It has
been argued that the Sub Registrar could
have made the reference only prior to the
registration
of
sale
deed
and
the
subsequent
reference
is
not
valid.
Therefore, the argument proceeds, all
proceedings consequent upon such invalid
reference are vitiated.

10. The contention is not acceptable
for two reasons. The first reason is that
there is a power under sub section (4) of
Section 47-A now numbered as sub
section (3), which empowers the Collector
to Act suo motu. Therefore, the reference
made by the Sub Registrar can be treated
to be a mere information to the Collector,
in the present case.

The second reason is that the
petitioners are before this Court in
discretionary and equitable jurisdiction. I
am not inclined to exercise such a
jurisdiction to assist the petitioners in
their attempt to evade the tax.

In view of aforesaid circumstances,
this writ petition fails and is accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.2.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 266 of 2003

Vaaho Photo International and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Bharat Ji Agarwal
Sri Piyush Agarwal
Sri Amit Jaitly

Counsel for the Respondents:
Sri S. P. Kesharwani
S.C.

Constitution of India, Article 226- trade
tax- imposition upon a firm doing
business of Photographer- the article or
goods transferred to the customers by
the firm liable for imposition of trade tax
as per order of Commissioner- held
proper.

Held- Para 11 and 12

When a photograph, whether positive or
the negative print is given to the
customer
certainly
some
material
property is transferred to the customer,
and it cannot be said that only service is
rendered to the customer. It often
happens that a customer goes to a
photographer's shop, the photographer
takes him into the studio and takes his
photographs. To this extent service is
rendered.
Thereafter
when
the
photograph
is handed over
to the
customer there is transfer of goods when
the photograph is sold to the customer
that is a transfer of the property in goods
http://www.allahabadhighcourt.nic.in
1All] Vaaho Photo International and another V. State of U.P. and others 185
and it is not merely rendering of service
as is the case in a barber's shop.

In the present case the commissioner
has directed levy of trade tax only on the
material/property
which
has
been
transferred by the petitioners to the
customers.

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
against the impugned circulars dated
4.5.2001 and 28.1.2002 (Annexure 2 and
3 to the writ petition) issued by the
Commissioner
of
Trade
Tax.
The
petitioner has also challenged the notice
dated 28.1.2003 (Annexure 4 to the writ
petition) issued by respondent no. 3 on the
basis of the aforesaid circulars.

2. Heard Sri Bharatji Agarwal
Senior Advocate and Amit Jaitly for the
petitioner and Sri S.P. Kesharwani for the
respondents.

3. The petitioner no. 1 is a registered
partnership firm and petitioner no. 2 is
one of its partners. Petitioners are
carrying on the business of developing,
printing,
processing
and
enlarging
photographs. By the impugned Circular
dated 28.1.2002 (Annexure 3 to the writ
petition) the Commissioner of Trade Tax
has directed that trade tax can be imposed
on the photographs taken and printed by
the petitioners by bifurcating the value of
the goods and service provided by the
petitioners.

4. Sri Bharatji Agarwal, learned
counsel for the petitioners, has relied on
the decision of the Supreme Court in M/s
Rainbow Colour Lab and another Vs.
State of Madhya Pradesh and others
2000 UPTC 193. That judgment was
delivered by a two Judge Bench of the
Supreme Court and in that case also the
challenge was on the levy of trade tax on
photographs as stated in paragraph 7 of
the said judgment. In paragraph 14 of the
said judgment in M/s Rainbow Lab's
case (supra) it was observed that the
activity of the appellants cannot be treated
as sale of the photographs for the reason
that it is not the intention of the customer
to
buy
a
photograph
from
the
photographer.
The
Supreme
Court
observed :

"The photograph has no marketable
value. What is expected from the
photographer is his service, artistic skill
and talent. If any property passes to the
customers in the form of photographic
paper, it is only incidental to the service
contract. No portion of the turnover of a
photographer relating to this category of
work would be eligible to sales tax".

5. In a subsequent decisions a three
Judge Bench of the Supreme Court in
Associated Cement Companies Ltd. Vs.
Commissioner of Customs (2001) 124
STC 59 observed in paragraph 26:

"Even if the dominant intention of
the contract is the rendering of a service,
which will amount to a works contract,
after the Forty-sixth Amendment the State
would be empowered to levy sales tax on
the material used in such contract. The
conclusion arrived in Rainbow Colour
Lab case (2000) 118 STC 9 (SC): (2000)
2 SCC 385, in our opinion, runs counter
to the express provision contained in
Article
66
(29A)
as
also
of
the
Constitution Bench decision of this Court
in Builders' Association of India v. Union
of India (1989) 73 STC 370: (1989) 2
SCC 645."
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186 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

6. Sri Bharatji Agarwal, learned
counsel for the petitioners submitted that
the decision of the Supreme Court in
Associated Cement Company's case
(supra) has not over ruled the earlier
decision of the Supreme Court in the case
of M/s Rainbow Lab's case (supra) but
has only doubted the correctness of the
said decision. We do not agree. When the
Supreme Court states that the conclusion
arrived at in Rainbow Lab's case (supra)
runs counter to the provisions contained
in Article 366 (29A) as also of the
Constitution Bench decision in Builder's
Association of India (supra), in our
opinion it has overruled the decision in
Rainbow Colour case, though by using a
different language. It is not the language
used which is material but the substance
of the decision has to be seen.

7. In our opinion a full reading of
the judgment of the three Judges Bench in
Associated
Cement
Companies
Ltd.
(supra) clearly shows that the decision in
Rainbow Colour Lab (supra) has been
clearly overruled. In our opinion this has
been done for good reasons also. The law
prior to insertion of Article 366 (29A) in
the Constitution was that the State
Legislature cannot by legal fiction deem
something which is not a sale to be a sale
and then impose sales tax on it. In State
of Madras V. Gannon Dunkerley and
Company (Madras Ltd. 1958 9 STC 353
SC what happened was that the State
Legislature of Madras had defined a sale
in its Sales Tax Act to include a work
contract. The Supreme Court rightly held
in that case that the State Legislature
cannot artificially deem some thing which
is not sale to be a sale and in this way
impose sales tax on it. A works contract is
not a sale and hence the State Legislature
could not impose sales tax because there
was no entry either in the State or
concurrent list which enabled the State
Legislature to impose sales tax on a works
contract.

8. Subsequent to said decision in
Gannon Dunkereley's case (supra) the
Constitution was amended and Article
366 (29A) was inserted which enables the
State Legislature to impose sales tax on
that part of a works contract whereby
material in goods is transferred, but the
State Legislature cannot impose sales tax
on the services rendered. Thus, by this
amendment a works contract can be split
up into two parts and need not be treated
as indivisible i.e. contract of rendering
service and contract for transfer of
materials.

9. In our opinion the two Judge
Bench of the Supreme Court in Rainbow
Colour Lab case (supra) was rightly
overruled by the three Judges Bench in
Associated
Cement
Company
case
(supra) because the two Judge Bench had
held that the sale of photographs is only
incidental to the service contract and
hence sales tax cannot be imposed on it.

10.

In
Associated
Cement
Company case (supra) the Supreme
Court observed in paragraph 26 that even
if the dominant intention of the contract is
the rendering of a service, which will
amount to a works contract, after the
Forty Sixth amendment the State would
now be empowered to levy sales tax on
the material used in such contract.

11. When a photograph, whether
positive or the negative print is given to
the customer certainly some material
property is transferred to the customer,
and it cannot be said that only service is
http://www.allahabadhighcourt.nic.in
1All] Raies alias Yogendra Singh Yadav V. State of U.P. and others 187
rendered to the customer. It often happens
that a customer goes to a photographer's
shop, the photographer takes him into the
studio and takes his photographs. To this
extent service is rendered. Thereafter
when the photograph is handed over to
the customer there is transfer of goods.
When the photograph is sold to the
customer that is a transfer of the property
in goods and it is not merely rendering of
service as is the case in a barber's shop.

12. In the present case the
commissioner has directed levy of trade
tax only on the material/property which
has been transferred by the petitioners to
the customers.

13. Hence there is no merit in the
contention of the learned counsel for the
petitioner. The petition is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.2.2003

BEFORE
THE HON'BLE U.S. TRIPATHI, J.
THE HON'BLE D.P. GUPTA, J.

Criminal Misc. Habeas Corpus Petition No.
44309 of 2002

Raies alias Yogendra Singh Yadav

 ...Petitioner
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioner:
Sri V.S. Singh

Counsel for the Respondents:
Sri Arvind Tripathi
A.G.A.
Sri B.N. Singh
S.C.
Sri R.K. Shukla

National Security Act- Section 3 (2)- the
detention order can be passed even if
the detenue is in jail, provided the
detaining authority has recorded his
satisfaction
that
there
was
every
possibility of his being released on bail
and that after release on bail, he would
indulge in similar activities prejudicial to
the maintenance of public order.

Held ( in Para 21)

In
the
instant
case,
the
detaining
authority has mentioned in the grounds
of
detention
that
at
present
the
petitioner was detained in district jail,
Jhansi in connection with case crime no.
193
of
2002
under
section
364A/395/412
IPC
and
10/12
Dacoity
Affected Area Act relating to P.S. Babina
and he and co-accused Bhaiyan @
Satyapal had moved application for their
bail in the Court of Special Judge
(Dacoity Affected Area), Jhansi and there
was real possibility of being him released
on bail.
Case law referred:
1989 (26) ACC 1 (SC)
1990 (2) SCC, 456
2002 (45) ACC, 998
1990 (27) ACC, 621 (SC)

(Delivered by Hon'ble U.S. Tripathi, J.)

1. The petitioner has filed this writ
petition challenging his detention order
dated
26.7.2002 passed
by
District
Magistrate, Jhansi, respondent no. 2,
under section 3 (2) of National Security
Act.

2. The grounds of detention served
on the petitioner alongwith detention
order
(Annexure
SA-1
to
the
supplementary affidavit) disclosed that on
the night of 4/5.6.2002 at about 12.30
a.m. 10-12 armed persons of Dhan Singh
gang with which the petitioner was