Decided on June 08,1998

Foto Fast Dass Mini Colour Lab Prasad Colour Lab Appellant


M. Ramakrishna, Chairman - (1.) THOUGH the appeals are preferred by different assessees, since common issue is involved in all these appeals, they are heard together and are disposed off by this common order. The facts that gave rise to the filing of these appeals in brief are that all the appellants are having Photo -Studios and carrying on business engaged in printing, developing the negative -rolls given by the customers and supplied the positives. The details of the appeals are given below: The concerned assessing authorities treated the activity of the appellants which is of taking out the positive prints from the negative brought by the customers and supplying such positive prints in the desired size along with their negative as works contract and subjected the collections made against turning out such work to tax under Section 5F of the APGST Act after allowing exemption on 30 per cent of such collections towards labour charges under Rule 6 of the APGST Rules. The contention of the appellants was not at all accepted by the lower authorities who relied on the amended definition of works contract which includes processing of moveable property. Accordingly, the assessing authorities taxed the entire turnovers mentioned in the statement supra, and the first appellate authority dismissed the appeals by common orders confirming the orders of the assessing authorities. Hence, the present appeals before us.
(2.) THE learned counsel for the appellants has reiterated the contentions urged before the lower authorities contending inter alia that the lower authorities erred in relying upon the decision of the Kerala High Court reported in 97 STC 161 in the case of Bavens v. Union of India And Others, rejecting the reliance placed by the appellants on the decision of Their Lordships of the Apex Court in B.C. Kame's case reported in, 39 STC 237 (SC) and the decision of this Tribunal in, 19 APSTJ 179 in the case of M/s. Tokyo Bajaj Colour Lab, Hyderabad v. State of Andhra Pradesh and, 20 APSTJ 253 in the case of State of A.P. v. M/s. Viswa Type Institute, Vijayawada. It is also his submission that the lower authorities erred in distinguishing the decision in M/s. Tokyo Bajaj Colour Lab's case as not relevant after inclusion of the word 'processing' the definition of works contract in Section 2(t) of the APGST Act with effect from 1.4.1995. It is his submission that even after the addition of the word "processing" in the definition, there is no change in the legal position regarding the transactions of developing and printing of photographs. He has also relied upon the decision of the West Bengal Tax Tribunal reported in, 89 STC 307, wherein it was held that such a transaction is not liable to tax as there is no vesting of property in transaction of developing of photograph. The Special Leave Petition filed by the State of West Bengal was dismissed by Their Lordships of the Apex Court reported in, 92 STC 1 (FRSC). The learned counsel for the appellants has also relied upon the decision of this Tribunal in TA No. 851/96, 31.1.1998 consisting of all the present three members, wherein following the decision of the Apex Court in M/s. Everest Copiers v. State of Tamil Nadu reported in : 23 APSTJ 116 this Tribunal allowed the appeal preferred by the appellant M/s. Sudha Lab and the orders of the lower authorities were set -aside and it is held that the disputed turnover is not exigible to tax.
(3.) THE learned AR has also relied upon the decision of the Bombay High Court in the case of Commissioner of Sales Tax, Maharashtra State, Bombay v. Radio Advertising Services reported in ( : 1997) 106 STC 50.;

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