HEMENDRA SURANA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) AS per the facts stated in the memo of writ petition, the petitioner is a medical practitioner. He provides technical advice to the patients on the basis of X-ray and other clinical tests done in his clinic. The petitioner received a notice under section 16 (1) (a) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act"), issued on July 29, 1988 (annexure 1) for appearance before the ASsistant Commercial Taxes Officer, on August 18, 1988, along with all the documents because on inspection it was found that he was doing business without registration with the Sales Tax Department. The petitioner submitted a reply to the said notice stating that he is not a dealer but a professionally qualified technical person doing service in respect of various tests in the laboratory, i. e. , neither he executes any work under a contract nor is he a contractor and therefore, he is not liable to pay any sales tax nor is he realising any sales tax from his patients. The petitioner has also engaged highly technically trained personnel as radiologists, dark room assistants, etc. , for taking X-rays and doing other clinical examinations but after submitting this reply, he did not hear anything. Ultimately, the present writ petition had been filed on November 7, 1988, seeking to quash the notice (annexure 1 ). Notices of the writ petition were issued on December 2, 1988 to show cause as to why the writ petition be not admitted and disposed of. The petitioner thereafter got his writ petition amended and has filed the amended writ petition. Reply to the show cause notice had been filed on behalf of the respondents on April 3, 1989, wherein it was submitted that this writ petition had been filed against the notice by which the petitioner was only asked to produce the record for making investigation and therefore, it was wholly premature and the petitioner has already filed a reply to the notice, hence the matter is still pending before the authorities. A rejoinder to this reply has also been filed on behalf of the petitioner. Arguments have been heard.

(2.) LEARNED counsel for the petitioner has submitted that giving of opinion/advice or making diagnosis, taking X-ray and charging the fees, does not amount to selling. The property in the X-ray film is not of the patient and if the patient demands the X-ray film that is also given to him which he can show to his treating doctor. There is no transfer of property by giving X-ray film to the patient. In this connection, he has placed reliance on Dr. Golak Behari Mohanty v. State of Orissa [1974] 33 STC 514 (Orissa) wherein a Division Bench presided over by honourable Shri R. N. Misra, as he then was, has observed as under : " A radiologist is not a dealer under the Orissa Sales Tax Act, 1947, inasmuch as the transaction that takes place between him and his customer is essentially one of work and labour which incidentally involves the supply of the X-ray photograph. . . . . . . . "

(3.) I have given my thoughtful consideration to the whole matter and have considered the various submissions made by learned counsel for the parties as also the authorities cited before me. It is admitted that the petitioner is a medical practitioner and has been advising and giving his opinion and diagnosing about the ailment with the help of X-ray and other tests and it is not necessary that the petitioner should handover the X-ray film to the patient in every case, but if the patient wants the X-ray film to show to his treating doctor, physician or the surgeon, he requests the radiologist to handover the X-ray film as well. The patient ordinarily does not approach the radiologist with the request to take his radiograph as a customer approaches a professional photographer. The patient is only interested in the technical advice which the radiologist gives on the basis of his reading from the X-ray photograph. X-ray photographs cannot be equated with the photographs in the ordinary sense. X-ray photograph is essentially intended to be used as a medium for the purpose of knowing the defect in a part of the human body which is not visible from outside. It does not have commercial value in the real sense of the term. It is not a commodity which can be said to have been sold by the radiologist to the patient. It can be treated as a contract of work or service and cannot be termed as "sale" within the meaning of section 2 (o) of the Rajasthan Sales Tax Act, 1954, which runs as under : " Section 2 (o) : 'sale', with all its grammatical variations and cognate expressions, means every transfer of property in goods (other than by way of mortgage, hypothecation, charge or pledge) by one person to another for cash, or deferred payment or other valuable consideration and includes - (i) a transfer, otherwise than in pursuance of a contract, of property in goods, for cash, deferred payment or other valuable consideration; (ii) a transfer of property in goods (whether as goods or in some other form) made in the course of the execution of a contract or works contract; (iii) a delivery of goods on hire-purchase or other system of payment by instalments; (iv) a transfer of the right to use goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (v) a supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (vi) a supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply is for cash, deferred payment or other valuable consideration - and such transfer, delivery or supply shall be deemed to be a sale and the word 'purchase' or 'buy' shall be construed accordingly;"