S. N. BHARGAVA, J. - (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. . . . . . . . " The aforesaid observations had been made after noticing the view of the Supreme Court in State of Himachal Pradesh v. Associated Hotels of India Ltd. [1972] 29 STC 474. Learned counsel for the petitioner has further submitted that it is purely a service contract and no sales tax is leviable in relation thereto and in this connection, he has placed reliance on Pest Control India Ltd. v. Union of India [1989] 75 STC 188 (Pat) wherein Builders Association of India v. Union of India [1989] 73 STC 370 (SC) has been relied. Learned counsel for the petitioner has further brought to my notice National Clinic v. Assistant Commercial Taxes Officer ILR 1966 Raj 3 wherein a Division Bench observed as under : " On the face of it taking X-ray photo is nothing but rendering professional service and by itself does not have any element of sale in it. In the circumstances the reason recorded in the notice (annexure 4) being patently wrong we do not find that it has any rational connection with the escapement of business from sales tax. This notice, therefore, cannot be considered by us to be a valid notice so as to confer jurisdiction on the officer to proceed further with the matter. " Learned counsel for the petitioner has then submitted that since the petitioner is not a dealer under section 2 (f) of the Act and is not liable for payment of tax under section 3 as the property does not belong to the patient in X-ray and therefore, the petitioner is not liable for registration under section 6. He has further submitted that the writ petition is not premature but is maintainable even against the notice (annexure 1) and in this connection, has placed reliance on the following authorities : (a) In re : Purabachal International (1985) 21 ELT 673 (Cal); (b) Godrej and Boyce Manufacturing Co. Pvt. Ltd. v. Union of India (1984) 18 ELT 172 (Bom) wherein it has been held that if the show cause notice was void and illegal, the High Court was competent to intervene by way of writ petition under article 226 of the Constitution of India, to quash the illegal notice. In this case, Light Roofings Ud. v. Superintendent of Central Excise 1981 ELT 738 (Mad.) and East India Commercial Co. Ltd. v. Collector of Customs AIR 1962 SC 1893 were considered and relied; (c) Ashwin Industries v. Deputy Commissioner of Sales Tax [1982] 50 STC 322 (Guj); (d) Chatur Bhuj Pokar Ram v. Commercial Taxes Officer [1984] 56 STC 75 (Raj); (e) Bul Chand v. State of Rajasthan [1987] 65 STC 6 (Raj); (f) Shipping Corporation of India v. State of West Bengal [1990] 77 STC 438 (WBTT); (g) Duncan Agro Industries Ltd. v. J. Banerji, Member, Central Board of Excise [1984] 2 ECC 241 (Cal ). On the other hand, learned counsel for the respondents has submitted that petitioner's writ petition is premature. He has already filed reply to the notice and it is for the authorities concerned to examine the view point of the petitioner and then decide the whole matter.
(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;" In every case, the court has to find out what was the primary object of the transaction and the intention of the parties while entering into it. Radiologist is usually approached for technical advice and for rendering such advice, a fee is charged. The primary object of the transaction and the intention of the parties in such matters is really not the transfer of the title to the X-ray plate but the technical advice which the radiologist gives on the basis of his reading from the X-ray photograph. The patient is concerned with this technical opinion and not the X-ray film. Taking X-ray photograph is nothing but rendering a professional service and does not involve the element of sale. I am fortified in my view that I have expressed above, by the judgment of this Court in National Clinic's case ILR 1966 Raj 3 as also Dr. Golak Behari Mohanty's case [1974] 33 STC 514 (Orissa ). If we look at the definition of "dealer" given below, it cannot be said that the petitioner can be included in the definition of "dealer" : " 2 (f) 'dealer' means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise or making, sales as defined in clause 2 (o) whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration and includes - (i) a local authority, a company, an undivided Hindu family or any society (including a co-operative society), club, firm or association which carries on such business; (ii) a society (including a co-operative society), club, firm or association which buys goods from or sells, supplies or distributes goods, to its members; (iii) a commission agent, a broker, a del credere agent, an auctioneer or any other mercantile agent, by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal; (iv) a casual trader. " As such, no sales tax is liable to be paid by the petitioner on the bill for advice given by the radiologist on the basis of X-ray photograph and therefore, no useful purpose would be served by remitting the matter to the sales tax authorities on this aspect of the matter. ;