Ramakrishnan, J.
1. For the assessment year 1959-60, the assessee (revision petitioner before us), a dealer in radios and electrical goods at Singaratope, Tiruchirapalli, was assessed inter alia for the following items of turnover, which are now in dispute :--
Rs. Np.1. Second sales of radios bought fromcustomers in 1959-60 ... 14,924-732. Photo house studio receipts ... 2,023-30
2. During the year of assessment, under item 5 of the First Schedule to the Madras General Sales Tax Act, 1959, radios were assessable at the point of first sale in the State at the rate of 7 per cent. The assessee was able to show the prior history of his transactions in second-hand radios, from which it appeared that Rs. 4,619 represented really second sales. But in regard to the balance, he was unable to substantiate his contention, and therefore he was assessed as the first dealer in respect of the balance. This is item (I) above. In regard to the second item, the contention of the dealer (assessee) was that they were only contracts for work and labour and not sales of goods, and, therefore, not assessable to tax. The Joint Commercial Tax Officer, the Appellate Assistant Commissioner and finally the Sales Tax Appellate Tribunal, who examined the claim of the assessee at the several stages of assessment, appeal and further appeal, disallowed his claim and the assessee has come to this Court in revision.
3. The petitioner-assessee contended in regard to the first item in dispute, that it represented sales of old second-hand radio sets which the assessee had purchased in exchange for new radio sets sold by him to customers, and that therefore they should not be assessed as first sales in the State, in his hands. He also urged that the authorities below applied the presumption under Section 10 of the Madras General Sales Tax Act, 1959, wrongly. That section says that the burden of proving that any dealer or any of his transactions is not liable to tax under the Act shall lie on the dealer. According to the learned Counsel appearing for the assessee, the department had to establish at the outset, by some reasonable material or evidence that the sales in question were actually first sales in the State, and the position ought not to be presumed ab initio in favour of the department. He contended that the charging section, Section 3(2) of the Act of 1959, which reads : 'Notwithstanding anything contained in Sub-section (1) in the case of goods mentioned in the First Schedule, the tax under this Act shall be payable by a dealer, at the rate and only at the point specified therein on the turnover in each year relating to such goods whatever be the quantum of turnover in that year,' itself would imply an obligation on the department to prove in the first instance, that the sales in question were first sales. Only after that initial burden is discharged by the department, can Section 10 be applied calling upon the assessee to prove the exemption in his favour. Learned counsel called to his aid the decision in Kundan Lal v. Custodian, Evacuee Property A.I.R. 1961 S.C. 1316, dealing with a presumption under Section 118 of the Negotiable Instruments Act and also the decision in Collector of Customs v. Sampathu Chetty : 1983ECR2198D(SC) , a case under the Sea Customs Act. He also referred to the fact that the old Sales Tax Act of 1939 embodied in the second proviso to Section 3(2)', a clause laying the burden on the assessee to prove that the sale was not a first sale. The assessee's learned Counsel mentioned that the burden of proof stated in the above manner, in the second proviso to the old charging section (Section 3) had been given up, and in the 1959 Act, the rule as to the burden of proof is only as laid down in Section 10. On the other hand, the learned Government Pleader referred to Section 5B of the 1939 Act, which stated that the burden of proving that any dealer or any of his transactions was not liable to tax under Section 5 or Section 5-A shall lie on such dealer. Section 5 and Section 5-A dealt with transactions either exempt from tax or assessable at a single point. It appears to us that under the charging provision in the Sales Tax Act, whether under the 1939 Act or under the 1959 Act, the turnover of sales of goods as denned in the respective enactments, is liable to sales tax--vide Section 3(I) of both the new Act as well as the old Act--and that the benefit of assessability only at a single point and non-assessability at other points is really in the nature of an exemption, and the burden of proving that this exemption is available to him is laid on the dealer. The reason for it is obvious. In almost all cases, the question whether a sale is a first sale or a second sale will be primarily a question of fact. This will be entirely within the special knowledge of the dealer, and it is for him, who is in possession of the material facts to supply them. Such an obligation of discharging the burden of proof can be deduced from Section 106 of the Indian Evidence Act, apart from Section 10 of the Sales Tax Act. What Section 10 lays down is, therefore, the same broad principle enunciated in Section 106 of the Evidence Act, that the onus is on the person who is in possession of special facts exclusively within his knowledge, to disclose them to the Court, when he seeks to obtain any benefit for himself on the basis of proof of those facts. In our opinion, Section 10 in the 1959 Sales Tax Act, only consolidates the provisions in the 1939 Act about the burden of proof found both in Section 3(2), second proviso, and also in Section 5-B.
4. In the present case, the assessee-dealer was in a position to supply the necessary facts which would prove that his sales were second sales in regard to a turnover of only Rs. 4,000 and odd. Because he failed to disclose similar facts in respect of the disputed turnover, he was assessed in respect of it. If the dealer had been careful, he could have obtained from the persons, who sold these radios to him, the particulars of the prior purchase, whether they were purchased in Madras from other dealers or whether they were purchased from dealers outside the Madras State. In the case of the latter, the turnover in the hands of the assessee even though it related to second-hand radios sold, will be first sales in the State. Even assuming that the particular customer was not able to preserve the original purchase bill, the assessee could have obtained an affidavit or a declaration from him then and there, regarding the anterior history of the radio. In view of his failure to furnish these essential particulars, the levy on him on the disputed turnover has to be upheld.
5. Taking up the second point--Photo house studio receipts--the turnover is a small sum of Rs. 2,023-30 nP. Learned counsel for the petitioner-assessee has raised an important point that the supply of photos and photo copies by a professional photographer to his customers, is really for the execution of a work of art, and that the bargain by the photographer with his customers, is really a bargain for work and labour and not for sale of specific goods or chattels. In this connection, we were taken through the early English cases dealing with the distinction between a bargain for sale of goods and a contract for work and labour. Clay v. Yates 156 E.R. 1123 was a case where a printer agreed to print for the defendant in that case 500 copies of a treatise at a certain price per sheet including paper. Pollock, C. B., observed that even in the case of a work of art, whether in gold, silver, marble or plaster, where the application of skill and labour was of the highest description, and the material was of no importance as compared with the labour, it would be a case of work, labour and materials and the case of the printer was a contract for work, labour and materials. Martin, B., another Judge, who took part in the decision, observed that the book might not be worth half the value of the paper on which it was printed, but he would be entitled to recover for his work, labour, and materials supplied and this is in strictness work, labour, and materials done and provided by the plaintiff for the defendant. In Lee v. Griffin (1861) 30 L.J.Q.B. 252 a contract to make a set of artificial teeth to fit the mouth of the customer was the bargain that came up for examination. The Court of the Queen's Bench came to the conclusion that it was a contract for the sale of goods and not a contract for work, labour and materials. The Judges who dealt with the case in Lee v. Griffin (1861) 30 L.J.Q.B. 252, were of the opinion that the decision in Clay v. Yales 156 E.R. 1123 turned upon the peculiar circumstances of that case and that it would apply only to a case where a precisely similar situation would arise. Crompton, J., observed :
I do not agree with the proposition, that whenever skill is to be exercised in carrying out the contract, that fact makes it a contract for work and labour, and not for the sale of a chattel.... In the present case the goods to be furnished, viz., the teeth, are the principal subject-matter; and the case is nearer that of a tailor, who measures for a garment and afterwards supplies the articles fitted.
6. In Robinson v. Graves [1935] 1 K.B. 579, another decision cited in this connection, the plaintiff, an artist, was commissioned by the defendant to paint the portrait of a lady and was promised 250 guineas therefor. The defendant subsequently repudiated the contract before the portrait was completed. When the plaintiff sued for the agreed price of the portrait, the King's Bench held that the contract was one for work and labour and not for the sale of goods as the substance of the contract was that skill and labour should be exercised upon the production of the portrait and that it was only ancillary to that contract that there would pass from the artist to his customer some materials, viz., the paint and the canvas in addition to the skill and labour. The Judges distinguished the facts of the case in Clay v. Yales 156 E.R. 1123 and the facts in Lee v. Griffin (1861) 30 L.J.Q.B. 252 and came to the conclusion that on the facts of the particular case their finding was justified. However, it is interesting to point out that Slesser, L. J., who took part in the decision in Robinson v. Graves [1935] 1 K.B. 579 expressed his opinion thus:
I will guard myself, however, by saying that I only decide this case upon its own particular facts. There may be cases where portraits are ordered in circumstances which would constitute the contract one for the sale of a picture as a chattel. In the circumstances of this case, however, where the portrait of a specific lady was ordered to be painted, and where, I think, the defendant who gave the commission impliedly contracted that the lady should give sittings in order that the work might be executed, I think it is impossible to say that the mere ultimate delivery of the picture would constitute a sale of goods.
7. Greer, L. J., also added his view :
I...would like to add that in deciding as we have done we are not deciding anything which is necessarily contrary to the decision of Mathew, J., in the shortly reported case of Isaacs v. Hardy Cab. & E. 287, which dealt with a contract of a very different kind, namely, where a picture dealer, whose sole object was to acquire something which he might sell in his business, engaged an artist to paint and deliver to him a picture of a given subject at an agreed price. It must not be taken that we are in any way overruling the case, or deciding whether it was right or wrong.
8. Again in J. Marcel, Ltd. v. Tapper [1953] 1 A11 E..R. 15, the defendant ordered from the plaintiffs a mink jacket for his wife. After inspecting several skins he chose a colour and selected a style for the jacket. The price was 1950. After referring to the decisions in Lee v. Griffin (1861) 30 L.J.Q..B. 252 and Robinson v. Graves [1935] 1 K.B. 579, the learned Judges observed (page 16) :
A high degree of skill and craftsmanship goes into the making up a fur jacket such as was made for the defendant in this case, but it was no more than making an article for sale to the defendant on his special order. I cannot discover anything to distinguish this from the case of an ordinary article which it is part of someone's business to supply and which he makes up to special measurements for the customer. It requires skill, labour and materials to make it, but the purpose of the transaction is the supply of the complete article and the receipt of the price.
9. The transaction in the above case was, therefore, treated as a sale.
10. Benjamin on Sale (eighth edition) has referred to the early English decisions and observed that 'the dividing line will be in many cases a difficult one to draw. The rule suggested in Lee v. Griffin (1861) 30 L.J.Q..B. 252 by Blackburn, J., may have been a simple and clear cut principle, but life is not clear cut and is not in such water-tight compartments as the universal application of such a rule would require '. Therefore, the learned commentator observed that 'not merely the result of the contract but the intention of the parties must be considered. Was the purpose and intention of the parties to transfer a chattel (when made) or to employ labour and materials to produce a result The difference may perhaps be illustrated by a man who goes to an artist and says : ' paint my portrait' and one who goes into an artist's studio or an art shop and says ' sell me a picture '.
11. It appears to us that when a customer, who goes to a photographer's studio and engages the photographer's services to take a picture, he is bargaining not merely for the special skill which the photographer (he might be a person of very high skill in his trade) has, to produce a negative, but also to supply from that negative as many copies of the finished positives as the customer may require. There may be cases, for example, of students in a college, engaging a photographer to take photographs at a ' break-up social ' and supply as many copies of the group photograph as there are students. The number of copies may sometimes run to hundreds. There cannot be any analogy between such a case and the case, for example, dealt with in Robinson v. Graves [1935] 1 K.B. 579 where an expert artist was engaged to paint the portrait of a lady. The test to be applied in such cases is also not the difference between the value of the materials and the value of the labour employed, as pointed out by Lord Reading, C.J., in Rex v. Wood Green Profiteering Committee 89 L.J.K.B. 55, : ' The cases of Lee v. Griffin (1861) 30 L.J.Q..B. 252 and Isaacs v. Hardy Cab. & E. 287, shew that to determine whether or not there has been the sale of an article the value of the labour as compared with that of the materials, cannot be taken into account.
12. Further, when the number of copies to be taken from a negative runs to large numbers, the value of the bromide paper used for the copies does play an important part in the price of the copies. One case that directly dealt with a photographer's work came up for consideration in Australia in the decision in Federal Commissioner of Taxation v. Riley Cab. & E. 287. In that case no question as to the sale or sale value of the photographs was raised, because the learned Judges observed : ' That the transaction is a sale is not, and doubtless could not, be disputed.' They were concerned with the question whether an element of manufacture was involved in the production of photographs, because under the Australian enactment sales tax was levied upon the sale of goods manufactured in Australia. Nevertheless, certain observations of the learned Judges, which have a direct bearing on the question whether a photographer's work involves a contract for labour and materials or sale of goods, may be quoted (page 79):
The end of the organised business of a portrait photographer is to produce as many copies of a picture as his customer will buy, and to sell them to him with a view to profit. It differs from many other productive arts in the fact that its products must be designed in each case for one individual, and in its attempt to secure some aesthetic value. But it is a process practised commercially to produce an article which will be bought. A tailor must attempt to fit his individual customer and the manufacturer of ornaments might claim that his designs had an aesthetic purpose.
13. It may also be worthwhile to point out that a commercial photographer does not surrender his negative to the customer, but keeps it in his stock so that the customer, at any future time, when he wants more copies, can come and indent upon the photographer for the purpose. This also would show that the bargain is for supply of copies as finished goods and not for a contract of labour.
14. The Patna High Court followed the decision in Federal Commissioner of Taxation v. Riley (1935] 53 C.L.R. 69 as well as an earlier decision of the Madhya Pradesh High Court reported in D. Masanda & Co. v. Commissioner of Sales Tax [1957] 8 S.T.C. 370 in M. Ghosh v. State of Bihar [1961] 12 S.T.C. 154.
15. In this High Court, in D. P. Roy Chowdhury v. State of Madras [1962] 13 S.T.C. 866, Veeraswami, J., had to decide whether the well-known pieces of statuary in the Madras Marina, ' Triumph of Labour' and of Mahatma Gandhi, carved by the famous sculptor D. P. Roy Chowdhury were sold by him to the Government of Madras and whether he was liable to pay sales tax on the price. The learned Judges held on the facts, that the petitioner (sculptor) was not a dealer and that in supplying the two pieces of sculpture, he did not effect sales of them in the course of trade or business in such casts, and therefore he was not liable to sales tax: The circumstances of that case are clearly distinguishable, when we deal with a professional photographer, who takes a photograph, prepares a negative and then sells to his customer a large number of copies prepared out of that negative. In V. K. Baraskar v. State of Madras [1963] 14 S.T.C. 615, Jagadisan, J., delivering the opinion of the Bench, had to deal with a case where an assessee was engaged in drawing pictures for remuneration and handing them over to business firms of printers, who thereafter printed them in hundreds and thousands of copies for sale or presentation. Adopting the principle laid down in the English decisions and following the decision of Veeraswami, J., in D. P. Roy Chowdhury v. State of Madras [1963] 14 S.T.C. 615, the learned Judge held that the artist in that case did not effect sales of the pictures he painted or drew. That case again is distinguishable from the one we have to deal, where the assessee is a photographer doing on a commercial scale the business of studio photography.
16. We, therefore, confirm the order of the Tribunal in regard to the disputed turnovers. The revision case is, therefore, dismissed. No costs.