J.N. SARMA, J- This writ application has been filed challenging the legality of the notice dated 2nd April 1997 issued by the Superintendent of Taxes, Unit-B, Panbazar, Guwahati directing the petitioner to show cause as to why steps for prosecution under Section 60 and p61 of the Assam General Sales Tax Act, 1993 should not be taken for committing the offence of not disclosing the value of the works contract of processing and supplying of photographs, photo prints and photo negatives etc. in Part G of the annual return for the assessment year 1995-96 and for not depositing the tax as due under the Assam General Sales Tax Act, 1993. Further, the assessment order dated 29.4.97 passed by the Superintendent of Taxes, Unit-B, Panbazar for the assessment year 1995-96 levying tax on the works contract of processing and supplying of photographs, photo print and photo negatives is also challenged. Further the validity of the notice dated 20th May, 1997 directing the petitioner to make payment of the demanded dues for the assessment year 1995-96 in three equal instalments is also has been challenged. 2. In order to appreciate the first controversy, paragraph 3 of the writ application is quoted below : "That the petitioner No. 1 is running a colour photo laboratory and undertakes the job of developing photographs belonging to the customers and the same does not have any market value. In a case where photographs are taken by the petitioner No. 1 it is so done with the employment of the special skill. Photographs supplied by the applications are neither goods nor marketable commodity." 3. The question which arises for determination is whether the job rendered by photographers in taking photographs, developing and printing works would mean to a works contract as contemplated under Article 366(29A)(a) and (b) of the Constitution read with the definition of sale under Assam General Sales Tax Act, 1993. The question which arises for determination is whether the job rendered by photographers in taking photographs, developing and printing works would mean to a works contract as contemplated under Article 366(29A)(a) and (b) of the Constitution read with the definition of sale under Assam General Sales Tax Act, 1993. The definition of sale as is available under Section 2 (33) of the Assam Act is quoted below :- "'sale' with all the grammatical variations and cognate expressions means any transfer of property in goods by any person for cash, deferred payment or other valuable consideration, and includes - (i) any transfer otherwise than in pursuance of a contract of property in any goods for cash, deferred payment or other valuable consideration; (ii) any transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract." Article 366(29A)(a)(b) of the Constitution is quoted below :- "(29A) 'tax on the sale or purchase of goods' includes - (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract." Section 2(38) of the Act defines "works contract". That also is quoted below :- "works contract" means and includes any agreement for carrying out - (i) The construction, fitting out, improvement or repair of any building, road, bridge, dam or other immovable property; or (ii) the installation, fabrication, assembling, commissioning or repair of any plant or machinery, whether or not affixed to any building or other immovable property; or (iii) the overhauling or repairing or dismantling of - (a) any motor vehicle, (b) any sea-going vessel, (c) any other vessel propelled by mechanical means, (d) any aircraft, or (e) any equipment or necessary part of any of the aforesaid items; or (iv) The fitting out or fabrication, assembling, altering, or reassembling, blending, furnishing, improving, processing or otherwise treating or adapting any goods; and (v) the supply of goods and provision of know-how, designs, labour supervision, inspection, training or other services in connection with any of the operations mentioned in sub-clauses (i) to (iv) above. Charging section is Section 8 and clause (e) is relevant for the controversy in question. Charging section is Section 8 and clause (e) is relevant for the controversy in question. That is quoted below : "(e) In respect of any transfer of property in goods (whether as goods or any other form) involved in a works-contract of the nature specified in Schedule VI, at the rate or rates specified in the Schedule; So, the whole question is that whether under the provisions of the Act as quoted above, the authority can impose sales tax on the business turn over of the photographers. 4. As pointed out by the Apex Court in (2000) 2 SCC 385 (Rainbow Colour Lab and another Vs. State of M.P. and others), prior to the 46th Constitutional amendment, this question was settled in favour of the assesses by the judgment of the Apex Court in the case of STO Vs. B. C. Kame (1977) 1 SCC 634 . Taking advantage of the 46th Amendment of the Constitution and the consequent amendment to the definition of 'sale' in the Section quoted above, the authority issued notices holding that the job done by the photographers amounted to 'works contract' and turnover from such work would be exigible to the levy of sales tax. 5. This question is long res integra in view of the following two decisions :- (i) (2000) 2 SCC 385 (supra) where the Supreme Court relying on its earlier judgment pointed out what is sale and works contract. That part of the judgment is quoted below :- "Mere passing of property in an article or commodity during the course of performance of the transaction does not render the transaction to be transaction of sale. Even in a contract purely of works or service, it is possible that articles may have to be used by the person executing the work, and property in such articles or materials may pass to the other party. That would not necessarily convert the contract into one of sale of those materials. Even in a contract purely of works or service, it is possible that articles may have to be used by the person executing the work, and property in such articles or materials may pass to the other party. That would not necessarily convert the contract into one of sale of those materials. In every case, the court would have to find out what was the primary object of the transaction and the intention of the parties while entering into it." Thereafter in paragraph 15, the law has been laid down as follows :- "Thus, it is clear that unless there is sale and purchase of goods, either in fact or deemed, and which sale is primarily intended and not incidental to the contract, the State cannot impose sales tax on a works contract simpliciter in the guise of the expanded definition found in Article 366(29A)(b) read with Section 2(n) of the State Act. On facts as we have noticed that the work done by the photographer which as held by this Court in Kame case is only in the nature of a service contract not involving any sale of goods." This also is the decision of the Division Bench of this Court reported in 2002 (1) GLT 276 (Vishwa Vimohan Jha Vs. State of Meghalaya and ors.). That was a case under the Meghalaya Finance (Sales Tax) Act and there also the same question was involved that whether the photo paper used in the printing of positive prints by the photographers in the course of their professional work involves a transfer or property in the goods on which Sales Tax is leviable and the Division Bench of the Court held that answer must be given in the negative. It was held by the Division Bench that the paper on which the photographs are developed or any materials used in the developing of a photograph cannot be subjected to Sales Tax and such businessman is not required to obtain registration under the Meghalaya Sales Tax Act. It was held by the Division Bench that the paper on which the photographs are developed or any materials used in the developing of a photograph cannot be subjected to Sales Tax and such businessman is not required to obtain registration under the Meghalaya Sales Tax Act. It was further held by the Division Bench that there is no sale or deemed sale when the paper on which the photograph was developed is passed to the customer as selling of that paper is not the dominant purpose in the labour contract and the work done by the photographer is only in the nature of a service contract not involving any sale of goods. 6. In that view of the matter, this writ petition is allowed and the impugned notices and the order of assessment as indicated above shall stand quashed. As usual in this case also the State of Assam did not file any affidavit-in-opposition. No record was produced. Only Mr. H.K. Mahanta, GA was present.