2014 (4) TMI 690 - HC - VAT and Sales Tax

Whether the Tribunal ought to be directed to raise the questions proposed - Whether Tribunal was justified to come to conclusion that software is developed by the Applicant and transferred to HDFC, Based on records in the form of invoice and work order, although the Applicant was acting for and on behalf of and under supervision of HDFC - Worthiness of questions to be raised - Development of software and its transfer while acting for and on behalf of and under supervision of HDFC - Held that - It is not necessary to entertain this application - The Tribunal has held that the provisions of the Copyrights Act were not brought to the notice of the Tribunal and that the appeal was argued on the basis of the provisions of the contract - This court find however that the questions sought to be raised at sr. nos. i, ii, iv and v are covered by the questions which have been raised especially at sr.no. vi - The question whether the appellant is entitled to raise the contentions u/s 17(1)(dd) of the Copy Rights Act, 1957 would arise for consideration of this court while dealing with question (vi) itself - Mere failure to mention a provision of law would not prevent the applicant from relying upon it in support of its contentions in the reference - Similarly, while deciding the reference in relation to question nos.(vi),(vii), (viii), it would be necessary for this court to construe the agreement between the applicant and the HDFC including clause (iii) thereof - It is therefore not necessary to direct the Tribunal to raise the questions other than those which have already raised - This Court do not read the order as holding that a transfer of any rights was effected even if the same did not vest in the applicant - The application is, accordingly, disposed of - Decided against assessee.

Summary

Issues:
- Whether the Tribunal should be directed to raise specific questions for reference to the court under Section 61 of the Bombay Sales Tax Act, 1959.

Analysis:
The judgment concerns an application under Section 61 of the Bombay Sales Tax Act, 1959, where the applicant was aggrieved by the respondent not raising certain questions for reference to the court. The Tribunal proposed questions (iii), (vi), (vii), (viii), and (x) for determination, while question (ix) was not pressed by the applicant. The applicant sought to raise questions regarding the Copyright Act, transfer of intellectual property rights, and the nature of the agreement between the parties.

The main contention was whether the Tribunal should be directed to raise questions proposed at serial numbers i, ii, iv, and v, which were not initially included by the Tribunal. The court found that the questions already raised, especially question vi, covered the essence of the additional questions sought by the applicant. The court emphasized that the failure to mention a specific provision of law did not prevent the applicant from relying on it during the reference process. The court noted that deciding questions vi, vii, viii would inherently involve interpreting the agreement between the applicant and HDFC, including clause iii.

Ultimately, the court ruled that it was unnecessary to direct the Tribunal to raise additional questions beyond those already proposed. The court clarified that the order did not imply a transfer of rights if they did not vest in the applicant. The application was disposed of based on the above considerations, providing clarity on the issues raised by the applicant regarding the interpretation of the agreement and relevant legal provisions.