2008 (7) TMI 266 - HC - VAT and Sales Tax

If the software whether customized or non-customized satisfies the Rules as a goods , it will also be goods for the purpose of Sales Tax. Unbranded / customized software developed and sold by the petitioner with or without obligation, for system upgradation, repairs and maintenance or employee training are Goods within Art. 366(12) of the Constitution of India r/w Sec. 2(d) of the Central Sales Tax Act 1956

Summary

Issues:
1. Determination of whether unbranded/customized software developed and sold by the petitioner qualifies as 'Goods' under relevant tax laws.
2. Challenge to the orders passed by the first respondent regarding the petitioner's entitlement to issue Form 'C' for certain purchases.
3. Challenge to the consequential order issued by the Commercial Tax Officer denying the petitioner's request for 'C' Form.
4. Interpretation of the Supreme Court judgments in Tata Consultancy Services case and subsequent cases regarding the classification of software as 'goods' for sales tax purposes.

Analysis:
1. The petitioner sought a declaration that their unbranded/customized software constitutes 'Goods' under the Central Sales Tax Act and Tamil Nadu General Sales Tax Act. They argued for entitlement to beneficial provisions under relevant laws for export purposes. The High Court noted the previous judgments and correspondence between the parties. The Court considered the Supreme Court's judgment in Tata Consultancy Services case, where the majority opinion held branded software as 'goods' but did not address unbranded software. However, a concurring opinion by S.B. Sinha, J., emphasized that software, if meeting certain attributes, qualifies as 'goods' for sales tax purposes.

2. The challenge in W.P. No. 38545 of 2005 was against the order passed by the first respondent, which was based on the earlier judgment of the Supreme Court. The Court highlighted the necessity to consider the subsequent pronouncements of the Supreme Court, which affirmed the view that software, whether customized or non-customized, can be classified as 'goods' if it meets specific criteria. The Court set aside the impugned order dated 31.10.2005 in light of the binding precedent.

3. In W.P. No. 38546 of 2005, the challenge was to the consequential order issued by the Commercial Tax Officer denying the petitioner's request for 'C' Form. The Court directed the setting aside of this order along with the order challenged in W.P. No. 38545 of 2005, based on the correct interpretation of the law as per the subsequent Supreme Court judgments.

4. The judgment extensively discussed the legal position regarding the classification of software as 'goods' for sales tax purposes, citing relevant Supreme Court judgments and emphasizing the correct approach to determining what constitutes 'goods.' The Court relied on the concurring opinion in the Tata Consultancy Services case and subsequent cases to establish that software, whether customized or not, can be considered 'goods' if it fulfills specific attributes. The Court directed the respondents to act in accordance with the dicta laid down by the Supreme Court in handling the petitioner's requests.