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2021 (8) TMI 591 - HC - Service TaxLevy of service tax - taxable service or not - appellant developed anti virus software in the name of 'K7 Total Security' and 'K7 anti virus' - vires of Section 65(105)(zzzze) of Chapter V of the Finance Act, 1994 - HELD THAT - Hon'ble Division Bench of this Court in the case of INFOTECH SOFTWARE DEALERS ASSOCIATION VERSUS UNION OF INDIA AND OTHERS 2010 (8) TMI 13 - HIGH COURT OF MADRAS where the said decision of the Hon'ble Division Bench of this Court has dealt with all issues in a comprehensive manner though the prayer sought was for a declaration and such declaratory relief was sought for by the members of an association, who are all software dealers/developers. The definition of 'information technology software' is wide enough to bring within its fold the anti virus software, which has to be obviously installed in the hardware and it would interact whenever the user of the computer engages the system. Therefore, the learned Single Judge is right in holding that the stand taken by the appellant herein does not merit consideration. Appeal dismissed.
Issues:
Challenge to Order-in-Original demanding service tax on anti-virus software development. Analysis: The appellant challenged the Order-in-Original demanding service tax on anti-virus software development, arguing that the software developed by them did not provide any taxable service. The appellant contended that the software fell outside the definition of 'information technology software' under Section 65(53a) of the Finance Act, 1994, as it was not capable of manipulation or providing interactivity to the user. However, the learned Single Judge, after considering the appellant's arguments, held that the anti-virus software indeed fell within the definition of 'information technology software' as per the Act. The Judge also referenced the decision in the case of Infotech Software Dealers Association (ISODA) Vs. Union of India, where it was established that the definition of 'information technology software' was broad enough to include anti-virus software that interacts with the user's computer system. The appellant's counsel argued that the decision in the ISODA case only addressed the validity of a specific provision and did not encompass the issue of whether the anti-virus software provided by the appellant constituted a taxable service. However, the Court disagreed with this argument, emphasizing that the ISODA decision comprehensively addressed all relevant issues, even though the relief sought was a declaration. The Court concluded that the definition of 'information technology software' encompassed anti-virus software, which interacts with the user's computer system upon installation. Consequently, the Court found no merit in the appellant's stance and upheld the decision of the learned Single Judge. In light of the above analysis, the Court dismissed the writ appeal challenging the Order-in-Original demanding service tax on the appellant's anti-virus software development. The Court found no grounds to interfere with the decision of the learned Single Judge and consequently dismissed the appeal, along with the connected CMP, without imposing any costs.
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