9911796707
TMI Blog2007 (3) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... five years. 3. The assessee had started a computer training centre in collaboration with NIIT Ltd., New Delhi. Pursuant to the agreement dated February 10, 1995, the assessee had to give a technical know-how fee to M/s. NIIT Ltd. The assessee paid the technical know-how fee in terms of the agreement for getting technical assistance from NIIT Ltd. in the field of processes, practices, techniques, procedures relating to site selection and evaluation, architectural plans and drawings, equipment specifications, assistance in selection of marketing and technical staff, support during the launch of operation etc. scheduling and administering education and methods and procedures of examining the standards attained by students, on-going marketing and technical support, special methods of using certain common educational aids, provision of technical reference material relating to the form and content of education and precommencement training of faculty, which is confidential to and owned by the licensor. 4. By virtue of article 2 of the agreement, the licensor is the NIIT Ltd. and the licensee is the present assessee. The Assessing Officer has not permitted to debit the said amount and tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ineral deposits (including the searching for, discovery or testing of deposits or the winning of access thereto)." 9. Keeping in view the aforesaid Explanation, if the activities of the present assessee are taken into account then the assessing authority has not held in his assessment order that the information which is received is likely to assist in the manufacturing or processing of goods or in the working of a mine, oil well or other sources of mineral deposits, etc. The Assessing Officer in his order of assessment has taken into account the activities which are carried out by the assessee. The nature of activities carried out by the assessee is reflected in paragraphs 5 and 5.1 of the order of assessment passed by the Assessing Officer. The said activities have also been considered b the Commissioner of Income-tax (Appeals) in his order annexure A-2 in paragraph 7.1 thereof, keeping in view the activities run by the as the appellate authority concluded that NIIT provides basic software and also trains their teachers who ultimately are responsible for coaching the students enrolled in their colleges and so section 35AB was not applicable. This aspect of the matter was also con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the definition of the words "technical know-how". The judgment so relied upon by learned counsel for the appellant relates to the case where intellectual property was under consideration for the purposes of the Sales Tax Act and also for the purposes of article 366(12) of the Constitution of India. The apex court held that intellectual property (soft ware) shall also be "goods". Therefore, for the purposes of sales tax it being goods, sales tax is chargeable. In this context, paragraphs 78, 79 and 80 of Tata Consultancy Services v. State of A. P. [2004] 271 ITR 401 (SC); [2005] 1 SCC 308 would be relevant. The apex court has held that once the provision in the statute which has a reference shall be taken into account in a case when there, is no ambiguity. The definition of the words "technical know-how" by treating it to be an intellectual property as "goods" may be taxable for the purposes of sales tax. The question is whether the same is permissible for the purposes of taxing it under the Income-tax Act. The definition as such is clear. While interpreting, the language used in a taxing statute which has the context has to be interpreted in the manner in which it is provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the applicability and also to understand the expression of the Legislature used while enacting the law. 15. The apex court in Balasinor Nagrik Co-op. Bank Ltd. v. Babubhai Shankerlal Pandya, AIR 1987 SC 849, in paragraph 4 (page 851) held as under: "It is an elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it. For, the principle that the statute must be read as a whole is equally applicable to different parts of the same section." 16. The apex court in Orient Paper and Industries Ltd. v. State of M. P. [2006] 12 SCC 468, 475; [2006] ILR (MP Series) 170 considering the earlier judgments passed by the apex court has observed that the plain or unambiguous and clear meaning of the statute which gives only one meaning has to be given effect to irrespective of its consequences. The apex court in paragraphs 26, 27, 28 and 29 observed as under "26. When the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, courts are bound to give effect to that meaning irrespective of consequences. (See : State of Jharkhand v. Govind Sing [2005] 10 SCC 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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