The appellants provide, inter-alia, computer consultancy services and also sell custom-made software which are uploaded on the computers of the customers (uncanned software) and computer software packages off-the-shelf (canned software). The appellants are licensees for the canned software since the owner thereof is another person. In case of canned software, the assessing officer under the AP General Sales Tax Act held that they were “goods” liable to sales tax. The first appellate authority, Tribunal as well as the High Court dismissed the appeal of the appellants.
Whether canned software are “goods” liable to sales tax?
The appellant’s contention before the Court was that “canned software” is nothing but a series of commands issue to the hardware of the computer that enables the computer to complete a designated task. To make this task effective, the sequence of instructions is required to be stored physically on a magnetic medium such as CD-ROM, Floppy Disc, etc. Software comprises of programs, data and documents. It is an intellectual property and not any commodity covered by definition of “goods” under either APGST Act or Constitution. They are intangible goods which are not perceived as “goods”. The magnetic tapes or discs are only means of transmitting the intellectual creations from the originator to the user. The job of transmission could have been done by personal instructions of the originator in which case there would not have been any goods or tax thereon. Therefore, they are not goods. Upon sale of disc or floppy, there is no transfer of all the rights that the owner has. For example, right to produce and sell more copies, right to change the underlying work, right to license its use to others, right to transfer the copyright itself. These are incorporeal incidents which are not transferred along with the medium like disc/floppy.
On the other hand, the revenue argued that the term “goods” was very wide and included tangible as well as intangible goods. The properties which are capable of being abstracted, consumed or used and/or transmitted transferred, delivered, stored or possessed are “goods” for the purpose of Sales Tax Act.
Various judgements referred to bring home the point that even intangible/ incorporeal properties are goods.
CST v. M P. Electricity Board (1969) 1 SCC 200 (SC)-Electricity is goods.
- Anraj and Govt. of TN (1986) 1 SCC 414 (SC)-Beneficial right in a lottery ticket is goods.
State of A. P. v. National Thermal Power Corporation Ltd (2002) 5 SCC 203(SC)-Electricity is goods.
Associated Cement Companies Ltd. v. Commr. of Customs (2001) 4 SCC 593 (SC) – Technical material in the form ofdrawings, manuals, discs etc are goods.
The Court observed that there is no difference in a book, canvas painting, music cassette and software package on a disc. In all such cases, intellectual property is incorporated on a media for transfer. Thus, it is held that branded or unbranded software are goods provided they have the characteristics of being bought and sold, transferred, transmitted, possessed, stored etc. The Court also observed that it was not required to comment upon unbranded/customized software because in such case, questions like situs of the contract of sale and whether the contract is service contract can arise.
Per S. B. Sinha J. (concurring)- Considering the definition of “goods’ under Article 366(12) of the Constitution, Sec. 2(1)(h) of the APGST Act, Sale of Goods Act and dictionary meaning, it was inferred that it covers all intangible and tangible goods as also corporeal and incorporeal goods, commodities, materials and articles. The judgments of American courts were also considered to observe that software is treated as “goods” even by these Courts. An article written by Linda A. Sharp,
J.D. titled “Computer Software or Printout Transactions as Subject to State Sales Tax or Use Tax” noted the development in technology and law and observed that tape containing a copy of canned program does not lose its tangible character because its content is a reproduction of the product of intellectual efforts and is comparable to a phonorecord which does not become intangible because it is reproduction of product of artistic efforts. The article referred to a number of decisions treating software as goods.
The Court observed that form of delivery of software, magnetic tape or electronic transfer via modem, is of no relevance. Software is ultimately recorded and stored in physical form on a physical object. The essence of the transaction was not merely to obtain intangible knowledge or information but to obtain recorded knowledge stored in some physical form which transforms it into a
corporeal property. The software when loaded on a physical medium becomes a marketable commodity and hence “goods”provided it has attributes like
(a) its utility (b) capable of being bought and sold (c) capable of being transmitted, transferred, delivered, stored and possessed. If a software, whether customized or not customized, satisfies these tests, it has to be treated as “goods”. [CA Nos. 2582 of 1998 and2584-86 of 1998 dt. 05-11-2004]
Editorial. Branded/canned software are treated as “goods” whereas the question relating to unbranded/customized software is not decided. Under GST law, development, design, programming, customization, adaptation, upgradation, enhancement, implementation of information technology software is treated as “service” as per entry 5(d) of the Schedule II. But branded software continue to be goods.
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