Page 70 - GSTL_3rd September 2020_Vol 40_Part 1

4 GST LAW TIMES [ Vol. 40
this regard has already been made to respondents on 27-7-2020 (P-9), however no
action on said representation has been taken till date.
3. On the last date of hearing Mr. Bindlish had sought a day’s ad-
journment to seek instructions regarding consideration of contents of the repre-
sentation dated 27-7-2020 (P-9) with regard to re-classification of ASU ingredient
based sanitizers.
4. Today, he on instructions submits that the representation dated 27-7-
2020 (P-9), if already submitted, shall be forwarded to the establishment of the
GST Council for appropriate consideration in accordance with law.
5. Disposed of accordingly.
6. It is hoped that the same shall be taken up for consideration by the
Council at the earliest, considering the issue involved.
_______

2020 (40) G.S.T.L. 4 (All.)
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

Rohit Ranjan Agarwal, J.
TATA CONSULTANCY SERVICES
Versus
COMMISSIONER OF TRADE TAX, U.P.
Trade Tax Revision No. 1566 of 2006, decided on 4-4-2019
Software - Unbranded software, i.e., specialised and exclusively tailor
made to customers particular requirement - No agreement or contract was ever
filed or brought to the notice of Assessing Authority or Appellate Authority by
the assessee - Agreement executed between assessee and its clients placed for
the first time before this Court in exercise of revisional jurisdiction - Also ad-
ditional ground raised before Tribunal in regard to sale of computer hardware
to P.W.D. which is exempted under Section 3A of U.P. Trade Tax Act not taken
into consideration even though Tribunal is the last fact finding Court - Order
passed by Tribunal set aside and matter remitted back to Tribunal to record
specific finding after going through the agreements/contract as to the claim of
the assessee in regard to the application of Software Development and Sup-
port service given to its client as unbranded software not covered under the
definition of goods and is a service to the customers. [paras 36, 41, 42, 43]
Service Tax and Value Added Tax whether excludes each other - Sale
and service - Service Tax and U.P. Trade Tax Act operate in different areas and
unless work contract involves an element of sale of goods, State Legislature
has no power to Levy Tax under the said Act - Similarly Parliament also has no
power to levy Service Tax on sale of goods - Where any assessee is carrying on
both the work of sale of software and development of software, then As-
sessing Authority has to distinguish and identify between the two in such a
harmonious way so as to uphold the right of both the Legislation to levy tax,
which falls within their respective area for arriving at such conclusion. [para
37]
Case remanded

GST LAW TIMES  3rd September 2020  86