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2020 ] TATA CONSULTANCY SERVICES v. COMMISSIONER OF TRADE TAX, U.P. 15
grounds in the grounds of appeal was not correct and instead of moving applica-
tion for additional ground the assessee should have amended his appeal.
23. He also submitted that whatever information was required by the
assessing officer in pursuance to the show cause notice was given by the assessee
Company as such the imposition of tax liability on the services so provided for
the software development and rendering support service to its client was unjusti-
fied, treating it to be a sale.
24. Per contra, Sri Bipin Kumar Pandey, Learned Standing Counsel ve-
hemently argued and submitted that the revisionist-assessee failed to bring on
record any material to prove that he was in the work of developing application
software for his client and it was unbranded software and no agreement was
filed before the assessing authority or till the stage of Tribunal to substantiate
their claim. Sri Pandey submits that it is for the first time before this Court that
the revisionist-assessee has come up with a case that the applicant had entered
into an agreement for consultancy services with various Government, Semi-
Government bodies as well as banks. He invited attention of the Court to the re-
ply submitted by the assessee firm and submits that nowhere it has been stated
or any document appended so as to substantiate the claim of development of
software for its client. He also submits that the notice dated 13-2-2004 issued by
the assessing authority categorically stated that the assessee was required to
submit the sales made by it within and outside the Uttar Pradesh to its client.
25. Sri Pandey had invited attention of the Court to paragraph 29 of the
judgment of the Apex Court in the case of Tata Consultancy Services (supra)
wherein it was stated that even unbranded software when it is marketed/sold
may be goods and as the Apex Court was not dealing with this aspect as such it
did not express any opinion in regard to unbranded software because question
like situs of contract of sale and/or whether the contract is a service contract may
arise.
26. He emphasised that as the Apex Court had also not gone into this
question of unbranded goods as there was no material before it and the same
was based upon the agreement or contract between the assessee and its client.
While in instant case, no agreement or contract was brought into the knowledge
of either the assessing authority, first appellate authority as well as before the
Tribunal by the assessee, as such no relief can be granted.
27. Sri B.K. Pandey in his usual fairness submits that the assessee
though had brought the bank account and the bills, and relevant documents be-
fore the assessing authority, but the claim of the assessee could have been sub-
stantiated from the contract/agreement so entered between him and his client,
and whether the goods claimed as unbranded software developed for client be-
ing a service and not amenable to tax. He submits that as for the first time as-
sessee has brought on record the various agreements so entered during the rele-
vant period and the matter should be relegated to the Tribunal as it being the last
fact finding Court to go into the question which has been left open by the Apex
Court in the case of assessee itself and the same be decided on the basis of mate-
rial so adduced before it.
28. Sri Tarun Gulati in rejoinder submits that in reply filed by the as-
sessee to show cause notice, had categorically stated that in case any further de-
tails are required the assessee was ready to provide the same. He submitted that
through the said detailed reply the assessee had distinguished the query so

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