Page 82 - GSTL_3rd September 2020_Vol 40_Part 1

16 GST LAW TIMES [ Vol. 40
raised in regard to the branded and unbranded software, i.e., the application
software development and support services provided by the revisionist Compa-
ny which does not fall within the definition of goods. He further relied upon the
1996 judgment where the Andhra Pradesh High Court held that the software
which is specialized and exclusively customs made to cater individual need of
the client is not goods. He further contended that had the assessing authority any
doubt in regard to treating such type of application software development as
goods, it should have sought further clarification for which the assessee was al-
ways ready to provide. He further contended that neither the assessing authority
nor the First Appellate Authority as well as the Tribunal asked the assessee to
establish his case on this ground as the Company had brought on record all the
material so available, with the authorities concerned and had relied upon the
judgments of various High Courts and Apex Court to substantiate its claim and
there was no doubt or ambiguity, which needed any further clarification.
29. Reliance was also placed upon judgment of Raza Textile Ltd. (supra)
wherein the Court held that burden to prove the fact regarding the sale was up-
on the Department. He submitted that if the assessing authority did not accept
the contention of the assessee it should have recorded a finding that the software
development and support services rendered by the assessee came under the
heading of branded goods. He further relied upon the judgment of this Court in
the case of Virendra Kumar Trading Co. v. Commissioner of Commercial Tax, 2017
(100) VST 192 (All) wherein the Court while dealing with reassessment proceed-
ings held that onus to establish that the disclosure was incorrect was upon the
Department and could not be shifted upon the assessee.
30. It is not in dispute that the assessee-Company is engaged in the
business of software. The revisionist provides consultancy services including
computer consultancy services and prepare a load on customers’ software and
also sell computer software packages off the shelf.
31. The sole dispute is in relation to the unbranded software also
known as uncanned software, which is being made liable to tax on the ground of
it being goods and covered under the branded software.
32. The revisionist-Company, which has number of units throughout
the country, and in one of its unit at Hyderabad the dispute arose in the year
1996 in regard to the branded software (canned software), which was decided by
the Andhra Pradesh High Court in the case of revisionist-Company, i.e., Tata
Consultancy Services (supra) holding that the branded software was covered un-
der the definition of goods and liable to be taxed. The Court, however, in its
judgment made distinction between the branded and the unbranded software.
However, it decided the matter in regard to the branded software. The said
judgment was challenged before the Apex Court which was upheld in 2005, as
regards the branded software while the matter regarding unbranded software
was left open by the Apex Court holding that in case of unbranded software oth-
er questions like situs of contract of sale and/or whether the contract is a service
contract may arise.
33. The question before this Court is in regard to the second part of the
case where the claim is as to the unbranded software also known as tailor made
to the customers particular requirement and the same being service and not cov-
ered under the definition of goods.
34. The reliance placed by counsel for the revisionist in the case of Sas-
ken Communication Technologies Ltd. (supra) as far as the unbranded software is

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