This document provides details regarding the tax treatment of software in India. It discusses key court cases that have established that software is considered "goods" for taxation purposes. It also summarizes the applicable goods and services tax rates for different types of software transactions. Specific points covered include the 12% excise duty on packaged software, exemption for customized software and downloads, and the 15% abatement if the MRP system is followed for packaged software.

1. K.VAITHEESWARAN
ADVOCATE &TAX CONSULTANT
Flat No.3, First Floor,
No.9, Thanikachalam Road,
T. Nagar,
Chennai - 600 017, India
Tel.: 044 + 2433 1029 / 4048
402, Front Wing,
House of Lords,
15/16, St. Marks Road,
Bangalore – 560 001, India
Tel : 080 22244854/ 41120804
Mobile: 98400-96876
E-mail : askvaithi@yahoo.co.uk, vaithilegal@yahoo.co.in

2.  8523 80 20 of the Central Excise Tariff Act covers ‘Information
Technology Software’ and the rate is 12%.
 Supplementary note to the Tariff heading provides that “For the
purposes of heading 8523, information technology software means any
representation of instructions, data, sound or image including source
code and object code, recorded in a machine readable form and capable
of being manipulated or providing interactivity to a user, by means of an
automatic data processing machine.”
 This indicates that software is considered as goods.
 Excise Duty at the rate of 12% is applicable.
 No duty on customised software as well as download of software.
 MRP System is applicable to packaged software or canned software
with an abatement of 15%.

3.  8523 80 20 refers to information technology software, which does not attract
any basic customs duty.
 The Supplementary Note to Chapter 85 reads as under:
“For the purposes of heading 8523, information technology software means any
representation of instructions, data, sound or image including source code and
object code, recorded in a machine readable form and capable of being
manipulated or providing interactivity to a user, by means of an automatic data
processing machine.”
 This indicates that software is considered as goods under customs law.
 Basic Customs Duty is Nil
 Since excise duty is applicable, CVD is also applicable.
 In respect of packaged software which does not require declaration of MRP,
there is an exemption from CVD equivalent to the duty payable on the value
of goods which represents the consideration for the transfer of right to use
goods. Importer must be registered with service tax and must make a
declaration as to consideration (Box plus License)

4.  The Supreme Court in the case of Tata Consultancy Services Vs. State
of Andhra Pradesh (2004) 178 ELT 22 has observed as under in paras 24,
72 and 74 as under:
 “A software programme may consist of various commands which enable
the computer to perform a designated task. The copyright in that
programme may remain with the originator of the programme. But the
moment copies are made and marketed, it becomes goods, which is
susceptible to sales tax.
 Even intellectual property, once it is put to a media, whether it be in the
form of books or canvas (in case of painting) or computer discs or cassettes,
and marketed would become ‘goods’.
 We see no difference between a sale of a software, programme on a
cassette/CD or a sale of a film on a video cassette/CD. In all such cases, the
intellectual property has been incorporated on a media for purposes of
transfer.

5.  Sale is not just of the media which by itself has very little value. The software
and media cannot be split up. What the buyer purchases and pays for is not
the disc or the CD. As in the case of paintings or books or music or films the
buyer is purchasing the intellectual property and the media i.e. the paper or
cassette or disc or CD.
 Thus a transaction sale of computer software is clearly a sale of ‘goods’ within
the meaning of the term as defined in the said Act. The term ‘all materials,
articles and commodities’ includes both tangible and intangible/incorporeal
property which is capable of abstraction, consumption and use and which can
be transmitted, delivered, stored, possessed etc.
 A software may be intellectual property but such intellectual property
contained in a medium is bought and sold. It is an article of value. It is sold in
various forms like floppies, disks, CD-ROMs, punch cards, magnetic tapes etc.
Each one of the mediums in which the intellectual property is contained is a
marketable commodity. They are visible to senses.

6.  They may be a medium through which the intellectual property is
transferred but for the purpose of determining the question as regard
leviability of the tax under a fiscal statute, it may not make a difference.
 A programme containing instructions in computer language is subject-
matter of a license. It has its value to the buyer. It is useful to the person
who intends to use the hardware, viz. the computer in an effective
manner so as to enable him to obtain desired results. It indisputably
becomes an object of trade or commerce. These mediums containing
the intellectual property are not only easily available in the market
for a price but are circulated as a commodity in the market.
 Only because an instruction manual designed to instruct use and
installation of the supper programme is supplied with the software, the
same would not necessarily mean that it would cease to be a ‘goods’.

7.  Such instructions contained in the manual are supplied with several other
goods including electronic ones.
 What is essential for an article to become goods is its marketability. It is not
in dispute that when a programme is created it is necessary to encode it,
upload the same and thereafter unloaded. Indian law does not recognize or
make a distinction between tangible property and intangible property.
 A ‘goods’ may be a tangible property or an intangible one. It would become
goods provided it has the attributes thereof having regard to (a) utility (b)
capable of being bought and sold (c) capable of transmitted, transferred,
delivered, stored and possessed.
 If a software whether customized or non-customized satisfies these
attributes, the same would be goods. Unlike the American Courts,
Supreme Court of India have also not gone into the question of
severability”.

8.  The Supreme Court in para 26 of the judgment has
held as under:
Thus even unbranded software, when it is
marketed / sold, may be goods. We, however, are
not dealing with this aspect and express no opinion
thereon because in case of unbranded software
other questions like situs of contract of sale and /
or whether the contract is a service contract may
arise.”

9.  A Single Judge of the Madras High Court in the case
of Infosys Technology Vs. Special Commissioner
(2008) 17 VST 256 has referred to the concurring
opinion of Justice Sinha in the TCS case and the
subsequent decision of BSNL and held that
software whether customized or non-customized is
goods for the purpose of sales tax.

10.  Madras High Court upheld the Constitutional
validity of Section 65(105)(zzzze).
 Supply of software pursuant to end user license
agreement is a taxable service.
 IT software is goods and whether the transaction
would amount to a sale or service would depend
upon the individual transaction.
 When software sold through medium of internet as
a download it does not fit into ‘IT Software of any
media’.

11.  When the programming and providing of computer software is treated as works
contract, as the works contract necessarily involves an agreement to render service
and an agreement for sale of goods, service aspect could be taxed by the
Parliament and the sale of goods aspect could be taxed by the State Legislature.
 This distinctiveness of two transactions is to be ascertainable from the terms of the
composite contract.
 If such an intention is not discemable from the terms of the contract then we have
to find out what is the pith and substance of the contract or in other words what is
the true nature and character of the contract.
 If on an examination of the contract as a whole, it is not possible to discern that
the contract involves sale of goods but is essentially an agreement to render
service, neither the concept of a works contract nor the concept of aspect
theory is attracted.
 By introducing a schedule to the said enactment and describing under a works
contract “programming and providing a computer software is specified”, unless the
said works contract involves an element of sale of goods, the State Legislature has
no power to levy tax under the said Act.

12.  Future Focus Infotech (2010) 18 STR 308 –
Skilled personnel supplied to IT companies to work on
software projects and working under supervision and control
of IT companies. Records do not indicate sub-contracting of
projects and terms do not indicate provision of IT software
service. Contract facilitates substitution if somebody leaves
the job – Supply of Manpower Services

13.  Cognizant Tech Solutions (2010) 18 STR 326 – Work
force recruited required to work under a project manager
who has to act as a single point of contact being responsible
for overall management of the project. Functional service
relating to data management, bio-statistics and reporting
will be provided by the very same manpower recruited and
trained in the first phase. Nature of services required to be
provided are in the nature of ITSS as the same relates to data
management.

14.  Diksha Technologies (2011) 21 STR 614 –Stay
Stage – Bills referred to services of senior consultant
and consultant being made available to clients.
 Registration under ITSS is not a justification that
company was providing similar services for the
earlier period.
 Pre-deposit ordered.

15.  Integra Micro Software (2012) 25 STR 369 –Stay Stage –
Agreement for undertaking entire activities relating to
development of software to the satisfaction of the clients
including modification, upgradation of software based on
difficulties pointed out by client on usage.
 Client has right to ask for changes and delay payment till
completion of deliverables or even reject payments if work is
not satisfactory.
 Personnel on the payrolls of the appellant.
 Stay Granted as service in the nature of ITSS and not
Manpower Supply

16.  Trading in goods.
 Goods defined to cover any kind of movable property
excluding actionable claim and money.
 Information technology software separately defined.
 Sale of pre-packaged or canned software is in the nature
of sale of goods and does not attract service tax. (Para
5.4.1 of the Draft Guidance Paper)
 On site development of software is a declared service
 Advice, consultancy and assistance in matters relating to
IT software taxable as a general service (Para 5.4.3).

17.  Would providing a license to use pre-packaged software
be a taxable service?
It is a settled principle of law that pre-packaged software or
canned software or shrink wrapped software is goods (TCS).
To determine whether providing license to use a software is a
service or sale of goods it would need to be seen whether
license to use packaged software tantamount to transfer of
right to use goods. Transfer of right to use goods is a deemed
sale under Article 366(29A) and transfer of goods by way of
hiring, leasing, licensing or any such manner without transfer
of right to use such goods is a declared service. (Para 6.4.4.)

18.  If pre-packaged or canned software is not sold but is
transferred under license to use such software the terms and
conditions of the license will have to be examined to determine
whether the license to use involves the transfer of right to use.
 If the license imposes restrictions on the usage of such license
which interfere with the free enjoyment of the software . Then
such license would not result in transfer of right to use
software.
 If the software is put in a media or a CD or even embedded it
will be treated as goods. (Education Guide)

19.  Section 66E
 Temporary transfer or permitting use or enjoyment of IPR.
 Development, design, programming, customization,
adaption, upgradation, enhancement, implementation of
information technology software.
 Transfer of goods by way of hiring leasing, licensing or in any
such manner without the transfer of right to use such goods.

20.  IPR not defined.
 None of the old definitions are applicable.
 Old law defined IPR to mean any right to intangible property
namely trademark, designs, patents, or any other similar
intangible property under any law for time being in force but
does not include copyright. Subsequently, copyrights in the
context of movies were brought within the ambit of service tax.
 What constitutes IPR under the new law?

21.  Patents, designs, trademark and copyrights are clearly
known as IPRs.
 Technical know-how?
 Business or commercial rights?
 Data?
 Supreme Court in the case of CIT Vs. SMIFS Securities Ltd.
(2012) 348 ITR 302 in the context of income tax has held that
goodwill would fall under Explanation 3(b) to Section 32 of
the Income Tax Act. In other words, goodwill has been
considered as a depreciable asset in the segment of any
other business or commercial rights of a similar nature.

22.  Bundle of rights
 Ownership
 Absolute transfer
 Licensing model
 Lump sum payment and recurring royalty
 Reverse charge mechanism – IPR services
 R & D cess

23.  The Supreme Court in the case of Associated
Cement Companies Ltd. Vs. Commissioner of
Customs (2001) 124 STC 59 in the context of
Customs Law has held that if drawings and designs
are put on a media then it becomes goods.
 Plans, drawings and designs falling under 49.11 of
the Customs Tariff Act are exempt from customs
duty in terms of Entry 275, Notification No.12/2012
as amended.

24.  The following shall be added to price paid or
payable provided it is not already included.
- Commissions and brokerage other than buying
commission
- Cost of packing
- Cost of containers
 Goods and services supplied free of costs by the
buyer or at a concessional rate.

25.  Royalty and license fee related to imported goods
that the buyer is required to pay directly or
indirectly as a condition of sale.
 Value of any part of proceeds of any subsequent
resale or disposal.
 Other payments made by the buyer to seller or third
party to satisfy obligation of seller.

26.  An explanation provides that where royalty or
license fee or any other payment for a process
whether patented or otherwise is includable, such
charges shall be added to price paid or payable
notwithstanding the fact that such goods may be
subjected to the said process after importation of
such goods.
 Board Circular dated 09.10.2007 refers to post
importation activity, like running of machinery
when the process is put to use.

27.  Board Circular states that the explanation has been added in the
context of Supreme Court judgment in the case of JK Corporation.
 J.K. Corporation Ltd. (2007) 208 ELT 485, a collaboration
agreement was entered into with a foreign company and as per
Part-A of the agreement a lumpsum payment of US Dollars
14,00,000 was made for the supply of license, knowhow, and
technology. Under Part-B of the agreement the price of the
foreign equipment was said to be US Dollars 34,86,000 + DM
12,00,000 + Yen 88,50,00,000. The Supreme Court held that no
part of the know-how fee was relevant for the fabrication of the
plant or machinery or its design. The amount paid under Part-A
was towards services to be offered for the matters specified. The
value of license and technical know-how cannot be included in
the value of goods.

28.  Disputes are likely and old decisions could be
questioned.
 Mahindra & Mahindra (1999) 76 ELT 481
(SC) – Royalty for know-how has no bearing
as transactions are independent.

29.  The Supreme Court in the case of CC Vs. Ferodo India Pvt.
Ltd. (2008) 224 ELT 23 has held that technical knowhow costs
and payment of royalty can be included in the price of
imported goods only if the payment constitutes a condition
pre-requisite for the supply of imported goods. If the
payment has no nexus with the working of the imported goods
then such payment is not includable in the value.

30.  Supreme Court in the case of Bombay Dyeing and Manufacturing (1997)
90 ELT 276 has held that expenses in connection with dismantling of old
machinery to facilitate transport including inspection charges is
includable in the value.
 In the case of Toyota Kirloskar Motor Pvt. Ltd. (2007) 213 ELT 4, capital
goods and parts were imported from Toyota and the question was
whether royalty and know-how fees should be included or not in the
value. The Supreme Court held that payments for post import activities
cannot be included. Amounts payable for as a condition of import of
goods for motors governing the manufacturing activities are distinct and
such payments are not related to the import of capital goods. Amounts
cannot be included.

31.  In the case of Matsushita Television and Audio (I) Ltd. (2007) 211 ELT 200, the
The Department while valuing the goods added a certain percentage taking into
account the royalty payment. The Supreme Court held that in terms of the
agreement, the net factory sales price is defined to mean the sale prices to
customers including the cost of bought out components and the cost of
imported goods. In terms of Rule 9 of the Valuation Rules, 1988 only such
royalty relatable to imported goods and which is a condition of sale of such goods
can be added to the declared price. In the instant case, it is clear that the royalty
is payable on the sale price including the cost of imported goods. In other
words, the payment under the agreement was not only in connection with
production of goods but also to imported components and therefore the
Department’s contention is correct.

32.  In the case of CCE Vs. Living Media India Ltd. (2011) 271 ELT
3, the Supreme Court held that cassettes are brought into
India as pre-recorded cassettes which carry the music or
song of an artist. There is an agreement as per which royalty
payment is towards the money due to the artists. Royalty
becomes payable on distribution of cassettes and such
royalty is payable on the entire shipment less records
returned. Royalty is a condition of sale and would form part
of value.

33.  Originally in the Customs Tariff under Chapter 85 there was a
Chapter Note 6 which provided that records, tapes and other
media of heading 8523 or 8524 remain classified in those
headings when they are presented with the apparatus for
which they are intended. This note was deleted w.e.f.
01.01.2007. Therefore, software embedded along with the
hardware will merit classification as hardware.

34.  Supreme Court in the case of CC Vs. Hewlett Packard India Sales (Pvt.)
Ltd. (2007) 215 ELT 484 has held that when a laptop is imported with
inbuilt preloaded operating system, the said item forms an integral part
of the laptop and the laptop should be treated as a single unit classifiable
under 8471. An importer who buys the laptop containing an operating
system pays for the laptop as a unit. Software recorded hard disk drive if
imported without any other application would merit classification under
8524.
 Bangalore Bench of the Tribunal in the case of Bharti Airtel Ltd. Vs. CC
(2012) 286 ELT 270 has held that if any software is embedded / etched /
burned then it has to be included as part of the hardware and cannot be
treated as standalone software and that the value of such embedded
software should be part of the value of the computer. Civil Appeal against
the decision of the Tribunal is pending before the Supreme Court.

35.  Temporary transfer or permitting the use or enjoyment of
any IPR is a declared service.
 Transfer of right to use goods falls under Article 366(29A)
and transactions falling under Article 366(29A) are excluded
from the ambit of ‘service’ by Section 65B(44) which defines
service.
 Transfer of right to use goods is a sale pursuant to Article
366(29A) and States levy VAT on such transactions.

36.  Karnataka imposes VAT on Exim Scrips, REP license, special import
license, value based advance license, export quotas, DEPB licenses,
Copyrights, Patents and the like (including software licenses by whatever
name called), through Item 34, Schedule III.
 Kerala VAT imposes VAT on intangible goods like copyright, patent, REP
license, DEPP, others through Entry 68, Schedule III.
 Jammu & Kashmir imposes VAT on all intangible goods like Copyright,
Patent, REP license through Item 5, Schedule C.
 Delhi imposes VAT on all intangible goods like Copyright, Patent, REP,
Goodwill, etc. through Item 3,Schedule III.
 AP imposes on all intangible goods as may be notified including patents,
trade marks, designs, copyright, technical know-how, franchise and
goodwill through Item 2, Schedule IV.
 Tamil Nadu imposes VAT on intangible goods like copyrights, patents,
REP License through Item 70, Part B, Schedule I.

37.  Madras High Court in the case of A.V. Meiyappan (1967) 20
STC 115 has held that copyright is in the nature of
incorporeal movable property and hence goods.
 Madras High Court in the case of SPS Jayam Vs. TNTST
(2004) 137 STC 117 has held that royalty for allowing use of
trademark attracts sales tax.
 Bombay High Court in the case of CST Vs. Duke & Sons
(1999) 112 STC 370 has held that permission to use
trademark is a sale and liable to sales tax.

38.  Kerala High Court in the case of Malabar Gold Pvt. Ltd. Vs.
CTO (2013) TIOL 512 has held that:
(i) Entry No. 68 of KVAT is confined to copyright, patent and REP
License. Trademark cannot be roped under ‘others’.
(ii)Under the agreement there is only a license to use the trademark
and the transfer of its use is not to the exclusion of the transferor.
(iii) The Company retains the rights to transfer the same to
others.
(iv) Even when the franchisee agreement is in force, the Company
can use the trademark on their own and also enter into other
franchisee agreements. Effective control remains with the
Company.

39.  AP High Court in the case of Nutrine Confectionery
Vs. State of AP (2011) 40 VST 327, has held that:
(i)allowing other companies to use trademark and
logo is transfer of right to use goods.
(ii) a trademark or logo which is incorporeal or
intangible could always be assigned by the
proprietor while retaining the right to use for itself.

40.  Karnataka High Court in the case of Kwality Biscuits Pvt.
Ltd. Vs. State of Karnataka (2012) 53 VST 66 has held that
intellectual property rights are acquired over a period of time
by hard work. They are not goods in which the dealer traded
in the course of his business. It is not possible to hold that the
dealer was in the business of buying and selling intellectual
property rights or that the sale of intellectual property was
incidental or connected with manufacture and sale of
biscuits, confectionery, wheat products, jams, jellies and
creams. Therefore the dealer was not liable to pay sales tax
on the sale of intellectual property.

41.  Madras High Court in a batch of Writ Petitions challenging the
levy of service tax on temporary transfer of copyrights pertaining
to films has held that:
(i) While completing transfer or right to use any goods (where the
original owner relinquishes his copyright) may be considered as
sale of goods, temporary transfer of right or a mere transfer of
right to use or enjoy copyright for specified purpose, in certainly a
service provided by the person who is the holder of the copyright;
(ii)Service tax is a levy not on the transfer of right to use goods as
described under Article 366(29A)(d), but on the temporary transfer
or permitting or the use or enjoyment of the copyright.

42. (iii) The levy of tax on any transaction is based on the
criterion whether the transfer of right is permanent or
temporary. So long the producer does not fully
relinquish his right over the copyright held by him,
transfer of right to use is purely temporary and in those
cases levy of service tax for such transfer of copyright
would apply.
(iv) The service provider is the producer who is owner of the
intellectual property and the service receiver is the
person who temporarily gets the right to use the
intellectual property who is the distributor and service
tax is leviable on such temporary transfer of copyright.

43. (v) Even though the copyright of the film is assigned to a
distributor for a specific area for a limited period, the producer
reserves his right to exploit the film in other media. So long as the
transaction does not amount to sale or permanent transfer, it is only
a temporary transfer of copyright or permit its use by another
person for a consideration.
(vi) The clauses in the distribution agreement (samples) show that it is
only a temporary transfer of copyright or permission to use or
enjoyment of the film by exhibiting the film in a specified area for a
specified period of time.
(vii) It is also pertinent to note that permanent transfer of right is
excluded from service tax. Thus permanent transfer of copyright
will not amount to rendering of service and therefore will be
excluded from the purview of service tax.

44.  The Supreme Court in the case of CIT Vs. B. Suresh (2009) 313 ITR
149 had in the context of income tax held that transfer of
telecasting rights by way of lease is a sale and such rights would
fall in the category of articles of trade and commerce, hence
merchandise.
 Andhra Pradesh High Court in the case of Usha Kiran Movies Vs.
State of Andhra Pradesh (2006) 148 STC 453 has held that
granting of exploitation rights by means of telecasting to ETV is a
transfer of right to use goods and attracts sales tax under Section
5E of the APGST Act.

45.  Supreme Court in the case of BSNL has held that out of the 6 categories
of deemed sale referred to in Article 366(29A) only 2 transactions involve
both the elements of sale and service namely: works contract and
catering. Apart from these two cases where splitting of service and
supply has been constitutionally permitted, there is no other service
which has been permitted to be so split.
 In the case of transfer of right to use goods there is no service element
which is discernible for the purpose of levy of service tax.
 Copyright has been considered as goods and the objective is to transfer
the right to use such goods.
 There can be multiple rights in a movie and each can be dealt with
separately.
 Merely because the producer retains the ownership rights or retains
other rights such as telecast or broadcast or audio, the transaction does
not cease to be a transfer of right to use goods.

46.  Where an Indian Company pays Royalty of say Rs. 1
crore to a foreign company for using technical
know-how, the cost impact is as under:
(a) Rs. 12.30 lakhs as service tax under RCM.
(b) If the foreign party does not agree for TDS, then
Rs. 25 lakhs towards tax deduction payment under
Section 195.

47.  Where an Indian Company pays Rs. 10 crores to its group company
in India for the right to use the trademark and does not want
litigation,
(a)The licensor will charge Rs. 1.23 crores as service tax.
(b)The licensor will charge Rs. 50 lakhs as VAT.
(c)The transaction would fall under Section 40A(ii) and therefore
would attract the provisions of Section 92BA – specified domestic
transactions. Assuming as per Transfer Pricing the amount
payable is worked out to Rs. 5 crores, the licensee will have an
addition to its income. There is no corresponding relief to the
licensor and hence there will be domestic double taxation.
(d)The VAT and service tax paid cannot be altered on account of
domestic transfer pricing.

48. K.VAITHEESWARAN
ADVOCATE &TAX CONSULTANT
Flat No.3, First Floor,
No.9, Thanikachalam Road,
T. Nagar,
Chennai - 600 017, India
Tel.: 044 + 2433 1029 / 4048
402, Front Wing,
House of Lords,
15/16, St. Marks Road,
Bangalore – 560 001, India
Tel : 080 22244854/ 41120804
Mobile: 98400-96876
E-mail : askvaithi@yahoo.co.uk vaithilegal@yahoo.co.in