{"id":116743,"date":"2004-11-05T00:00:00","date_gmt":"2004-11-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tata-consultancy-services-vs-state-of-andhra-pradesh-on-5-november-2004"},"modified":"2019-02-17T18:03:55","modified_gmt":"2019-02-17T12:33:55","slug":"tata-consultancy-services-vs-state-of-andhra-pradesh-on-5-november-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tata-consultancy-services-vs-state-of-andhra-pradesh-on-5-november-2004","title":{"rendered":"Tata Consultancy Services vs State Of Andhra Pradesh on 5 November, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Tata Consultancy Services vs State Of Andhra Pradesh on 5 November, 2004<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha<\/div>\n
           CASE NO.:\nAppeal (civil)  2582 of 1998\n\nPETITIONER:\nTata Consultancy Services\t\t\t\t\t\n\nRESPONDENT:\nState of Andhra Pradesh\t\t\t\t\t\t\n\nDATE OF JUDGMENT: 05\/11\/2004\n\nBENCH:\nS.B. Sinha\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nWITH<\/p>\n
CIVIL APPEAL NOs. 2584, 2585 & 2586\/98<\/p>\n
S.B. SINHA, J :\n<\/p>\n
 INTRODUCTION:\n<\/p>\n
 \tWhether an intellectual property contained in floppies, disks or CD-
\nROMs would be ‘goods’ within the meaning of Andhra Pradesh General
\nSales Tax Act, 1957 (hereinafter called as ‘the Act’) is the question involved
\nin this appeal which arises out of a judgment and order dated 12th December,
\n1996 passed by the Andhra Pradesh High Court.\n<\/p>\n
“Goods” : Meaning
\n\tThe said expression has been defined in Section 2(b) to, inter alia,
\nmean all kinds of moveable property and includes all materials, articles and
\ncommodities. The amplitude of the said expression is required to be
\nconsidered with a  view to answer the question involved in this appeal.\n<\/p>\n
 \tThe expression ‘goods’ is not a term of art.  Its meaning varies from
\nstatute to statute.  The term ‘goods’ had been defined in the Act as also in
\nClause (12) of Article 366 of the Constitution to include all materials,
\ncommodities and articles. Commodity is an expression of wide connotation
\nand includes every thing of use or value which can be an object of trade and
\ncommerce.\n<\/p>\n
 \tIn Jagir Singh and Others Vs. State of Bihar and another, etc. etc.,
\nAIR 1976 SC 997] it is stated:\n<\/p>\n
“20. The general rule of construction is not only to
\nlook at the words but to look at the context, the
\ncollocation and the object of such words relating to
\nsuch matter and interpret the meaning according to
\nwhat would appear to be the meaning intended to
\nbe conveyed by the use of the words under the
\ncircumstances.  Sometimes definition clauses
\ncreate qualification by expressions like “unless the
\ncontext otherwise requires”; or “unless the
\ncontrary intention appears”; or “if not inconsistent
\nwith the context or subject-matter”.  “Parliament
\nwould legislate to little purpose”, said Lord
\nMacnaghten in Netherseal Co. v. Bourne, (1889)
\n14 AC 228, “if the objects of its care might
\nsupplement or undo the work of legislation by
\nmaking a definition clause of their own.  People
\ncannot escape from the obligation of a statute by
\nputting a private interpretation on its language.”
\nThe courts will always examine the real nature of
\nthe transaction by which it is sought to evade the
\ntax.”\n<\/p>\n
\tIn Words and Phrases, Volume 7A, Permanent Edition at page 590,
\n‘commodity’ has been defined as under:\n<\/p>\n
“A “commodity” is an article of trade, a movable
\narticle of value; something that is bought and sold.
\nU.S. v. Sischo, D.C. Wash., 262 F. 1001, 1005.\n<\/p>\n
The term “commodity” includes every movable
\nthing that is bought or sold except animals.
\nPeterson v. Currier, 62 III. App. 163.\n<\/p>\n
“Commodity” meaning that which affords
\nconvenience or advantage, especially in
\ncommerce, including everything movable which is
\nbought and sold. McKeon v. Wolf, 77 III. App.\n<\/p>\n
325.”\n<\/p>\n
 The definition of ‘goods’ in Sales of Goods Act is also of wide
\nimport which means every kind of movable property.  Property has been
\ndefined therein to mean the general property in goods and not merely a
\nspecial property.  It is not much in dispute that ‘goods’ would comprehend
\ntangible and intangible properties, materials, commodities and articles and
\nalso corporeal an incorporeal materials, articles and commodities. If a
\ndistinction is sought to be made between tangible and intangible properties,
\nmaterials, commodities and  articles and also corporeal and incorporeal
\nmaterials, the definition of goods will have to be rewritten of comprising
\ntangible goods only which is impermissible.  This Court, therefore, will have
\nto confine itself to the question as to whether the concerned software would
\ncome within the purview of “goods”.  In the Constitution, goods as such is
\nnot defined.  An expansive definition with the said expression has been
\ngiven which is indicated by the expression “includes”.  Such an expression is
\nalso of wide amplitude.  [See Pradeep Kumar Biswas Vs. Indian Institute of
\nChemical Biology, (2002) 5 SCC 111, para 5 & 6].\n<\/p>\n
 \tWhen the word ‘includes’ is used in an interpretation clause, it must
\nbe construed as comprehending not only such things as they signify
\naccording to their nature and import but also those things which the
\ninterpretation clause declares that they shall include.  [See Scientific
\nEngineering House Pvt. Ltd. Vs. Commissioner of Income-tax, Andhra
\nPradesh  (1986) 1 SCC 11].\n<\/p>\n
RE: SUBMISSION OF BEHALF OF THE APPELLANT
\n \tReference by Mr. Sorabjee to the provisions of Copyright Act, in my
\nopinion, was not apposite.\n<\/p>\n
\tCopyright Act and the Sales Tax Act are also not statutes in pari
\nmateria and as such the definition contained in the former should not be
\napplied in the latter.  [See Jagatram Ahuja Vs. Commr. of Gift-tax,
\nHyderabad AIR 2000 SC 3195, p. 3201]<\/p>\n
 \tIn absence of incorporation or reference, it is trite that it is not
\npermissible to interpret a word in accordance with its definition in other
\nstatute and more so when the same is not dealing with any cognate subject.
\n[See State of Kerala Vs. Mathai Verghese & Ors.  (1986) 4 SCC 746, p. 753
\nand Feroze N. Dotivala Vs. P.M. Wadhwani & Ors. (2003) 1 SCC 433, p.
\n442]<\/p>\n
\tIt may not be necessary for us to rely upon the decisions of this Court
\nin H. Anraj Vs. Government of T.N. [(1986) 1 SCC 414] the correctness
\nwhereof has been doubted in Sunrise Associates Vs. NCT of Delhi [(2000)
\n10 SCC 420].  It is also not necessary to rely upon the Australian decision,
\nPont Data Australia Pty Ltd. Vs. ASX Operations Pty Ltd. & Anr. [1990
\n(93) Australian Law Reports 523] which is said to have been reversed in Re:
\nASX Operations Pty Ltd. and Australian Stock Exchange Ltd. and Pont Data
\nAustralia Pty Ltd.[FED No. 710 Trade Practices (1991) ATPR para 41-069
\n97 ALR 513\/19 IPR 323 27 FCR 460.\n<\/p>\n
 \tHowever, we may notice that the Federal Court of Australia while
\nreversing the judgment was of the opinion that as the definition of ‘goods’
\ncontained in Sub-Section (4) of Section 4 of the TP Act included gas and
\nelectricity, the same would not be held to mean further including “encoded
\nelectrical impulses”.  It was, however, noticed:\n<\/p>\n
“We should add that in Toby Constructions
\nProducts Pty Ltd. v Computa Bar (Sales) Pty Ltd.
\n(1983) 2 NSWLR 48, Rogers J. held that a sale of
\na computer system, comprising both hardware and
\nsoftware, was a sale of “goods” within the
\nmeaning both of the Sale of Goods Act 1923
\n(N.S.W.) and the warranties implied by Part V of
\nthe TP Act.  His Honour said (supra) at 54), with
\nreference to United States authorities, that he did
\nnot wish it to be thought he was of the view that
\nsoftware by itself may not be “goods”.  This is a
\nquestion which is left open after the present
\nappeal, which, as will be apparent, has decided a
\nnarrower point.”\n<\/p>\n
   \tThe standard works on software by Mr. Rahul Matthan and Mr. Roger
\nS. Pressman, relied upon by Mr. Sorabjee, may be relevant for proper
\nunderstanding as to what a software is and what is the nature and character
\nof software and in ordinary parlance may contrast a book, ordinary video or
\naudio cassette but it is well settled that the applicability of the statute would
\ndepend upon its purport and object.  Taxability of a software has its history
\nin other countries.  Its journey in American courts started in the Seventies.
\nThere had been a difference of opinion in different jurisdictions as regards
\ntaxability of the software.  The majority of the courts held that it is
\nintangible property, but the Federal Supreme Court said that it is not so.  The
\nState Legislatures made amendments as a result whereof a shift in the
\napproach started.  Having regard to the changes in definition even the
\nAmerican Courts began holding that tax can be imposed on such softwares.\n<\/p>\n
\tIn Advent Systems Ltd. vs. Unisys Corpn, 925 F. 2d 670 (3rd Cir.
\n1991), relied on by Mr. Sorabjee, the court was concerned  with
\ninterpretation of uniform civil code which “applied to transactions in goods”.
\nThe goods therein were defined as “all things (including specially
\nmanufactured goods) which are moveable at the time of the identification for
\nsale”.    It was held :\n<\/p>\n
“Computer programs are the product of an intellectual
\nprocess, but once implanted in a medium are widely
\ndistributed to computer owners.  An analogy can be
\ndrawn to a compact disc recording of an orchestral
\nrendition.  The music is produced by the artistry of
\nmusicians and in itself is not a “good,” but when
\ntransferred to a laser-readable disc becomes a readily
\nmerchantable commodity.  Similarly, when a professor
\ndelivers a lecture, it is not a good, but, when transcribed
\nas a book, it becomes a good.\n<\/p>\n
That a computer program may be copyrightable as
\nintellectual property does not alter the fact that once in
\nthe form of a floppy disc or other medium, the program
\nis tangible, moveable and available in the  marketplace.
\nThe fact that some programs may be tailored for
\nspecific purposes need not alter their status as “goods”
\nbecause the Code definition includes “specially
\nmanufactured goods.”\n<\/p>\n
The topic has stimulated academic commentary with
\nthe majority espousing the view that software fits
\nwithin the definition of a “good” in the U.C.C.\n<\/p>\n
Applying the U.C.C. to computer software transactions
\noffers substantial benefits to litigants and the courts.
\nThe Code offers a uniform body of law on a wide range
\nof questions likely to arise in computer software
\ndisputes: implied warranties, consequential damages,
\ndisclaimers  of liability, the statute of limitations, to
\nname a few.\n<\/p>\n
The importance of software to the commercial world
\nand the advantages to be gained by the uniformity
\ninherent in the U.C.C. are strong polity arguments
\nfavoring inclusion.  The contrary arguments are not
\npersuasive, and we hold that software is a “good”
\nwithin the definition in the Code.”\n<\/p>\n
\tIn Colonial Life Insurance Co. vs. Electronic Data Systems Corp. 817
\nF. Suppl. 235 (supra), Advent Systems Ltd. (supra) was followed.\n<\/p>\n
\tLinda A. Sharp, J.D., in an Article titled “Computer Software or
\nPrintout Transactions as subject to  State Sales or Use Tax”, published in 36
\nALR 5th 33, noticed the development of law as well as technological
\ndevelopment of computers and opined that a tape containing a copy of a
\ncanned programme does not lose its tangible character  because its content is
\na reproduction of the product of intellectual effort just as the phonorecord
\ndoes not become intangible because it is a reproduction of the product of
\nartistic effort.  The learned author referred to a large number of case laws
\nwherein such a statement of law was enunciated.  In the article various
\nstatutes defining software as tangible goods  had also been taken notice of.\n<\/p>\n
\tStrong reliance has been placed by Mr. Sorabjee on a judgment of
\nIllinois Supreme Court in First National Bank of Springfield vs.  Department
\nof Revenue, [421 N.E.2d 175, 85 III2d 84, 421 NE2d 175], wherein software
\nwas held to be intangible personal property on the premise :\n<\/p>\n
\t“The tapes were certainly not the only medium
\nthrough which the information could be transferred.  In
\nthis way, the tapes differ from a movie film, a
\nphonograph record or a book, whereby the media used
\nare the only practicable ways of preserving  those
\narticles.  Thus, while those articles and the apes are
\nsimilar in that they physically represent the transfer of
\nideas or artistic processes, whereas computer programs
\nare separable from the tapes.  Not only may software
\ninformation be conveyed any number of ways, but it may
\neven be copied off of the tapes and stored, sing another
\nmedium. (see Bryant & Mather, Property Taxation of
\nComputer Software, 18 N.Y.L.F. 59, 67 (1972).  In short,
\nit is not the tapes which are the substance of the
\ntransaction is, in instance, the transfer of intangible
\npersonal property and, as such, is not taxable. Under the
\nIllinois Use Tax Act.”\n<\/p>\n
\tThe said decision was rendered in 1981.  However, subsequently in
\nComptroller of the Treasury vs. Equitable Trust Company [464 A.2d 248],
\nan earlier decision of the  Tennessee Court in Commerce Union Bank vs.
\nTidwell, [538 *473 S.W.2d 405], as also First National Bank of Springfield
\n(supra), were considered wherein it was observed :\n<\/p>\n
“We can take judicial notice, based on modern human
\nexperience, that the technology, exists for producing a
\ncopy of a movie film on disc, of a phonograph record on
\ntape, and of a book on microfiche.  We have previously
\ndiscussed how the program copy is not separated  from
\nthe tape, when it is used in the computer.  See B.U. Note,
\nsupra, at 188-89.  To remove the program copy from the
\nmagnetic tape requires that it be overwritten, or
\nobliterated in a magnetic field, in the way in which one
\ndictating on tape makes corrections or wipes the tape
\nclean.”\n<\/p>\n
\tThus, the court found a change in the concept and noticed a departure
\nfrom earlier view that the computer software was intangible property.  The
\nargument of severability which had held the field was also negatived.
\nNoticing several other judgments, it was held :\n<\/p>\n
\t“What is troublesome about (the tax court)
\napproach is the fact that, while a substantial portion of
\nthe software is of a tangible nature, i.e. punched cards,
\nmagnetic tapes, instructions covering operation or
\napplications, (for property tax purposes)  the remainder
\nconsists of personal services to be rendered after
\npurpose.”\n<\/p>\n
In the aforementioned premise, it also negatived the contention which
\nincidentally has been raised by Mr. Sorabjee  that the price paid for a copy
\nof a canned programme reflects the cost of developing the programme which
\nthe proprietor hopes to recover, with profit, by spreading the cost among its
\ncustomers, stating :\n<\/p>\n
“Simply because the canned program on tape is much
\nmore expensive than the typical phonorecord, the
\nprogram tape is not any less tangible.”\n<\/p>\n
In Compuserve, INC vs. Lingley [535 N.E. 2d 360], the court
\ndisagreed  with the opinions contained in the earlier judgments and stated
\nthe law in the following terms :\n<\/p>\n
“Thus, the essence of the transaction in the sale
\nof computer software was  the purchase of nontaxable
\nintangible information.  The Missouri Supreme Court in
\nJames and the Texas Court of Civil Appeals in First
\nNational Bank of Fort Worth also used an essence-or-
\npurpose-of- the-transaction test to determine that
\ncomputer software is intangible property.\n<\/p>\n
The Supreme Court of Ohio in Interactive
\nInformation Systems, Inc. vs. Limbach (1985), 18 Ohio
\nst. 3d 309, 311, 18 OBR 356, 357-358, 480 N.E. 2d 1124,
\n1126, in determining the taxability of computer hardware
\nalso recognized that computer programs are intangible
\nproperty when the court stated :\n<\/p>\n
\t“Prior to encoding the tape, the
\nappellee is dealing with intangibles-ideas, plans,
\nprocedures, formulas, etc.; and, although these
\nintangibles are in some respects transformed or
\nconverted (or ‘organized’) into a different state or
\nform, such transformation or conversion is not
\n‘manufacturing’ because no ‘material or thing’ has
\nbeen transformed or converted.” (Emphasis sic.)<\/p>\n
The Supreme Court of Ohio also distinguished that
\nthe tapes were tangible, while the computer information
\nwas intangible.\n<\/p>\n
The courts that have found computer software to
\nbe tangible have based their decisions on the fact that the
\ncomputer program was coded on a tangible medium, such
\nas a computer tape.  See Citizens & Southern Systems,
\nInc. vs. South Carolina Tax Comm. (1984), 280   S.C.
\n138, 311 S.E. 2d 717; Hasbro Industries, Inc. vs. Norberg
\n(R.I. 1985), 487 A.2d 124; Chittenden Trust Co. v. King
\n(1983), 143 Vt. 271, 465 A.2d 1100; and Comptroller of
\nthe Treasury v. Equitable Trust Co. (1983), 296 Md. 459,
\n464 A.2d 248 (finding that only noncustomized
\ncomputer software is tangible property).”\n<\/p>\n
It is true that in Compuserve, Inc. (supra), the court found that the
\ncomputer software developed by the appellants therein was intangible
\nproperty, but a perusal of the said judgment shows the other views of the
\nother courts were noticed therein wherein computer software was held to be
\na tangible property on the ground that the computer programme was coded
\non a tangible medium such as a computer tape.\n<\/p>\n
Northeast Datacom, Inc. et al. vs. City of Wallingford  [212
\nConn.639, 563 A2d 688, was rendered on the premise of the severability
\ndoctrine.  The said judgment, however,  was  rendered keeping in view the
\nstatute levying tax on personal property wherein the phrase “tangible
\npersonal property’ was added by amendment in 1961 by Public Act 61 No.\n<\/p>\n
24.<\/p>\n
In South Central Bell Telephone Co. v. Sidney J. Barthelemny, et al.
\n[643 So. 2d 1240 : 36 A.L.R. 5th 689], the Supreme Court of Louisiana
\nnoticed the definition of ‘tangible personal property’ which was in the
\nfollowing terms :\n<\/p>\n
“Personal property which may be seen, weighed,
\nmeasured, felt or touched, or is in any other manner
\nperceptible to the senses.  The term ‘tangible personal
\nproperty’ shall not include stocks, bonds, notes or other
\nobligations or securities.”\n<\/p>\n
It was held :\n<\/p>\n
“The term “tangible personal property” set forth in
\nthe City Code, and its synonymous Civil Code concept
\n“corporeal movable”, must be given their property
\nintended meaning.  Physical recordings of computer
\nsoftware are not incorporeal rights to be comprehended
\nby the understanding.  Rather, they are part of the
\nphysical world.  For the reasons set out below, we hold
\nthe computer software at issue in this case constitutes
\ncorporeal property under out civilian concept of that
\nterm, and thus, is tangible personal property, taxable
\nunder ‘ 56-21 of the City Code.”\n<\/p>\n
The court, however,  noticed that the shift in the trend was not
\nuniform.  Having regard to the fact that the computer software became the
\nknowledge and understanding and upon discussing the characteristics of
\ncomputer software and classification thereof as tangible or intangible under
\nLouisiana law, it was held :\n<\/p>\n
“The software itself, i.e. the physical copy, is not
\nmerely a right or an idea to be comprehended by the
\nunderstanding.  The purchaser of computer software
\nneither desires nor receives mere knowledge, but rather
\nreceives a certain arrangement of matter that will make
\nhis or her computer perform a desired function.  This 13
\narrangement of matter, physically recorded on some
\ntangible medium, constitutes a corporeal body.\n<\/p>\n
We agree with Bell and the court of appeal that the
\nform of the delivery of the software-magnetic tape or
\nelectronic transfer via modem- is of no relevance.
\nHowever, we disagree with Bell and the court of  appeal
\nthat the essence or real object of the transaction was
\nintangible property .  That the software can be transferred
\nto various media i.e. from tape to disc, or tape to hard
\ndrive, or even that it can be transferred over the telephone
\nlines, doles not take away from the fact that the software
\nwas ultimately recorded and stored in physical form upon
\na physical object.  See Crockett, supra, at 872-74; Shontz,
\nat 168-70; Cowdrey, supra, at 188-90.  As the court of
\nappeal explained, and as Bell readily admits, the
\nprograms cannot be utilized by Bell until they have been
\nrecorded into the memory of the electronic telephone
\nswitch.  93-1072, at p. 6, 631 So.2d at 1342.  The essence
\nof the transaction was not merely to obtain the  intangible
\n“knowledge” or “information”, but rather, was to obtain
\nrecorded knowledge stored in some sort of physical form
\nthat Bell’s computers could use.  Recorded as such, the
\nsoftware is not merely an incorporeal idea to be
\ncomprehended, and would be of  no use if it were.
\nRather, the software is given physical existence to make
\ncertain desired physical things happen.\n<\/p>\n
One cannot escape the fact that software, recorded
\nin physical form, becomes inextricably intertwined with,
\nor part and parcel of the corporeal object upon which it is
\nrecorded , be that a disc, tape, hard drive, or other device.
\nCrockett, supra, at 871072; Cowdrey, Supre, at 188-90.
\nThat the information can be transferred and then
\nphysically recorded on another medium is of no moment,
\nand does not make computer software any different than
\nany other type of recorded information that can be
\ntransferred to another medium such as fil, video tape,
\naudio tape, or books.”\n<\/p>\n
It was further opined :\n<\/p>\n
“It is now common knowledge that books, music,
\nand even movies or other audio\/visual combinations can
\nbe copied from one medium to another.  They are also all
\navailable on computer in such forms as floppy disc, tape,
\nand CD-ROM.  Such movies, books, music, etc.can all
\nbe delivered by and\/or copied from one medium to
\nanother, including electrical impulses with the use of a
\nmodem.  Assuming there is sufficient memory space
\navailable in the computer hard disc drive such movies,
\nbooks, music, etc.can also be recorded into the
\npermanent memory of the computer such as was done
\nwith the software in this case.\n<\/p>\n
93-1072, at p. 4, 5. 631 So.2d at 1346-47
\n(dissenting opinion).  See also Shontz. Supra, at 168-170;
\nHarris, supra, at 187.\n<\/p>\n
That the information, knowledge, story, or idea,
\nphysically manifested in recorded form, can be
\ntransferred from one medium to 15 another does not
\naffect the nature of that physical manifestation as
\ncorporeal, or tangible.  Shontz, supra, at 168-170.
\nLikewise, that the software can be transferred from 1248
\none type of physical recordation, e.g., tape, to another
\ntype, e.g., disk or hard drive, does not alter the nature of
\nthe software, Shontz, supra, at 168-170; it still has
\ncorporeal qualities and is inextricably intertwined with  a
\ncorporeal object.  The software must be stored in
\nphysical form on some tangible object somewhere”\n<\/p>\n
Reversing the findings of the court below that the computer software
\nconstitutes intellectual property, it was opined :\n<\/p>\n
“In sum, once the “information” or “knowledge” is
\ntransformed into physical existence and recorded in
\nphysical form, it is corporeal property.  The physical
\nrecordation of this software  is not an incorporeal right to
\nbe comprehended.  Therefore we hold  that the switching
\nsystem software and the data processing software
\ninvolved here is tangible personal property and thus is
\ntaxable by the City of New Orleans.”\n<\/p>\n
St. Albans City :\n<\/p>\n
Mr. Sorabjee submitted that this Court Associated Cement Companies
\nLtd. Vs. Commissioner of Customs [(2001) 4 SCC 593] has misapplied the
\nprinciples contained in St. Albans City and District Council Vs. International
\nComputers [1996 (4) All ER 481].\n<\/p>\n
 \tOur attention in this behalf has been drawn to the judgment of Sir Iain
\nGlidewell which is in the following terms:\n<\/p>\n
“During the course of the hearing, the word
\n‘software’ was used to include both the (tangible)
\ndisk onto which the COMCIS program had been
\nencoded and the (intangible) program itself.  In
\norder to answer the question, however, it is
\nnecessary to distinguish between the program and
\nthe disk carrying the program.\n<\/p>\n
 \tIn both the Sale of Goods Act, 1979, s 61,
\nand the Supply of Goods and Services Act 1982,
\ns.18, the definition of goods includes ‘all personal
\nchattels other than things in action and money’.
\nClearly, a disk is within this definition.  Equally
\nclearly, a program, of itself, is not.”\n<\/p>\n
 \tAs regard utility of an instruction manual, it was observed:\n<\/p>\n
“As I have already said, the program itself is not
\n‘goods’ within the statutory definition.  Thus a
\nmatter of the program in the way I have described
\ndoes not, in my view, constitute a transfer of
\ngoods.  It follows that in such circumstances there
\nis no statutory implication of terms as to quality or
\nfitness for purpose.”\n<\/p>\n
 \tThe question which arose in that case was as to whether the defendant
\ntherein had breached its contract to supply the plaintiffs with a computer
\nsystem to be used in administering their collection of community charge by
\nproviding valid software which significantly overstated the relevant
\npopulation of their area and, thus, caused them to suffer a loss of revenue.
\nThe suit for damages was allowed.  It was held by the Court of Appeals that
\nthe submission on behalf of the appellant was that the question as to whether
\nas between the plaintiffs and the defendant the plaintiffs dealt as consumer
\nor on the defendant’s written standard terms of business within Section 3(1)
\nin the light of the definition of ‘business’ in Section 14 was answered in the
\nnegative on the ground that one cannot be said to deal on another’s standard
\nterms of business, negotiate with those terms before entering into the
\ncontract.\n<\/p>\n
 \tGlidewell, J. noticed that in that case the evidence was that in relation
\nto many of the programme releases, an employee of ICL went to St. Albans’
\npremises where the computer was installed taking with him a disk on which
\nthe new programme was encoded and himself performed the exercise of
\ntransferring the programme into the computer.  The learned Judge despite
\nholding that the programme itself is not ‘goods’ held that such term would
\nemploy to all types of contracts that the programme will be reasonably
\ncapable of achieving the intended purpose.\n<\/p>\n
 \tThe definition of goods in the said Act does not merely include
\npersonal chattels but all articles, commodities and materials.  The definition
\nof goods in the said Act was wider in term than in Sale of Goods Act, 1979
\nand the Supply of Goods and Services Act 1982.  Furthermore, here, we are
\nnot concerned with a programme which is not a part of the disk but a
\nprogramme contained in a disk.\n<\/p>\n
Strict Interpretation or Literal Interpretation :
\nWe, in this case, are not concerned with the technical meaning of
\ncomputer and computer programme as in a fiscal statute plain meaning rule
\nis applied.  [See Partington Vs. Attorney-General, (1869) LR 4 HL 100, p.
\n122]<\/p>\n
 \tIn interpreting an expression used in a legal sense, the courts are
\nrequired to ascertain the precise connotation which it possesses in law.\n<\/p>\n
 \tIt is furthermore trite that a court should not be over zealous in
\nsearching ambiguities or obscurities in words which are plain.  [See Inland
\nRevenue Commissioner Vs. Rossminster Ltd. (1980) 1 All ER 80, p. 90]<\/p>\n
 \tIt is now well-settled that when an expression is capable of more than
\none meaning, the Court would attempt to resolve that ambiguity in a manner
\nconsistent with the purpose of the provisions and with regard to the
\nconsequences of the alternative constructions. [See Clark & Tokeley Ltd.
\n(t\/a Spellbrook) Vs. Oakes [1998 (4) All ER 353].\n<\/p>\n
\tIn Inland Revenue Commissioners Vs. Trustees of Sir John Aird’s
\nSettlement [1984] Ch. 382, it is stated:\n<\/p>\n
“Two methods of statutory interpretation have at
\ntimes been adopted by the court.  One, sometimes
\ncalled literalist, is to make a meticulous
\nexamination of the precise words used.  The other
\nsometimes called purposive, is to consider the
\nobject of the relevant provision in the light of the
\nother provisions of the Act  the general
\nintendment of the provisions.  They are not
\nmutually exclusive and both have their part to play
\neven in the interpretation of a taxing statute.”\n<\/p>\n
 \tIn Indian Handicrafts Emporium and Others Vs. Union of India and
\nOthers [(2003) 7 SCC 589] this Court expounded the theories of purposive
\nconstruction.  [See also Ramesh Mehta Vs. Sanwal Chand Singhvi and Ors,
\nJT 2004 (Suppl.1) SC 274]<\/p>\n
 \tFrancis Bennion in his oft quoted treatise “Statutory Interpretation” at
\npages 368 & 369 states:\n<\/p>\n
“Subsection (2) Where the enactment is
\ngrammatically ambiguous, the opposing
\nconstructions put forward are likely to be
\nalternative meanings each of which is
\ngrammatically possible.  Where on the other hand
\nthe enactment is grammatically capable of one
\nmeaning only, the opposing constructions are
\nlikely to contrast an emphasized version of the
\nliteral meaning with a strained construction.  In the
\nlatter case the court will tend to prefer the literal
\nmeaning, wishing to reject the idea that there is
\nany doubt.\n<\/p>\n
Example 149.2 In a tax avoidance case concerning
\ncapital transfer tax, the Court of Appeal were
\ncalled on to construe the Finance Act 1975 Sch 5
\npara 6(7) as originally enacted.  Counsel for the
\nInland Revenue put forward several alternative
\narguments on construction, but the court preferred
\nthe one based on the unglossed literal meaning.  It
\nmay be conjectured however that the other
\narguments helped to convince the court that the
\nInland Revenue’s case was to be preferred.”\n<\/p>\n
 \tA statute ordinarily must be literally construed.  Such a literal
\nconstruction would not be denied only because the consequence to comply
\nthe same may lead to a penalty.  This aspect of the matter has been
\nconsidered by this Court in Indian Handicrafts Emporium (supra).
\nProceeding on the basis that there existed a dichotomy, the Court ultimately
\nheld that the resolution will have to be reached by reading the entire statute
\nas a whole. [See also Reema Aggarwal Vs. Anupam and Others, (2004) 3
\nSCC 199]  <\/p>\n
\tIn Balram Kumawat Vs. Union of India and Others [(2003) 7 SCC
\n628] this Court held:\n<\/p>\n
“The Courts will  reject that construction which
\nwill defeat the plain intention of the Legislature
\neven though there may be some inexactitude in the
\nlanguage used.  Reducing the legislation futility
\nshall be avoided and in a case where the intention
\nof the Legislature cannot be given effect to, the
\nCourts would accept the bolder construction for
\nthe purpose of bringing about an effective result.
\nThe Courts, when rule of purposive construction is
\ngaining momentum, should be very reluctant to
\nhold that Parliament has achieved nothing by the
\nlanguage it used when it is tolerably plain what it
\nseeks to achieve.”\n<\/p>\n
Referring to its earlier decisions, this Court opined :\n<\/p>\n
“36. These decisions are authorities for the
\nproposition that the rule of strict construction of a
\nregulatory\/penal statute may not be adhered to, if
\nthereby the plain intention of  Parliament to
\ncombat crimes of special nature would be
\ndefeated.”\n<\/p>\n
 [See also Swedish Match AB & Anr. Vs. Securities & Exchange Board,
\nIndia & Anr., 2004 (7) SCALE 158]<\/p>\n
 \tSo long natural meaning for the charging section is adhered to and
\nwhen the law is certain, then a strange meaning thereto should not be given.
\n [See Indian Banks’ Association, Bombay and Ors. Vs. M\/s. Devkala
\nConsultancy Services and Ors., JT 2004 (4) SC 587]
\n \tAlthough normally a taxing statute is to be strictly construed but when
\nthe statutory provision is reasonable akin to only one meaning, the principles
\nof strict construction may not be adhered to.  [See Commnr. of Central
\nExcise, Pondicherry Vs. M\/s. ACER India Ltd., 2004 (8) SCALE 169]<\/p>\n
Determination :\n<\/p>\n
A software may be intellectual property but such personal intellectual
\nproperty contained in a medium is bought and sold.  It is an article of value.
\nIt is sold in various forms like  floppies, disks, CD-ROMs, punch cards,
\nmagnetic tapes, etc.  Each one of the mediums in which the intellectual
\nproperty is contained is a marketable commodity.  They are visible to senses.
\nThey may be a medium through which the intellectual property is transferred
\nbut for the purpose of determining the question as regard leviability of the
\ntax under a fiscal statute, it may not make a difference.  A programme
\ncontaining instructions in computer language is subject matter of a licence.
\nIt has its value to the buyer.  It is useful to the person who intends to use the
\nhardware, viz., the computer in an effective manner so as to enable him to
\nobtain the desired results.  It indisputably becomes an object of trade and
\ncommerce.  These mediums containing the intellectual property are not only
\neasily available in the market for a price but are circulated as a commodity
\nin the market.  Only because an instruction manual designed to instruct use
\nand installation of the supplier programme is supplied with the software, the
\nsame would not necessarily mean that it would cease to be a ‘goods’.  Such
\ninstructions contained in the manual are supplied with several other goods
\nincluding electronic ones.  What is essential for an article to become goods
\nis its marketability.\n<\/p>\n
At this juncture, we may notice the meaning of canned software as
\nunder:\n<\/p>\n
“(7) ‘Canned ?software’?means that is not specifically
\ncreated for a particular consumer.  The sale or lease of, or
\ngranting a license to use, canned software is not
\nautomatic data processing and computer services, but is
\nthe sale of tangible personal property.  When a vendor, in
\na single transaction, sells canned software that has been
\nmodified or customized for that particular consumer, the
\ntransaction will be considered the sale of tangible
\npersonal property if the charge for the modification
\nconstitutes no more than half of the price of the sale.”\n<\/p>\n
[See STATE-CASE APP-CT,OH-TAXRPTR 402-978 Ohio Board of
\nTax Appeals, Aeroquip Cop. Page 9 of 12]<\/p>\n
 The software marketed by the Appellants herein indisputably is
\ncanned software and, thus, as would appear from the discussions made
\nhereinbefore, would be exigible to sales tax.\n<\/p>\n
 \tIt is not in dispute that when a programme is created it is necessary to
\nencode it, upload the same and thereafter unloaded.  Indian law, as noticed
\nby my learned Brother, Variava, J., does not make any distinction between
\ntangible property and intangible property.  A ‘goods’ may be a tangible
\nproperty or an intangible one.  It would become goods provided it has the
\nattributes thereof having regard to (a) its utility; (b) capable of being bought
\nand sold; and (c) capable of transmitted, transferred, delivered, stored and
\npossessed.  If a software whether customized or non-customized satisfies
\nthese attributes, the same would be goods.  Unlike the American Courts,
\nSupreme Court of India have also not gone into the question of severability.\n<\/p>\n
 \tRecently, in Commnr. Of Central Excise, Pondicherry Vs. M\/s. ACER
\nIndia Ltd. [2004 (8) SCALE 169] this Court has held that operational
\nsoftware loaded in the hard disk does not lose its character as tangible goods.\n<\/p>\n
If a canned software  otherwise is ‘goods’, the Court cannot say it is
\nnot because it is an intellectual property which would tantamount to
\nrewriting the judgment. \tIn Madan Lal Fakirchand Dudhediya vs. Shree
\nChangdeo Sugar Mills Ltd.<\/a> [(1962) Suppl. 3 SCR 973], this Court held that
\nthe court cannot rewrite the provisions of law which clearly is the function
\nof the Legislature which interprets them.\n<\/p>\n
 \tI respectfully agree with the opinion of Variava, J. that the appellant
\nherein is liable to pay sales tax on the softwares marketted by it and the
\nappeals should be dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Tata Consultancy Services vs State Of Andhra Pradesh on 5 November, 2004 Author: S.B. Sinha Bench: S.B. Sinha CASE NO.: Appeal (civil) 2582 of 1998 PETITIONER: Tata Consultancy Services RESPONDENT: State of Andhra Pradesh DATE OF JUDGMENT: 05\/11\/2004 BENCH: S.B. Sinha JUDGMENT: J U D G M E N T WITH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-116743","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTata Consultancy Services vs State Of Andhra Pradesh on 5 November, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tata-consultancy-services-vs-state-of-andhra-pradesh-on-5-november-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tata Consultancy Services vs State Of Andhra Pradesh on 5 November, 2004 - 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