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Andhra Pradesh Sales Tax Act, 1957-Section 2(h) and (n) and section 5- Computer Software Packages-If `goods’ and assessable to Sales Tax- Held: Computer Software is intellectual corporeal property-Once intellectual property is put on to a media, in the form of books or canvas or computer discs or cassettes, and is marketed, it would become `goods `-Sale is not of the media which has very little value-Software and the media cannot be split up-Buyer purchases and pays for the intellectual property and not the media- Furthermore, software programmes, canned and uncanned are capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, stored and possessed-Hence, transaction sale of computer software is sale of `goods’ within the meaning of the term `goods’ defined in the Act and as such assessable to Sales Tax. Sales Tax: Term `goods’-Scope of-Held: Term `goods’ is very wide and includes all types of movable properties, tangible or intangible-Test to determine whether a property is `goods’, for levy of Sales Tax is whether the concerned item is capable of abstraction, consumption and use and whether it can be transmitted, transferred, delivered, stored, possessed-It is not whether the property is tangible or intangible or incorporeal-Andhra Pradesh Sales Tax Act, 1957-Section 2(h)-Constitution of India, 1950- Article 366(12). Words and Phrases: `Goods `-Meaning of in the context of Article 366(12) of the Constitution of India and section 2(h) Andhra Pradesh General Sales Tax Act, 1957. The question which arose for consideration was whether the canned software – Computer Software Packages sold by the appellant-Computer Consultancy can be termed to be `goods’ and as such assessable to Sales Tax under the Andhra Pradesh General Sales Tax Act, 1957. Dismissing the appeals, the Court HELD: Per S.N. Variava, J (for himself and N. Santosh Hegde J, B.P. Singh J and, H.K. Sema J) 1.1. The term “goods” as used in Article 366 (12) of the Constitution of India and as defined under the Andhra Pradesh General Sales Tax Act, 1957 is very wide and includes all types of movable properties, whether those properties be tangible or intangible. In India, the test to determine whether a property is `goods’, for purposes of sales tax, is not whether the property is tangible or intangible or incorporeal. The test is whether the concerned item is capable of abstraction, consumption and use and whether it can be transmitted, transferred, delivered, stored, possessed etc. [1064-B, F] 1.2. Computer Software is intellectual corporeal property. Intellectual property, once it is put on 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’. 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 are susceptible to sales tax. There is no difference between a sale of a software programme on a CD/floppy disc from a sale of music 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. Sale is not just of the media which by itself has very little value. The software and the media cannot be split up. The buyer purchases and pays for intellectual property and not the media-the disc or the CD. Furthermore, software programmes, both canned and uncanned are capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, stored, possessed etc. Thus, a transaction of sale of computer software is clearly a sale of `goods’ within the meaning of the term as defined in the Act. [1064-C, D, E; 1065-C] Commissioner of Sales Tax, Madhya Pradesh, Indore v. Madhya Pradesh Electricity Board, Jabalpur [1969] 1 SCC 200; Associated Cement Companies Ltd. v. Commissioner of Customs, [2001] 4 SCC 593 and State of A.P. v. National Thermal Power Corpn. Ltd. and Ors., [2002] 5 SCC 203, relied on. H. Anraj v. Government of Tamil Nadu, [1986] 1 SCC 414; M. P. Cement Manufacturers’ Association v. State of M. P. and Ors., [2004] 2 SCC 249 and Commissioner of Central Excise, Pondicherry v. M/s Acer India Ltd., JT (2004) 8 SC 53, referred to. St. Albans City and District Council v. International Computers, (1996) 4 AH ER 481; Commerce Union Bank v. Tidwell, 538 S.W.2d 405; State of Alabama v. Central Computer Services, INC 349 So. 2d 1156; The First National Bank of Fort Worth v. Bob Bullock, 584 S.W. 2d 548; First National Bank of Springfield v. Department of Revenue, 421 NE 2d 175; CompuServe, INC. v. Lindley, 535 N.E. 2d 360; Northeast Datacom, Inc., et al v. City of Wallingford, 563 A2d 688; South Central Bell Telephone Co. v. Sidney J. Barthelemy 643 So.2d 1240; Comptroller of the Treasury v. Equitable Trust Company, 464 A.2d 248; Chittenden Trust Co. v. Commissioner of Taxes, 465 A.2d 1100; University Computing Company v. Commissioner of Revenue for the State of Tennessee, 677 S.W.2d 445 and Hasbro Industries, INC. v. John H. Norberg, Tax Administrator, 487 A.2d 124, referred to. The Law Relating to Computers and the Internet by Rahul Matthan; Software Engineering by Roger S. Pressman, referred to. 1.3. There is no distinction between branded and unbranded software. In both cases, the software is capable of being abstracted, consumed and use and can be transmitted, transferred, delivered, stored, possessed etc. Thus, even unbranded software, when it is marketed/sold, may be goods. [1065-B-C] Per S.B. Sinha, J. (Concurring): 1.1. The term `goods’ had been defined in the Andhra Pradesh General Sales Tax Act, 1957 as also in Clause (12) of Article 366 of the Constitution to include all materials, commodities and articles. Commodity is an expression of wide connotation and includes every thing of use or value which can be an object of trade and commerce. The amplitude of the said expression is required to be considered. The expression `goods’ is not a term of art. Its meaning varies from statute to statute. [1065-H] Jagir Singh and Ors. v. State of Bihar and Anr., etc. AIR (1976) SC 997, referred to. Words and Phrases, Volume (7A, Permanent Edn p 590, referred to. 1.2. The definition of `goods’ in Sales of Goods Act is also of wide import which means every kind of movable property. Property has been defined therein to mean the general property in goods and not merely a special property. The term `goods’ would comprehend tangible and intangible properties, materials, commodities and articles and also corporeal and incorporeal materials, articles and commodities and if a distinction is sought to be made, the definition of goods will have to be rewritten of comprising tangible goods only which is impermissible. In the Constitution, `goods’ as such is not defined. An expansive definition with the said expression has been given which is indicated by the expression “includes”. Such an expression is also of wide amplitude. When the word `includes’ is used in an interpretation clause, it must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include. [1066-H; 1067-A-B-C-D] Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, [2002] 5 SCC 111 and Scientific Engineering House Pvt. Ltd. v. Commissioner of Income- tax, Andhra Pradesh [1986] 1 SCC 11, relied on. 2.1. In interpreting an expression used in a legal sense, the courts are required to ascertain the precise connotation which it possesses in law. It is furthermore trite that a court should not be over zealous in searching ambiguities or obscurities in words which are plain. It is now well-settled that when an expression is capable of more than one meaning, the Court would attempt to resolve that ambiguity in a manner consistent with the purpose of the provisions and with regard to the consequences of the alternative constructions. [1076-F-H; 1077-A] Indian Handicrafts Emporium and Ors v. Union of India and Ors., [2003] 7 SCC 589 and Ramesh Mehta v. Sanwal Chand Singhvi and Ors., JT (2004) Supp. 1 SC 274, relied on. Inland Revenue Commissioner v. Rossminster Ltd., (1980) 1 All ER 80; Clark and Tokeley Ltd. (t/a Spellbrook) v. Oakes, (1998) 4 All ER 353 and In Inland Revenue Commissioners v. Trustees of Sir John Aird’s Settlement, (1984) Ch. 382, referred to. “Statutory Interpretation”by Francis Bennion pp.368-369, referred to. 2.2. A statute ordinarily must be literally construed. Such a literal construction would not be denied only because the consequence to comply the same may lead to a penalty. Proceeding on the basis that there existed a dichotomy, the Court ultimately held that the resolution will have to be reached by reading the entire statute as a whole. [1077-H; 1078-A] Indian Handicrafts Emporium and Ors. v. Union of India and Ors., [2003] 7 SCC 589; Reema Aggarwal v. Anupam and Ors., [2004] 3 SCC 199; Balram Kumawat v. Union of India and Ors.. [2003] 7 SCC 628 and Swedish Match AB and Anr. v. Securities and Exchange Board, India & Anr., (2004) 7 SCALE 158, relied on. 2.3. So long natural meaning for the charging section is adhered to and when the law is certain, then a strange meaning thereto should not be given. [1078-F] Indian Banks’ Association, Bombay and Ors. v. M/s. Devkala Consultancy Services and Ors. JT (2004) 4 SC 587, relied on. 2.4. In absence of incorporation or reference, it is trite that it is not permissible to interpret a word in accordance with its definition in other statute and more so when the same is not dealing with any cognate subject Copyright Act and the Sales Tax Act are also not statutes in pari materia and as such the definition contained in the former should not be applied in the latter. [1067-E-F] State of Kerala v. Mathai Verghese and Ors., [1986] 4 SCC 746 and Feroze N. Dotivala v. P.M. Wadhwani and Ors., [2003] 1 SCC 433 and Jagatram Ahuja v. Commr. of Gift-tax, Hyderabad AIR (2000) SC 3195, relied on. 2.4. Although normally a taxing statute is to be strictly construed but when the statutory provision is reasonable akin to only one meaning, the principles of strict construction may not be adhered to. In a fiscal statute plain meaning rule is applied. [1078-G] Commnr. of Central Excise, Pondicherry v. M/s. ACER India Ltd., (2004) 8 SCALE 169, relied on. Partington v. Attorney-General, (1869) LR 4 HL 100, referred to, 3.1.A software may be intellectual property but such personal 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. 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 licence. 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 the desired results. It indisputably becomes an object of trade and 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 supplier programme is supplied with the software, the same would not necessarily mean that it would cease to be `goods’. Such instructions contained in the manual are supplied with several other goods including electronic ones. [1078-H; 1079-A-D] 3.2.A Software programme would become goods provided it has the attributes thereof having regard to (a) its utility; (b) capable of being bought and sold; and (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 has also not gone into the question of severability. [1080-A-B-C] Associated Cement Companies Ltd. v. Commissioner of Customs, [2001] 4 SCC 593; H. Anraj v. Government of T.N. [1986] 1 SCC 414; Sunrise Associates v. NCT of Delhi, [2000] 10 SCC 420 and Commnr. of Central Excise, Pondicherry v. M/s. ACER India Ltd., 2004 (8) SCALE 169, referred to. Pont Data Australia Pty Ltd. v. ASX Operations Pty Ltd. and Anr., (1990) 93 Australian Law Reports 523; ASX Operations Pty Ltd. and Australian Stock Exchange Ltd. and Pont Data Australia Pty Ltd. FED No. 710 Trade Practices (1991) ATPR para 41-069 97 ALR 513/19 IPR 323 27 FCR 460; Advent Systems Ltd v. Unisys Corpn, 925 F. 2d 670 (3rd Cir. 1991); Colonial Life Insurance Co. v. Electronic Data Systems Corp., 817 F. Supp. 235; First National Bank of Springfield v. Department of Revenue, 421 N.F. 2d 175 85 III2d 84, 421 NE2d 175; Comptroller of the Treasury v. Equitable Trust Company, 464 A.2d 248; Commerce Union Bank v. Tidwell, 538;* CompuServe, INC v. Lingley 535 N.E. 2d 360; Northeast Datacom, Inc. et al. v. City of Wallingford, 212 Conn.639, 563 A2d 688; South Central Bell Telephone Co. v. Sidney J. Barthelemny, et al. 643 So. 2d 1240: 36 A.L.R. 5th 689; St. Albans City and District Council v. International Computers, (1996) (4) All ER 481; STATE- CASE APP-CT, OH-TAXRPTR 402-978 Ohio Board of Tax Appeals, Aeroquip Cop p 9 of 12, referred to. Computer Software or Printout Transactions as subject to State Sales or use Tax by Linda A. Sharp, J.D. 36 ALR 5th 33, referred to. 4. The court cannot rewrite the provisions of law which clearly is the function of the Legislature which interprets them. If a canned software otherwise is `goods’, the Court cannot say it is not because it is an intellectual property which would tantamount to rewriting the judgment [1080-D] Madan Lal Fakirchand Dudhediya v. Shree Changdeo Sugar Mills Ltd. [1962] Suppl. 3 SCR 973, relied on. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2582 of 1998. From the Judgment and Order dated 12.12.96 of the Andhra Pradesh High Court in T.R.C. No. 99 of 1996. WITH C.A. Nos. 2584, 2585 and 2586 of 1998.

CASE NO.: Appeal (civil) 2582 of 1998 PETITIONER: Tata Consultancy Services RESPONDENT: State of Andhra Pradesh DATE OF JUDGMENT: 05/11/2004 BENCH: N. Santosh Hegde & S.N. Variava & B.P. Singh & H.K. Sema & S.B. Sinha JUDGMENT: JUDGMENT WITH CIVIL APPEAL NOs. 2584, 2585 & 2586/98 Delivered by S.B.SINHA, J S. N. VARIAVA, J S.B. … Continue reading

The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:- “498-A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.–For the purposes of this section, `cruelty’ means:- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1512 OF 2010 (Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus State of Jharkhand & Another ….Respondents J U D G M E N T Dalveer Bhandari, J. 1. Leave granted. 2. This appeal has been … Continue reading

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