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State of Keralarep. by The Deputy Commissioner (Law), Commercial Taxes, Ernakulam v/s M/S. Techsmith Software (P) Ltd.


Company & Directors' Information:- R S SOFTWARE (INDIA) LTD. [Active] CIN = L72200WB1987PLC043375

Company & Directors' Information:- C K SOFTWARE PRIVATE LIMITED [Active] CIN = U72501DL2000PTC106184

Company & Directors' Information:- K K SOFTWARE PRIVATE LIMITED [Active] CIN = U72900DL2009PTC193030

Company & Directors' Information:- A K C SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2004PTC128462

Company & Directors' Information:- P AND P SOFTWARE PRIVATE LIMITED [Active] CIN = U74899DL1994PTC057212

Company & Directors' Information:- SOFTWARE INDIA PRIVATE LIMITED [Active] CIN = U72200GJ1995PTC025791

Company & Directors' Information:- N. D. SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200TG1998PTC029778

Company & Directors' Information:- T AND H SOFTWARE PRIVATE LIMITED [Active] CIN = U72200UP2000PTC025638

Company & Directors' Information:- TECHSMITH SOFTWARE PRIVATE LIMITED [Active] CIN = U72200KL2007PTC021587

Company & Directors' Information:- M S SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2005PTC133997

Company & Directors' Information:- G A S SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2004PTC127546

Company & Directors' Information:- B B SOFTWARE LTD [Strike Off] CIN = L30009WB1995PLC072361

Company & Directors' Information:- H K SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200WB2001PTC093967

Company & Directors' Information:- J SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200TZ2000PTC009229

Company & Directors' Information:- K S M SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2004PTC128463

Company & Directors' Information:- R B SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2005PTC140322

Company & Directors' Information:- SOFTWARE INDIA PRIVATE LIMITED [Active] CIN = U72200RJ1995PTC010577

Company & Directors' Information:- R J SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2005PTC133815

Company & Directors' Information:- I & I SOFTWARE INDIA PRIVATE LIMITED [Strike Off] CIN = U72200TN2005PTC056262

Company & Directors' Information:- D F SOFTWARE INDIA PRIVATE LIMITED [Strike Off] CIN = U72200TZ2003PTC010629

Company & Directors' Information:- E. C. SOFTWARE INDIA PRIVATE LIMITED [Active] CIN = U72900TN2007PTC063486

Company & Directors' Information:- Q 3 INDIA SOFTWARE PRIVATE LIMITED [Active] CIN = U72900TN2007PTC065786

Company & Directors' Information:- K Y SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC136072

Company & Directors' Information:- T M I SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200KA2005PTC036299

Company & Directors' Information:- B C L SOFTWARE (INDIA) PRIVATE LIMITED [Strike Off] CIN = U30007MH1999PTC117922

Company & Directors' Information:- M I S SOFTWARE PRIVATE LIMITED [Active] CIN = U72200TN2008PTC068694

Company & Directors' Information:- A. T. SOFTWARE PRIVATE LIMITED [Active] CIN = U72200TG1996PTC023841

Company & Directors' Information:- J A K SOFTWARE PVT LTD [Active] CIN = U72200DL2001PTC111929

Company & Directors' Information:- R R SOFTWARE PVT LTD [Under Process of Striking Off] CIN = U72200KL1991PTC006051

Company & Directors' Information:- A M H SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC132410

Company & Directors' Information:- P D A SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72900DL2003PTC123465

Company & Directors' Information:- K C SOFTWARE PRIVATE LIMITED [Active] CIN = U74899DL1989PTC036923

Company & Directors' Information:- I SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72300MH2012PTC225903

Company & Directors' Information:- V M SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72900PN2010PTC136847

Company & Directors' Information:- H M SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200HP2011PTC031756

Company & Directors' Information:- S N R SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72900DL2012PTC243073

Company & Directors' Information:- C M S SOFTWARE PRIVATE LIMITED [Active] CIN = U74899DL2005PTC142352

Company & Directors' Information:- S M I T SOFTWARE COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL2006PTC144816

Company & Directors' Information:- A D SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200KA2002PTC030722

Company & Directors' Information:- H. A. N. R. E. J SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200TG2008PTC062044

    OT.Rev.No. 48 of 2016

    Decided On, 01 June 2016

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

    For the Petitioner: Sobha Annamma Eapen, Sr. Govt Pleader. For the Respondnets: P.T. Usha Road, R1, S.K. Devi, M. Raj Mohan, Santhosh P. Abraham, Advocates.



Judgment Text

Antony Dominic, J.

1. These revisions are filed by the Revenue challenging the common order passed by the Kerala Value Added Tax Appellate Tribunal, Ernakulam in TA VAT.No.307/14 and 308/14 respectively. Briefly stated, the case as disclosed in the records show that during the assessment years 2010-11 and 2011-12, the respondent, a registered dealer, had effected sale of software (IT products). After the assessment was completed, an audit visit was conducted by the Commercial Tax Officer under section 23 of the KVAT Act. On inspection of the books of records, it was found that the assessee had received certain amounts towards customization charges which was not included in the return filed by them. Treating the customization charges thus received by the assessee as part of its turn over, proceedings were initiated by issuing a pre-assessment notice. The assessee contended that the customization charges received by it were not part of sale consideration but was received for the service rendered by it after the sale of the softwares in question. However, rejecting the said contention, the Assessing Officer completed the assessment. Though the order was confirmed in appeal, the first appellate authority reduced the addition made. The assessee challenged the order before the Tribunal and the Tribunal set aside the impugned orders. It is in this background, the revision petitions are filed.

2. We heard learned Government Pleader and the counsel appearing for the assessee.

3. The short question that is required to be considered for the disposal of these revision petitions is whether the view taken by the Tribunal that the customization charges received by the assessee are not part of the turn over is legal or not. Having bestowed our attention to the contentions raised, we find that admittedly, customization charges to the software products sold by the assessee was received by the assessee after the sale was completed. The sale proceeds received by the assessee was also declared in the return filed by it. It is also admitted that for the customization charges received, the assessee had paid service tax. 'Sale price' has been defined to mean the valuable consideration received or receivable by a dealer for the sale of any goods less any sum allowed as cash discount, according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods or services at the time of or before delivery thereof, excise duty, special excise duty or any other duty or taxes except the tax imposed in the KVAT Act. The customization charges are admittedly received by the assessee after the delivery of the goods to the customer. This, therefore, means that the levy of customization charges does not satisfy the requirements of the Act to classify it as part of sale price. If that be so, customization charges could not have formed part of the sale consideration of the assessee and for its non inclusion in its return, the assessee could not have been faulted. We find no reason to interfere with the impugned order. Revisions fail and are accordingly dismissed.

4. Learned Government Pleader c

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ontended that the question whether in the process of customization, any goods have been transferred to qualify it to be a case of works contract requires to be examined. However, we find that such a question was not raised or considered by anyone of the authorities and therefore, at this revisional stage, that question cannot be considered.
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