Madras High Court
M/S.K7 Computing Private vs The Commissioner on 5 August, 2021
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
WA.No.1881 of 2021 In the High Court of Judicature at Madras Dated : 05.8.2021 Coram The Honourable Mr.Justice T.S.SIVAGNANAM and The Honourable Mr.Justice SATHI KUMAR SUKUMARA KURUP Writ Appeal No.1881 of 2021 & CMP.No.11998 of 2021 M/s.K7 Computing Private Ltd., rep.by its Managing Director Mr.J.Kesavardhan ...Appellant Vs The Commissioner, O/o the Commissioner of GST & Central Excise, Chennai South, 692, MHU Complex, 5th floor, Anna Salai, Nandanam, Chennai-35. ...Respondent APPEAL under Clause 15 of the Letters Patent against the order dated 29.10.2020 made in W.P.No.25923 of 2018.
For Appellant: Mr.N.Viswanathan
For Respondent: Mr.A.P.Srinivas, SSC
Judgment was delivered by T.S.SIVAGNANAM,J We have elaborately heard Mr.N.Viswanathan, learned counsel appearing for the appellant and Mr.A.P.Srinivas, learned Senior 1/5 http://www.judis.nic.in WA.No.1881 of 2021 Standing Counsel accepting notice for the respondent herein.
2. This appeal is directed against the order dated 29.10.2020 made in W.P.No.25923 of 2018.
3. The said writ petition was filed by the appellant herein challenging the Order-in-Original dated 26.4.2018 passed by the respondent, by which, service tax was demanded from the appellant.
4. The contention of the appellant herein was that they developed anti virus software in the name of 'K7 Total Security' and 'K7 anti virus', which are softwares for anti virus protection, anti-spy ware protection, e-mail scanner, firewall and privacy protection, etc., and that the softwares are downloadable from the appellant's website.
5. The primary ground, on which, the said writ petition was filed, was by submitting that they did not provide any taxable service. The appellant's argument both before the learned Single Judge as well as before us is predicated on the submission that Section 65(53a) of the Finance Act, 1994 defines 'information technology software' and that the software, which has been developed and marketed by the appellant is not capable of being manipulated or providing interactivity to a user.
6. The correctness of this submission was tested by the learned 2/5 http://www.judis.nic.in WA.No.1881 of 2021 Single Judge and in our considered view, the learned Single Judge rightly held that the anti virus software would fall within the expression 'information technology software' as defined under Section 65(53a) of the Finance Act, 1994. The learned Single Judge also took note of the decision of the Hon'ble Division Bench of this Court in the case of Infotech Software Dealers Association (ISODA) Vs. Union of India [reported in (2010) 20 STR 289].
7. The argument of Mr.N.Viswanathan, learned counsel appearing for the appellant is that the said decision is only for the proposition as to whether the impugned provision therein namely Section 65(105)(zzzze) of Chapter V of the Finance Act, 1994 was null and void, ultra vires and unconstitutional of the provisions of Articles 245, Entries 92C and 97 of List-I, Entry 54 of List-II of Schedule VII and contrary to provisions of Articles 14, 19(1)(G), 265 and 268A of The Constitution of India and that alone was decided by the Writ Court.
8. We are unable to persuade ourselves to the said submission of the learned counsel appearing for the appellant, as the said decision of the Hon'ble Division Bench of this Court has dealt with all issues in a comprehensive manner though the prayer sought was for a declaration and such declaratory relief was sought for by the 3/5 http://www.judis.nic.in WA.No.1881 of 2021 members of an association, who are all software dealers/developers. The definition of 'information technology software' is wide enough to bring within its fold the anti virus software, which has to be obviously installed in the hardware and it would interact whenever the user of the computer engages the system. Therefore, the learned Single Judge is right in holding that the stand taken by the appellant herein does not merit consideration.
9. For all the above reasons, we find no grounds to interfere with the order passed by the learned Single Judge.
10. Accordingly, the above writ appeal is dismissed. No costs. Consequently, the connected CMP is also dismissed.
05.8.2021 To The Commissioner, O/o the Commissioner of GST & Central Excise, Chennai South, 692, MHU Complex, 5th floor, Anna Salai, Nandanam, Chennai-35.
RS 4/5 http://www.judis.nic.in WA.No.1881 of 2021 T.S.SIVAGNANAM,J AND SATHI KUMAR SUKUMARA KURUP,J RS WA.No.1881 of 2021& CMP.No.11998 of 2021 05.8.2021 5/5 http://www.judis.nic.in