Customised software as goods under sales tax law, with denial of tax benefits held inconsistent with binding precedent.

Unbranded or customised software can be treated as goods for sales tax purposes if it has utility and is capable of being bought, sold, transmitted, transferred, delivered, stored and possessed. The earlier distinction drawn by relying only on the majority discussion in the prior software case could not stand once the later binding ruling adopted the concurring view as the correct legal position. On that basis, the refusal to recognise such software as goods was inconsistent with binding precedent, and the consequential denial of sales tax benefits and declarations could not be sustained.

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Issues: Whether unbranded or customised software developed and sold by the assessee is goods for sales tax purposes, and whether the assessee is therefore entitled to the consequential benefits and declarations under the sales tax law.

Analysis: The decision turned on the later authoritative pronouncement that software, whether customised or non-customised, can be goods if it has the attributes of utility, capability of being bought and sold, and capability of being transmitted, transferred, delivered, stored and possessed. The earlier distinction drawn by the authority by relying only on the majority discussion in the earlier software case could not prevail once the later binding ruling expressly adopted the concurring view as the correct legal position. The impugned refusal to treat unbranded software as goods was therefore inconsistent with the binding precedent.

Conclusion: The issue is answered in favour of the assessee. Unbranded or customised software is to be treated as goods, and the consequential orders refusing the claimed tax benefits and declarations could not stand.

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