Issue of Form H- whether eligible

[Asked by Guest]

I am at trichy. Tamilnadu My vendor at Mumbai had purchased a license key from USA. He in turns sell it to me. I sold the same key as such to Thailand as export. The sale was done by way of email to Thailand. My mumbai dealer requests me to file form-H as he is the Pre seller to export. My sales tax authorities have rejected my plea on the ground that the export was not done with the consent of customs authorities. The export of intangible goods will not come under the purview of issuance of Form-H. since the service tax was levied question of VAT levy doesnot attract. I may please be clarified whether they (sales tax authroities) are right in rejecting my claim.

[YAGAY and SUN]

Dear Badrinath,

Form H is used for sale in course of export for physical goods.  Access key for software attracts service tax. Further, access key did not cross the physically Indian Customs Frontiers. Since, VAT is not applicable. form H would not be allowed.

Regards,

Team YAGAY & SUN

Thankyou sirs. But there were judicial pronouncements that dual taxation attracts for software, since the service tax is for the after sales service i.e. maintenance and the sale of software attracts VAT as intangible goods at the rate of 5 percent in Tamilnadu Value Added Tax Act2006. So I had this doubt. Please guide.

[YAGAY and SUN]

Dear Badrinath,

Packaged Software are goods as per the TCS judgment.  If these goods are exported through third party then, it may come under the purview of Deemed Export/Third Party Export.  Then, in this scenario Form H may be applicable.

Regards,

Team YAGAY & SUN

AI Summary

Form H eligibility for exported software denied when supply is taxed as service; packaged software via third party export may qualify.
Form H is generally applicable to sales of tangible goods in the course of export; electronically supplied access keys that do not cross customs frontiers and are taxed as services do not qualify for Form H. However, where software is legally treated as packaged goods and exported via a third party or under a deemed export/third party export arrangement, Form H may be available.