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2009 (11) TMI 823
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.... the rate of two per cent on the sales turnover of such units. In the annual returns filed, the assessee had claimed exemption for royalty amounts included in the total turnover. The assessing authority at the first instance had granted exemption in respect of the royalty income from assessment to tax. The Deputy Commissioner in exercise of his suo motu powers had taken exception to the orders passed by the assessing authority and accordingly has set aside the assessment order on the ground that the grant of exemption was not proper and accordingly had remanded the matter to the assessing authority for fresh disposal in accordance with law. Pursuant to such remand, the assessing authority included the royalty received by the assess....
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....observed as under: (page 545) "The traditional meaning of the word 'goods' has undergone radical change due to technological and scientific developments. Reference may also be made to a recent decision of the apex court in Tata Consultancy Services v. State of Andhra Pradesh [2004] 137 STC 620; [2005] 13 KTR 1, wherein the apex court examined the constitutional definition of the word 'goods' and held that it includes all materials, articles and commodities both tangible and intangible/ incorporeal property which is capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, stored, possessed, etc. The court held that software programmes contain all these characteristics. It is rele....
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....roperty and not the media, i.e., the paper or cassette or disc or CD. Thus a transaction of sale of computer software is clearly a sale of "goods" within the meaning of the term as defined in the said Act. The term "all materials, articles and commodities" includes both tangible and intangible/incorporeal property which is capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, stored, possessed, etc. The software programmes have all these attributes.' " Similar issue came up for consideration before the Bombay High Court in the case of Commissioner of Sales Tax v. Duke & Sons Pvt. Ltd. [1999] 112 STC 370 and the Madras High Court in the case of S.P.S. Jayam and Co. v. Registrar, Tamil Nadu T....
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.... transfer of the right to use any goods for any purpose. In the instant case, the assessee received a sum of Rs. 1,500 by way of royalty on the transfer of right to use the trade mark of which the assessee is the owner. The right was transferred by an agreement with the transferee by which the transferee was allowed to use the trade marks of the assessee on payment of consideration by way of royalty at the rate specified therein. It was made clear in the agreement that what was transferred to the transferee was only the right to use the trade mark in the manner set out therein and not the right or interest of the assessee in the trade mark. The assessee's case is that mere user of the trade mark without transfer of any right in the t....
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....;Assignment' of trade mark is taken to be a sale or transfer of the trade mark by the owner or proprietor thereof to a third party inter vivos. By assignment, the original owner or proprietor of trade mark is divested of his right, title or interest therein. He is not so divested by transfer of right to use the same. Licence to use a trade mark is thus quite distinct and different from assignment. It is not accompanied by transfer of any right or title in the trade mark. The transfer of right to use a trade mark falls under the purview of the 1985 Act and not the assignment thereof. The manner of transfer of the right to use the goods to the transferee would depend upon the nature of the goods. For transfer of right to use a trade mark,....
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....e their trade mark in the course of trade at the rates specified therein for various items during a particular period. Of course, it retained the liberty to make use of the trade mark in the event of the licensor starting to manufacture the products. Equally, it retained the liberty to grant licence to any other individual person or company to use the trade marks. Trade mark is the property right and it exclusively belongs to the party who has registered it. Such a right is an intangible or incorporeal goods, which can be merchandised by the registered owners. As pointed out by the Supreme Court, the word 'goods' is defined in very wide terms so as to bring in both tangible and intangible objects. General Clauses Act would explain m....