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NEW DELHI, FEB 21, 2008 : AFTER the Supreme Court held that computer software is goods in the context of the AP Sales Tax Act, its ripples spread to Service Tax, Central Excise and now the Income Tax Appellate Special
Bench is concerned with the issue. The Special Bench laid down the general guidelines and held that the issue has to be decided for each software based on the tests enunciated by it.
The Special Bench has been constituted to dispose of the appeals filed in the case of M/s. Amway India Enterprises and M/s. SQL Star International Ltd., as well as to dispose of the following important questions: -
(i) Whether, in the facts and circumstances of the case, the expenditure incurred by the assessee on account of computer software is of revenue nature or capital nature?
(ii) If the expenditure incurred on computer software is held to be of capital nature, what would be the rate of depreciation applicable thereon?"
In the case of M/s Amway India Enterprises, a deduction on account of software expenditure incurred amounting to Rs. 20,04,105/- was claimed by the assessee company in its return of income filed for A.Y. 2001-2002. The
said expenditure was claimed to be incurred by the assessee company for acquiring the following software for use in its business : -
1. MS Project 2000 Full Packaged Product (FPP) : Rs. 19,700/- - used by project managers who need a desktop tool to manage their projects independently.
2. MS project 2000 Central Open License Program : Rs. 78,600/- - basically platform software - helps in operating MS Project 2000 Full Packaged Program software
3. Macromedia Dream weaver and Flash : Rs. 35,800/- - web development tool.
4. Turbo Gold Software : Rs. 17,61,034.68 - helps in compression of size of e-mails sent through the Lotus Notes.
5. Wim tap call billing software Rs. 40,000/- - used for recording telephone calls and its cost.
6. Bright Star Are Server Advance Edition : Rs. 2,50,000/- - is to keep back up of data
7. Windows 2000 : Rs. 279,543/- Back Office Server 2000 and Windows 2000 Server Microsoft Open License Program (MOLP).
8. Win XP Software : Rs. 14,456/- you know what it is.
The Assessing Officer held that the said software were part of the plant and machinery of the assessee and gave enduring benefit to it. The Assessing officer also noted that all the application software purchased by the
assessee had long-lasting use of more than three-four years and the same, according to him, thus resulted into enduring benefit to it. He, therefore, treated the expenditure incurred by the assessee on acquisition of software as capital in nature and treating the same as part of the plant and machinery, depreciation thereon at the normal rate of 25% was allowed by him in the absence of any specific rate prescribed in the Schedule for the software.
The action of the Assessing Officer in treating the software expenditure as that of capital nature was upheld by the CIT(A) since he found on verification of the relevant details that the assessee has not upgraded or replaced the software frequently. He however, directed the AO to allow
depreciation at the rate of 60% on the software considering that the rate of depreciation provided on computers for AY 1999-2000 to 2002-03 was 60% and from AY 2003-04 onward, even the computer software was included in the
computers to be eligible to claim the depreciation at this higher rate.
Against the order of CIT(A), an appeal was filed by the assessee before the Tribunal. The Division Bench noted that there were divergent orders of different benches on the issue. Since the issue was expected to occur
regularly in many cases, it was felt by the Division Bench that the same may be referred to the Special Bench for decision after taking into consideration all the aspects as well as other contentions that might be put forth by the parties. Accordingly, this Special Bench has been constituted.
Before the Special Bench could sit and hear the appeals filed in the case of Amway, a similar issue relating to allowability of software expenditure arose for consideration before the Division Bench of Tribunal i.e. Delhi 'G' Bench, in the case of M/s. SQL Star International Ltd. Having noted that a
similar issue relating to allowability of software expenditure has already been referred to the Special Bench in the case of Amway, this case was also referred to the Special bench which was duly acceded to.
The Special Bench exhaustively considered the issue referring to several landmark judgements from the Indian Supreme Court and other foreign courts.
The Bench took guidance from Lord Denning in Heather v. P.E. Consulting Group Ltd.
"The question revenue expenditure or capital expenditure is a question which is being repeatedly asked by men of business, by accountants and by lawyers. In many cases the answer is easy; but in others it is difficult.
The difficulty arises because of the nature of the question. It assumes that all expenditure can be put correctly into one category or the other: but this is simply not possible. Some cases lie on the border between the two: and this border is not a line clearly marked out; it is a blurred and undefined area in which anyone can get lost. Different minds may come to different conclusions with equal propriety. It is like the border between day and night, or between red and orange. Everyone can tell the difference except in marginal cases; and then everyone is in doubt. Each can come down
either way. When these marginal cases arise, then the practitioners be they accountants or lawyers must of necessity put them in one category or another. And then, by custom or by law, by practice or by precept, the
border is staked out with more certainty. In this at least, where no decision can be said to be right or wrong, the only safe rule is to go by precedent. So the thing to do is to search through the cases and see whether the instant problem has come up before. If so, go by it. If not, go by the
nearest you can find."
The Bench did exactly that. And observed,
While dealing with this complex issue, three tests generally applied to decide the nature of expenditure as to whether it is capital or revenue, are the test of
1. enduring benefit,
2. ownership test and
3. functional test.
Applying the said tests, expenditure is treated as capital expenditure either when it results in acquisition of capital asset by the assessee as owner thereof or when it results in accrual of advantage of enduring nature to the assessee in the capital field. In the first situation, the ownership
test assumes greater significance because the acquisition of capital asset by the assesses as a result of incurring expenditure is a condition. If the expenditure is resulting merely in acquisition or creation of asset without
the assessee becoming owner thereof, it cannot be said that the said expenditure is a capital expenditure. The coming into existence of an asset as a result of incurring expenditure alone thus is not sufficient to treat
the said expenditure as of capital nature unless the asset coming into existence is also owned by the assesses.
In other situation, the expenditure can be treated as capital expenditure only when it results in accrual of advantage of enduring nature to the assesses in the capital field. The relevant tests applied to determine the nature of expenditure in such a situation are the functional tests and the test of enduring benefit. An advantage is to be considered as of enduring benefit if the benefit accruing is not of a transient nature but is of such durability as to justify it being treated as a capital asset.
The Tribunal considered in detail the landmark decision of the Sc in the famous TCS case on software and observed,
(i) it is no doubt true that a transaction of sale of computer software package off the shelf was held to be a sale of "goods" by the Supreme Court in the case of TCS relying, inter alia, on the extended definition given in
Section 2(n) of the Andhra Pradesh General Sales Tax Act. 1957. But it was not the only basis on which the decision of the Hon'ble Apex Court was exclusively based. First and foremost, there was a reference made to the
decisions of American Courts rendered in several cases including especially the cases of Commerce Union Bank v. Tidwell.
(ii) On the other hand, the view of American Court on the issue as well as its own decision rendered in the case of Associated Cement Co. (supra) in the context of Customs Act wherein the definition of the term "goods'" given
was not as wide or exhaustive as the definition of term "goods" in the A.P. Sales Tax Act was taken into account and relied upon by the Hon'ble Supreme Court to hold that a software, whether customised or non-customised,
satisfies all the attributes of being a "goods' and as such, the same is capable of being bought and sold add becomes an object of trade and commerce.
(iii) the ratio laid down by the Supreme Court in the case of TCS holding that computer software put in a medium of disk would be goods can only lead to the conclusion that purchase of such disk is acquiring a tangible asset.
(iv) If the disk, tape or floppy or other electronic medium in which the software is stored is by itself goods, then the assessee, who acquires the same, acquires a tangible asset.
(v) Computer Software has not been defined in the Act, but in Note-7 to Appendix-I to the I.T. Rules, it has been explained to include computer programme recorded on any disc, tape, perforated media or other information
storage device. Therefore computer software (whether in canned form or uncanned form) is goods and a tangible asset by itself.
(vi) The question whether an assessee by purchase of a disk containing software has purchased a capital asset or not should not, therefore, be viewed from the angle of acquisition of any copyright or any of the bundle
of rights comprised in such copy right.
(vii) An assessee purchasing such a software becomes owner thereof. But the test of ownership in the computer software in the light of the question whether the same is capital or revenue cannot be decided on the basis of
ownership test alone but has to be seen from the point of its utility to businessman and to see how important an economic or functional role it plays in his business.
(viii) In other words, the functional test becomes more important and relevant because of the peculiar nature of a computer software and its possible use in different areas of business reaching either capital or revenue field or its utility to a businessmen which may touch either capital
or revenue Held.
(ix) The manner in which the computer software is used is again peculiar, General mode is to acquire computer software on a license. That by itself will not be sufficient to conclude that the said expenditure is revenue
expenditure, if on application of the functional test, it is fond that the expenditure operates to confer a benefit in the capital field.
(x) On the other hand, some computer software may have a very limited economic life so as to be treated as capital expenditure, though owned by an assessee.
Whether expenditure on computer software gives an enduring benefit to an assessee:
For ascertaining as to whether expenditure on computer software gives an enduring benefit to an assessee, the duration of time for which the assessee acquires right to use the software becomes relevant. Having regard to the
fact that software becomes obsolete with technological innovation and advancement within a short span of time, if can be said that that where the life of the computer software is shorter (say less than 2 years), it may be
treated as revenue expenditure. It is also evident from the amendment to the law w.e.f. 1.4.2003 granting 60% depreciation on computer software that even
the legislature considers the life of computer software as about two years by providing the higher rate of depreciation @ 60% thereon so as to enable assessee to write off the same to the extent of 84% even when treated as
capital asset within a period of two years. An assessee may own a software outright or be a licensee but the same ratty operate to confer benefit only in the revenue field and therefore is may have to be regarded as Revenue
Expenditure.
So the Tribunal concluded:-
(i) When the assessee acquires a computer software or for that matter the license to use such software, he acquires a tangible asset and becomes owner thereof as held above relying on the decision of Supreme Court in the case
of TCS.
(ii) Having regard to the fact that software becomes obsolete with technological innovation and advancement within a short span of time. It can be said that where the life of the computer software is shorter (say less
than 2 years), it may be treated as revenue expenditure. Any software having its utility to the assessee for a period beyond two years can be considered as accrual of benefit of enduring nature. However, that by itself will not
make the expenditure incurred on software as capital in nature and the functional test also needs to be satisfied.
(iii) Once the tests of ownership and enduring benefit are satisfied, the question whether expenditure incurred on computer software is capital or revenue has to be seen from the point of view of its utility to a businessman and how important an economic or functional role it plays in his
business. In other words, the functional test becomes more important and relevant because of the peculiar nature of the computer software and its possible use in different areas of business touching either capital, or revenue field or its utility to a businessman which may touch either capital
or revenue field.
Having laid down the criteria for determining the nature of expenditure incurred on acquisition of software, whether capital or revenue, the Special Bench was of the view that these criteria need to be applied to determine
the exact nature of expenditure incurred by the assessees in the present cases for acquiring different softwares. Since this exercise is required to be done in respect of each and every software independently having regard to
the criteria laid down above, the matter needs to be restored back to the file of the Assessing Officer for doing such exercise. The AO shall examine the question whether expenditure on computer software is capital or revenue
in the light of the criteria laid down above after giving an opportunity of being heard to the assessees. If on such examination, the AO comes to the conclusion that the expenditure is capital expenditure, then the question
regarding allowing depreciation will be decided in accordance with the principles laid down.
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