Jurisprudentiol – Tuesday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Service Tax

Software is goods; whether transaction would amount to sale or service would depend upon individual transaction; Parliament has legislative competency to enact law in respect of tax on service – High Court

THE writ petitions raise an important question as to whether a software would amount to goods and if so, when it is supplied to a customer pursuant to the "End User Licence Agreement" (EULA), the transaction is liable to be treated as sale or service and whether the Parliament has the legislative competency to bring in the amended provisions of Section 65(105)(zzzze) by virtue of the powers under Entry 97 of List I of Schedule VII of the Constitution of India.

Income Tax

Capital gains - Effective date of transfer of property - Date of Sale Deed or date of possession - Date of possession, says ITAT

THE issue before the Tribunal is - Whether the date of transfer of property is to be taken as the date on which Sale Deed is entered into or the date on which possession is handed over, for the purpose of charging capital gains.

CESTAT

Issue cannot be referred to Larger Bench on account of prima facie disagreement with view taken by Tribunal in earlier orders – CESTAT -LB

CAN an issue be referred to a Larger Bench on account of prima facie disagreement with the view taken by the Tribunal in the earlier orders?.

This issue was decided by the Larger Bench of the CESTAT recently.

The Larger Bench observed, “The provisions of law, as comprised under the Central Excise Act, 1944 read with the provisions of Customs Act, 1962, nowhere disclose any provision regarding the matter for reference to a Larger Bench. Undoubtedly, there are provisions for reference to a third Member in case of disagreement between the two Members of Division Bench on any issue.”

See our columns Tomorrow for the judgements