TMI Blog2012 (3) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... any or a person (other than a company) resident in India, is engaged in the business of export out of India of computer software or its transmission from India to a place outside India by any means and providing technical services outside India in connection with the development or production of computer software - there is no substantial or material difference in provisions of section 80HHC(1) and section 80HHE(1)-because section 80HHE specifically deals with the export of computer software with effect from April 1, 1991,it does not mean that the operation of section 80HHC of the Act is excluded prior to April 1, 1991 - assessee was entitled to the benefit of section 80HHC - 42 of 1999 - - - Dated:- 2-1-2012 - MADAN B. LOKUR, SANJAY KUM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion specifically intended to cover exports of computer software. 4. The Commissioner was, therefore, of the view that first of all computer software recorded on magnetic tapes was not "goods" within the meaning of section 80HHC of the Act and in any event, in view of the introduction of section 80HHE in the Act, the view that he had taken that computer software recorded in magnetic tapes was not covered under section 80HHC of the Act was fortified. Accordingly, the order of the Assessing Officer was set aside. 5. Feeling aggrieved, the assessee preferred an appeal before the Income- tax Appellate Tribunal (for short, "the Tribunal") and the appeal was allowed. This has led to the filing of the present appeal under section 260A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 9. On a reading of the aforesaid two judgments of the Supreme Court, it is frankly stated by learned counsel for the Revenue that marketable com- puter software has the attributes of goods for the purposes of sales tax and also for the purposes of the Income-tax Act, particularly section 80HHC thereof. 10. This view has also been taken by the Madras High Court in CIT v. Superstar Music [2007] 291 ITR 8 (Mad). 11. We see no error in the concession given by learned counsel for the Revenue inasmuch as it is quite clear that for the purposes of section 80HHC (1) of the Act, computer software recorded on magnetic tapes or floppies, discs or CDs, etc., would amount to goods or merchandise. 12. Under these circumstances, the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific provision having been introduced in the Income-tax Act (section 80HHF) for the purposes of export or transfer of film software, that did not exclude the provisions of section 80HHC of the Act prior to the introduction of section 80HHF. All that transpired was that so far as the assessee is concerned, it could specifically claim a deduction under section 80HHF of the Act instead of having to fall back on the general provision of section 80HHC thereof. 16. In our opinion, this rationale would apply to the interpretation of section 80HHE of the Act. Merely because section 80HHE specifically deals with the export of computer software with effect from April 1, 1991, it does not mean that the operation of section 80HHC of the Act is ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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