Non compete fees for giving up right to carry on business is taxable as business income

As regard the provisions of sec.28(va), the Tribunal held that with the insertion of the said provisions w.e.f. 01.40.2003, receipts on account of giving up right to carry on business even if it is capital receipt would now be charged to tax as ‘income from business’. It was held that if the compensation is paid for ‘not carrying out any activity in relation to any business’ which the ‘transferor’ is not carrying on, the same would be chargeable u/s.28(va) of the Act. It was held that if the transferor is not already carrying on

business then what he receives as non-compete fees is the consideration only for “not carrying out any activity in relation to any business”, which would be covered by the provisions of sec.28(va) of the Act w.e.f. 01.04.2003. The consideration paid to Dr. B.V. Raju, which is similar to the one involved in the present cases, therefore was held by the Special Bench as falling under the category of payment for “not carrying out any activity in relation to any business” as covered by the provisions of sec.28(va)(a) and since the said provisions were applicable w.e.f. 01.04.2003, the amount received by Shri B.V. Raju as ‘non-compete fees’ in the previous year relevant to A.Y. 2000-01 was held to be not chargeable to tax. In our opinion, the ratio of the decision of the Special Bench in the case of Dr. B.V. Raju is squarely applicable to the facts of the present cases and since the same is binding on us, we respectfully follow the same to hold that the ‘non-compete fees’ received by the assessees in the present cases is chargeable to tax as ‘business income’ as held by the AO and not as ‘capital gains’ as held by the Ld. CIT (A). The impugned orders of the Ld. CIT (A) on this issue passed in the cases of all assesses (except in the case of Ruia Apparels Pvt. Ltd.) are, therefore, set aside restoring back that of the A.O. and the appeals filed by the revenue in these eight cases are allowed. As already noted, the Ld. CIT(A) in the case of Ruia Apparels Pvt. Ltd. however took a view that the non-compete fees was chargeable tax as business income.

 INCOME TAX APPELLATE TRIBUNAL, MUMBAI

ITA No.2793/Mum/2010 – (Assessment year: 2006-07)

Sterling Re-rolling Mills Pvt. Ltd. & Others

Vs

Asst. Commissioner of Income-tax-2(3)

Date of Pronouncement: 20.06.2012

O R D E R

PER BENCH:

Out of these 17 appeals, 16 appeals are Cross appeals filed in the cases of eight assesses for A.Y. 2006-07 while the remaining seventeenth appeal is the appeal filed by the assessee namely M/s. Ruia Apparels P. Ltd. for A.Y. 2006-07. Since common issues are involved in these appeals, the same have been heard together and are being disposed off by a single composite order.

2. The main common issue involved in these appeals as raised in the solitary ground of all the eight appeals of the revenue as well as ground no. 1 of all the nine appeals of the assessee relates to the taxability of non-compete fees receive by all the nine assessees in the present case.

3. The assessee companies in the present cases along with some other entities were promoters of a company namely M/s. Dawn Mills Co. Ltd. and were holding 52.60 percent shares of the said company. They agreed to transfer their shares and controlling interest in M/s. Dawn Mills Co. Ltd. as per the shares purchase agreement dated 24.11.2005. As per the said agreement, the shares were agreed to be sold at a price of Rs.4,642/- per share. In addition, a sum of Rs.1,161/- per share was received by the transferor of shares including the assessees companies towards ‘non-compete fees’. The said amount received on account of ‘non-compete fees’ was considered by the assessees as part of the sale consideration for transfer of shares while computing the capital gains arising on transfer of shares and the same was offered to tax @ 10% without indexation. This claim of the assessees was examined by the A.O. and the same was found to be not acceptable by him for the elaborate reasons given in the assessment orders. He held that the ‘non-compete fees of Rs.1,162/- per share received by the assessees companies was not part of the consideration for sale of shares of M/s. Dawn Mills Co. Ltd. but the same constituted ‘business income’ chargeable u/s.28(va) of the Act. On appeal, the Ld. CIT (A) agreed with the A.O. that the consideration of Rs.1,161/- per share received by the assessees companies on account of ‘non-compete fees’ did not represent part of the sale proceeds of shares of M/s. Dawn Mills Co. Ltd. He, however, held relying on some Tribunal’s decision that the ‘non-compete fees’ received by them were chargeable to tax as ‘capital gains’ and not ‘business income’. In the case of Ruia Apparels Pvt. Ltd. (ITA No. 6147/M/2010), the Ld. CIT(A), however, took a different view holding that the amount of non-compete fees was chargeable to tax as business income. Aggrieved by the orders of the Ld. CIT (A) on this issue, the assessees and the revenue both have raised their respective grievances in the present appeals filed before the Tribunal.

4. At the time of hearing before us, the Ld. Counsel for the assessee has not pressed the relevant ground i.e. ground no.1 of the assessees’ appeals on this issue challenging the decision of Ld. CIT (A) treating the non-compete fees received by them as capital gain chargeable to tax except in the appeal filed in the case of Ruia Apparels Pvt. Ltd. where the Ld. CIT (A) has himself treated the noncompete fees as business income. Ground no. 1 raised in the eight appeals of the assessees (barring ITA NO. 6147/M/2010) is accordingly dismissed as not pressed.

5. As regards this issue raised in all the eight appeals of the Revenue and the appeal of the assessee filed in the case of Ruia Apparels Pvt. Ltd. (ITA No. 6147/M/2010) to the extent whether the ‘non-compete fees’ received by the assessees in the year under consideration is chargeable to tax as capital gains or business income, we have heard the arguments of the Ld. Representatives of both the sides and also perused the relevant material on record. It is no doubt true that in some of the cases including the cases of associated concerns of the assessee companies wherein similar amount of ‘noncompete fees’ was received, the co-ordinate Benches of this Tribunal have taken a view in favour of the assessee holding that the compete fees was chargeable to tax in the hands of the assessees as ‘capital gains’. However, a similar issue thereafter was referred to a Special Bench of the Tribunal of Hyderabad in the case of ACIT vs. Dr. B.V. Raju and the same has been decided by the Special Bench on February 13, 2012 vide its order reported in 135 ITD 1 (Hyderabad) (SB). The said decision of the Special Bench, therefore, was brought to the notice of the Learned Representatives of both the sides and they were invited to make submissions on this issue involved in the present appeals in the light of the said decision of Special Bench. In this regard, the Ld. Counsel for the assessee has prepared and furnished a comparative statement to show that the facts involved in the present cases are different from the facts involved in the case of Dr. B.V. Raju (supra) decided by the Special Bench. On going through the said statement, it is, however, observed that the difference in facts as sought to be pointed out by the Ld. Counsel for the assessee is not material enough to say that the decision of Special Bench of the ITAT in the case of Dr. B.V. Raju (supra) has no application in the present cases.

6. As already noted, Hyderabad Special Bench of this Tribunal in its order passed in the case of Dr. B.V. Raju (supra) has considered a similar issue relating to taxability of ‘non-compete fees’ in the light of relevant provisions of the law as amended from time to time and after taking into consideration the said provisions as well as other relevant aspects of the matter in detail, the Special Bench of the Tribunal summarised its conclusion in paragraph No.37 of its order as under:

“37. The conclusion that emerges from the aforesaid discussion is that when a business is sold and the purchaser enters into agreements to ensure that there is no competition, he may enter into agreements not only with the transferor of the business but also with persons connected with the transferor. He may also pay consideration to the transferor for transfer of business, for not engaging in competition. He may also pay consideration to persons associated with the transferor not to indulge in competition. The receipts by the transferor or other persons connected with the transferor can be divided into the following categories;

a) The consideration paid by the transferee for transfer of the business to the transferor;

b) Consideration paid to the transferor not to carry on same business directly or indirectly not to indulge in manufacturing same or similar products, not to use the trade names etc. ;

c) Consideration paid to persons associated with the transferor to ensure that they also do not indulge in competing business;

It has to be clarified that the case laws in which the transferee claims the consideration paid as above as revenue expenditure have no bearing whatsoever when we deal with the case of the tax treatment in the hands of the transferee. There are different considerations for determining whether the cost paid by the transferor is to be regarded as capital expenditure or revenue expenditure.

“38. As far as category (a) is concerned the receipt would fall for consideration under the head capital gains as there is a transfer of capital asset in respect of which the machinery provisions of computation of capital gain can be applied. As far as category (b) is concerned the consideration received would fall for consideration under the head capital gain but depending upon the law that prevailed at the time of transfer. Self generated assets like, goodwill of a business or a trade mark or brand name associated with a business, a right to manufacture, produce or process any article or thing or right to carry on any business, tenancy rights, stage carriage permits or loom hours by their very nature could not have cost of acquisition and therefore machinery provisions were amended to provide cost of acquisition being treated as nil. These amendments are set out in the later part of this order. As far as category (c) is concerned, the same would fall for consideration to see if it is capital receipt chargeable to tax as on the date of transfer because after 1-4-2003 such consideration even if regarded as capital receipt would be chargeable to tax u/s.28(va)(a) of the Act. Therefore the law as it prevails on the date on which a person agrees to desist from doing certain acts in relation to any business would be relevant.

“39. If a payment is in the nature of non-compete fee received by the transferor when he sells his business and agrees not to carry on the business which he transfers then that would fall for consideration under (category (b) referred to earlier) section 55(2)(a) “right to carry on business”. If the non-compete fee is paid to persons associated with the transferor then the same would fall for consideration only under Sec.28(va)(a) of the Act introduced by the Finance Act, 2002, w.e.f 1-4-2003. It is significant to note that the words used in Sec.28(va)(a) of the Act are “not carrying out any activity in relation to any business”. The proviso (i) to Section 28(va)(a) provides for exception to cases where such receipts are taxable as capital gain viz., where any sum is received for transfer of a right to carry on any business which is chargeable to tax as capital gain. When the transferor is already carrying on business and agrees not to carry on business transferred, then the same would fall for consideration only under Sec.55(2)(a) of the Act.

“40. With the change in the law receipts on account of giving up right to carry on business even if it is capital receipt would now be chargeable to tax as income from business. The difference would be that if it is paid to the transferor for giving up right to carry on business, it would be regarded as capital gain, the cost of acquisition of right to carry on business being determined in accordance with the provisions of Sec.55(2)(a) of the Act. If it is compensation paid for “not carrying out any activity in relation to any business”, which the transferor is not carrying on, the same would be chargeable u/s.28(va)(a) of the Act. If a receipt is considered as payment for not carrying on business which the transferor is already carrying on then it would be regarded as capital gain, being transfer of a capital asset viz., right to carry on business. Thus for the provisions of Sec.55(2)(a) of the Act to apply the transferor must be carrying on a business which he agrees not to carry on. If the transferor is not already carrying on business then he receives consideration only for “not carrying out any activity in relation to any business”. In that case the provisions of Sec.28(va)(a) of the Act would apply and not the proviso thereto.”

7. Keeping in view the decision of the Special Bench of the ITAT in the case of Dr. B.V. Raju (supra) as summarised above and different ‘categorisation’ of ‘non-compete fees’ made therein, the Learned Representative of both the sides were asked to make submissions as to under which ‘category’ the amounts in question received by the assessees in the present case as ‘non-compete fees’ would fall? The Ld. Counsel for the assessee in this regard has submitted that the amounts received by the assessees in the present cases would fall under category as mentioned in para 37(b) of the special bench order being consideration paid to the transferor not to carry on same business directly or indirectly by not indulging in manufacturing same or similar product. He has submitted that the assessee companies in the present cases were having controlling interest in M/s. Dawn Mills Co. Ltd. and they being the ‘transferors’ of the said ‘controlling interest’, their cases are covered by para 37(b) and not by para 37(c)’ which covers the persons associated with the ‘transferor’. He has submitted that the assessee companies in the present cases are not the persons associated with the transferor but they themselves are the ‘transferor’ directly which are covered in ‘Category given in para 37(b)’.

8. The Ld. D.R., on the other hand, has submitted that what is meant by “transferor” as mentioned in para 37(b) and 37(c) of the order of special bench is the transferor of the business and not the transferor of shares or controlling interest. She has submitted that such ‘transferor of business’ in the present case was M/s. Dawn Mills Co. Ltd., which was actually in the business and the assessee companies were only associated with the said ‘transferor’ i.e. M/s. Dawn Mills Co. Ltd. being Promoter/shareholder. She has submitted that the case of the assessee thus is squarely covered by para 37(c) of the order of the Special Bench of the Tribunal in the case of Dr. B.V. Raju (supra) and the consideration paid to the assessees which were associated with ‘transferor of the business’ i.e. M/s. Dawn Mills Co. Ltd. not to indulge in competing business is chargeable to tax as ‘business income’ as per the provisions of sec.28(va)(a) of the Act inserted by the Finance Act, 2002 w.e.f. 1.4.2003. She has submitted that the issue involved in the present cases thus is squarely covered in favour of the revenue and against the assessees by the decision of the Special Bench of the Tribunal in the case of Dr. B.V. Raju which is binding on this Division Bench.

9. After considering the rival submissions and perusing the relevant material on record, we are inclined to agree with the contention of the Ld. D.R. on this issue. It is observed that the facts which are material in the present context as involved in the present cases are similar to the case of the Dr. B.V. Raju (supra) decided by Special Bench of the ITAT. In the said case, Dr. B.V. Raju was a ‘promoter’ and ‘shareholder’ of two cement companies viz. RCL and SVCL while the assessees companies in the present cases were the ‘promoters’ and ‘shareholders’ of M/s. Dawn Mills Co. Ltd. Although Dr. B.V. Raju was not having controlling interest in RCL& SVCL, this aspect of the matter, in our opinion, is not very relevant in the present context. In any case, all the assessee companies in the present cases collectively with some other companies were having controlling interest in Dawn Mills Co. Ltd. and not individually. In the case of Dr. B.V. Raju, RCL and SVCL were taken over by some other company similar to the taking over of M/s. Dawn Mills Co. Ltd. in the present case by some third party. The company who took over RCL & SVCL paid ‘non-compete fees’ to Dr. B.V. Raju similar to payment of non compete fees made in the present cases to the assessee companies by party taking over the M/s. Dawn Mills Co. Ltd. The issue involved in the cases of Dr. B.V. Raju (supra) for the consideration of Special Bench was relating to the taxability of said non-compete fees in the light of the provisions of sec.55(2)(a) of the Act as amended from time to time dealing with capital gains as well as the provisions of sec.28(va)) as inserted by the Finance Act, 2002 w.e.f. 01.04.2003.

10. In this context, the Special Bench noted that the expression used in the provisions of sec.55(2a) was “a right to manufacture, produce or process any article or thing” while the expression used in sec.28(v)(a) was a “a right to carry on a business”. The Special Bench held that theses two expressions have definite and different connotation. Explaining further, it was observed by the Special Bench that the expression used in sec.55(2)(a) contemplates existence of right to manufacture, produce or process an article or thing otherwise the question of extinguishment or curtailment of such a right would not have been contemplated by the Legislature. It was held by the Special Bench that it would be reasonable to presume that what has sought to be covered by the expression “a right to manufacture, produce or process any article or thing used any article u/s.55(2)(a) is intangible asset in the form of patent or a similar right. It was held by the Tribunal that when the transferor is already carrying on the business and agrees not to carry on the business transferred then the same would fall for consideration only under sec.55(2)(a) of the Act.

11. As regard the provisions of sec.28(va), the Tribunal held that with the insertion of the said provisions w.e.f. 01.40.2003, receipts on account of giving up right to carry on business even if it is capital receipt would now be charged to tax as ‘income from business’. It was held that if the compensation is paid for ‘not carrying out any activity in relation to any business’ which the ‘transferor’ is not carrying on, the same would be chargeable u/s.28(va) of the Act. It was held that if the transferor is not already carrying on business then what he receives as non-compete fees is the consideration only for “not carrying out any activity in relation to any business”, which would be covered by the provisions of sec.28(va) of the Act w.e.f. 01.04.2003. The consideration paid to Dr. B.V. Raju, which is similar to the one involved in the present cases, therefore was held by the Special Bench as falling under the category of payment for “not carrying out any activity in relation to any business” as covered by the provisions of sec.28(va)(a) and since the said provisions were applicable w.e.f. 01.04.2003, the amount received by Shri B.V. Raju as ‘non-compete fees’ in the previous year relevant to A.Y. 2000-01 was held to be not chargeable to tax. In our opinion, the ratio of the decision of the Special Bench in the case of Dr. B.V. Raju is squarely applicable to the facts of the present cases and since the same is binding on us, we respectfully follow the same to hold that the ‘non-compete fees’ received by the assessees in the present cases is chargeable to tax as ‘business income’ as held by the AO and not as ‘capital gains’ as held by the Ld. CIT (A). The impugned orders of the Ld. CIT (A) on this issue passed in the cases of all assesses (except in the case of Ruia Apparels Pvt. Ltd.) are, therefore, set aside restoring back that of the A.O. and the appeals filed by the revenue in these eight cases are allowed. As already noted, the Ld. CIT(A) in the case of Ruia Apparels Pvt. Ltd. however took a view that the non-compete fees was chargeable tax as business income. The impugned order of the Ld. CIT(A) passed in the said case on this issue is therefore upheld dismissing the relevant appeal of the assessee.

12. The next common issue as raised in ground no.2 of the appeals of the assessees filed in the cases of Ruia Industries Pvt. Ltd. (ITA No. 2792/M/2010), Sterling Re-rolling Mills Pvt. Ltd. (ITA No. 2793/M/2010), Vinaya Trading Co. Ltd. (ITA No. 2389/M/2010) and SJS Investments Pvt. Ltd. (ITA No. 2790/M/2010) relates to the disallowance made by the A.O. and confirmed by the Ld. CIT (A) on account of assessees’ claim for long-term capital loss on sale of shares of M/s. Special Paints Ltd. And other companies.

13. The concerned assessees had debited substantial amount in their profit and loss account of loss on account of sale of shares of M/s. Special Paints Ltd. and other companies. During the course of assessment proceedings, the A.O. required the assessees to furnish the complete details of the said loss as well as to produce the supporting evidence in the form of Broker’s Note, Demat account etc. Although the assessee furnished relevant details showing that the shares of M/s. Special Paints Ltd. were sold at the face value, the documentary evidence required by the A.O. was not furnished by the assesses. The assessees also could not satisfactorily explain the reason for selling the shares of M/s. Special Paints Ltd. at face value. It was only explained that the said shares were transferred as a part of the family settlement between the two groups of the Ruia Family who were holding shares in the various group companies. This explanation of the assessee was not found acceptable by the A.O. and in the absence of relevant details and documents, he held that transfer of shares at face value as a part of the family settlement could not be regarded as ‘transfer’ and invoking the provisions of section 47(iv), he treated the loss as a notional loss. Accordingly, the loss on sale of shares claimed by the assessees was disallowed by him.

14. The matter was carried before the Ld. CIT (A) and it was submitted on behalf of the assessees before him that A.O. had wrongly considered the facts inasmuch as the shares of M/s. Special Paints Ltd. were sold at market price and the valuation report of the C.A. indicated that the said company had no reserves and was a loss making BIFR company. It was also submitted that the value of the said shares was negative at the relevant time. This stand of the assessee was not found acceptable by the Ld. CIT (A). According to him, the report of Directors of Special Paints Ltd. available in the paper book filed by the assessee was sufficient to show that the networth of the said company was not negative but the same had turned positive as on 31st March, 2005. He also noted that new share capital worth Rs 3.16 crores was issued by the said company by issuing right shares during the financial year 2004-05 at Rs.25 per share. Keeping in view all these facts, the Ld. CIT (A) confirmed the disallowance made by the A.O. on account of loss claimed by the assesses on sale of shares of M/s. Special Paints Ltd. and other companies.

15. We have heard arguments of both the sides on this issue and also perused relevant material on record. The Ld. Counsel for the assesses has submitted that the claim of the assesses for loss on sale of shares of Special Paints Ltd. has been disallowed by the A.O. as well as by the Ld. CIT (A) on wrong assumptions of facts. He has submitted that the said shares were not transferred by the assessees at face value as wrongly presumed by the A.O. He has submitted that it was also not a case of transfer of shares by the assessee to its subsidiary company and the A.O., therefore, was not justified to invoke the provisions of sec.47(iv) to treat the loss claimed by the assessee as a ‘notional loss’. He has submitted that right shares were issued by M/s. Special Paints Ltd. at Rs.25/- per share as per the order of BIFR and the Ld. CIT (A) was not justified in assuming that the net-worth of the said company was not negative by relying on the share price of right issue. The Ld. Counsel for the assessee thereafter has taken us through the documentary evidence filed in his paper book to show that the net worth of M/s. Special Paints Ltd. was negative at relevant time and the said company was referred to BIFR. He has submitted that the claim of the assessee for loss on sale of shares of Special Paints Ltd. is thus required to be decided on merits in the light of the documentary evidence available with the assessee and the matter may therefore be sent back to the A.O. for such examination. Since the Ld. D.R. has not raised any objection in this regard keeping in view the submissions made by the Ld. Counsel for the assessee as well as documentary evidence placed on record, we set aside the impugned orders of the Ld. CIT (A) on this issue and restore the matter to the file of the A.O. for deciding this issue afresh on merits after examining the sand of the assessee in the light of relevant documentary evidence. Ground no.2 raised by the assesses in the relevant appeals is accordingly treated as allowed for statistical purpose.

16. The next common issue as raised in ground no.3 of the appeals of the assessees filed in the cases of Sterling Re-rolling Mills Pvt. Ltd. (ITA No. 2793/M/2010), Vinaya Trading Co. Ltd. (ITA No. 2389/M/2010) and Ruia Apparels Pvt. Ltd. (ITA No. 6147/M/2010) relates to the disallowance made by the A.O. and confirmed by the Ld. CIT (A) u/s.14A r.w. Rule 8D of Income-tax Rules, 1962.

17. In their returns of income filed for the year under consideration i.e. A.Y. 2006-07, the concerned assessee companies had claimed certain income to be exempt from tax. No disallowance on account of any expenditure incurred in relation to the said exempt income, however, was made by the assessees as required by the provisions of sec.14A. The A.O. worked out such expenses by applying Rule 8D of Income-tax Rules, 1962 and made a disallowance to that extent. On appeal, the Ld. CIT (A) confirmed the said disallowance made by the A.O. u/s.14A r.w. Rule 8D relying on the decision of the Special Bench of the ITAT in the case of Daga Capital Management Pvt. Ltd. 117 ITD 169 (Mum) (SB) wherein it was held that Rule 8D has a retrospective application.

18. We have heard the arguments of both the sides on this issue and also perused the relevant material on record. As agreed by the Ld. Representatives of both the sides, this issue now stands squarely covered by the decision of Hon’ble Bombay High Court in the case of Godrej Boyce Mfg. Co. Ltd. 234 CTR 1 wherein it was held that Rule 8D of Income-tax Rules, 1962 is applicable only from assessment year 2008-09. As further held by the Hon’ble Bombay High Court, the disallowance u/s.14A for the years prior to assessment year 2008-09 has to be made by adopting some reasonable method. Respectfully following the said decision of Hon’ble jurisdictional High Court, we set aside the impugned orders of the Ld. CIT (A) on this issue and restore the matter to the file of the A.O. with a direction to recompute the disallowance of expenses to be made u/s.14A by applying some reasonable method after giving the assessees an opportunity of being heard. Ground no.3 of the relevant appeals of the assessees is accordingly treated as partly allowed for statistical purpose.

19. In its appeal being ITA No. 2588/M/2010 (Ruia Stud Farms Pvt. Ltd.), the assessee has raised the issue in ground no. 2 that the issue relating to allowability of professional fees of Rs.1,04,935/- paid to Kanga & Co., Solicitors as deduction in computation of capital gains has not been considered and decided by the Ld. CIT(A).

20. As rightly pointed out by the Ld. Counsel for the assessee from the relevant record, this issue specifically raised by the assessee in its appeal filed before the Ld. CIT (A) in ground no. III(b) has not been decided by the Ld. CIT(A) in his impugned order. We therefore direct the Ld. CIT (A) to decide the same on merit after giving the assessee an opportunity of being heard. This ground is accordingly treated as allowed for statistical purpose.

21. In the result, all the eight appeals of the Revenue are allowed whereas three appeals of the assessees being ITA Nos.2791/M/2010, 2388/M/2010 and 5189/M/2010 are dismissed and six appeals of the assessees being ITA nos.2792/M/2010, 2793/M/2010, 2389/M/2010, 6147/M/2010, 2790/M/2010 and 2588/M/2010 are treated as partly allowed for statistical purpose.

Order pronounced in the open court on this day of 20th June, 2012.