2011 (7) TMI 523 - HC - Income Tax

Non-compete agreement payments not taxable as capital gains pre-2003

The Tribunal held that the amount received under a non-competition agreement was not taxable as capital gains due to the absence of specific provisions ... Capital gains or Business income - Amount received under non-competition agreement - The assessee is not the person who has transferred the assets of the companies and the firms in which he was actively involved - Held that:- Under a separate agreement for transfer of assets and right to manufacture, separate consideration has been paid and for which tax is collected from the companies which received the consideration for such transfer - The present agreement no doubt came to be executed contemporaneously on the same day but, the consideration paid under this agreement is to the assessee not to compete with the purchaser in respect of the subject matter of the other agreement - In the first place, the assesses has not transferred any capital asset to the purchaser - It has not transferred any right to produce or manufacture any article. The consideration paid to him is not to compete - Therefore, the case would not fall under Section 55(2) of the. Act. It is because it was not falling under Section 55(2) and was not falling under any other provisions of the Act - Therefore, only from 1.4.2003 the consideration received under a non-competition agreement is chargeable to tax under the heading of profits and gains of business. Issues:1. Taxability of amount received under non-competition agreement as capital gains.2. Interpretation of Section 28(va) of the Income Tax Act.3. Applicability of Section 55(2)(b) to the transaction.4. Liability to pay interest under Section 234B.Analysis:1. The case involved a dispute over the tax treatment of an amount received under a non-competition agreement as capital gains. The Tribunal held that the amount received by the assessee was not taxable, as prior to April 1, 2003, such amounts were not taxable under the relevant provisions. The Tribunal's decision was based on the fact that the Finance Act, 2002, introduced amendments for taxing non-competition fees under Section 28(va) with effect from April 1, 2003. The revenue contended that the amount should be treated as business income under Section 45 read with Section 55. However, the Tribunal found that the specific provisions for taxing such amounts were introduced only from April 1, 2003, and therefore, the amount received before this date was not taxable as capital gains.2. Section 28(va) of the Income Tax Act, inserted by the Finance Act, 2002, deals with income chargeable under the head 'Profits and gains of business or profession.' The provision states that any sum received under an agreement for not carrying out any business activity or not sharing know-how is taxable. The Tribunal reasoned that since this provision was not in force before April 1, 2003, the amount received under the non-competition agreement could not be taxed as business income. The Tribunal emphasized that the legislative intent behind the amendment was to address a gap in the taxation of such receipts, making them taxable only from April 1, 2003.3. The argument regarding the applicability of Section 55(2)(b) was raised by the revenue to support the contention that the amount should be treated as capital gains. However, the Tribunal found that the assessee did not transfer any capital asset under the non-competition agreement. The consideration received was for refraining from competing with the purchaser, not for transferring any rights to manufacture or produce goods. As a result, the Tribunal concluded that Section 55(2)(b) did not apply to the transaction, and the amount received was not taxable as capital gains.4. Lastly, the issue of interest under Section 234B was raised. Since the Tribunal determined that the amount received was not taxable as capital gains, the question of levying interest did not arise. Therefore, the Tribunal did not address this issue in its decision. Overall, the Tribunal's decision to set aside the revenue's claim and hold that the amount received under the non-competition agreement was not taxable as capital gains was upheld, providing clarity on the tax treatment of such receipts before and after the relevant legislative amendments.