2020 (7) TMI 544 - SC - Income Tax

Supreme Court rules payment under Deed of Covenant not taxable

SHIV RAJ GUPTA Versus COMMISSIONER OF INCOME-TAX, DELHI-IV

SHIV RAJ GUPTA Versus COMMISSIONER OF INCOME-TAX, DELHI-IV - [2020] 425 ITR 420 (SC) Issues Involved1. Whether the Deed of Covenant is a restrictive covenant or a sham transaction.2. Whether the payment received under the Deed of Covenant is taxable under Section 28(ii)(a) of the Income Tax Act, 1961.3. Whether the High Court correctly interpreted and applied the provisions of Section 28(ii)(a) of the Income Tax Act, 1961.4. Whether the High Court could treat the non-compete fee as a taxable capital gain without framing a substantial question of law on this issue.Detailed AnalysisIssue 1: Nature of the Deed of CovenantThe primary contention in this appeal was whether the Deed of Covenant constituted a genuine restrictive covenant or if it was a sham transaction designed to evade tax. The appellant argued that the Deed of Covenant, which included a non-competition fee of Rs. 6.6 crores, was a legitimate agreement to prevent the appellant from engaging in the liquor business for ten years. The Deed of Covenant explicitly stated that Mr. Shiv Raj Gupta would not engage in any activities related to IMFL or beer manufacturing, marketing, or supply. The payment was justified by the appellant's extensive experience and expertise in the liquor industry.Issue 2: Taxability under Section 28(ii)(a)The Assessing Officer initially held that the payment under the Deed of Covenant was not for a restrictive covenant but was compensation for terminating the appellant's management of CDBL, thus taxable under Section 28(ii)(a) of the Income Tax Act, 1961. This section taxes any compensation received by a person managing the whole or substantially the whole of the affairs of an Indian company at or in connection with the termination of his management. The High Court agreed with this interpretation, stating that the Deed of Covenant was not a separate document but part of the overall transaction for transferring control of CDBL.Issue 3: Interpretation by the High CourtThe High Court framed the substantial question of law as whether the Rs. 6.6 crores received by the assessee was taxable under Section 28(ii)(a) or as a capital gain. The High Court concluded that the payment was part of the sale consideration for the shares and not a non-compete fee. However, the Supreme Court found that the High Court did not follow the correct procedure under Section 260-A of the Income Tax Act, 1961, as it did not formulate a substantial question of law regarding the taxability of the amount as a capital gain.Issue 4: Procedural Lapse by the High CourtThe Supreme Court highlighted that the High Court did not provide an opportunity to the parties to argue on whether the amount could be taxed under any provision other than Section 28(ii)(a). The High Court's judgment was found to be in violation of Section 260-A(4) of the Income Tax Act, 1961, which mandates that the appeal shall be heard only on the substantial questions of law formulated by the court.ConclusionThe Supreme Court set aside the High Court's judgment, emphasizing that the amount received by the appellant was for a legitimate restrictive covenant and not taxable under Section 28(ii)(a) of the Income Tax Act, 1961. The Court also reiterated that commercial expediency should be judged from the point of view of the businessman and not the revenue authorities. The appeal was allowed, and all pending applications were disposed of accordingly.