2010 (12) TMI 680 - HC - Income Tax

Capital gain - transfer of business - evasion of tax or avoidance of tax - business of the assessee firm was taken over as a going concern by a limited company known as Indo Tech Transformers Limited by virtue of an agreement dated 15.07.1994 - The agreement between the assessee and the limited company does not make any mention about the payment received for the goodwill. The assesee was not involved in the sale of technical know-how - it is clear that in as much as the assessee firm has been taken over as a going concern, it could not have been taken over without the so-called technical know-how - It is not the case of the assessee that it has been selling the technical know-how to any other third party. The agreement also does not provide a clause to the effect that the assessee shall not indulge in the same business - . It is a well settled principle of law that what is permissible is avoidance but not evasion. When an attempt is made by a company to evade tax it is the bounden duty of the authorities to lift the corporate veil and find out the real intention behind the same. It is the duty of the Court in every case, where ingenuity is expended to avoid taxing and welfare legislations, to get behind the smoke screen and discover the true state of affairs - The Supreme Court in the case of Juggilal Kamlapat v. CIT 1968 -TMI - 5134 - SUPREME Court held that in cases where the same persons entered into transactions though by introducing a corporate personality into some of those transactions, the income-tax authorities are entitled to pierce the veil of the corporate personality and look at the reality of the transaction - Decided against the assessee by holding that what has been done by the assessee is to evade tax and not to avoid.

Summary

Issues Involved:
1. Taxability of the value of technical know-how as Long Term Capital Gain.
2. Taxability of compensation received for pending orders as Long Term Capital Gain.
3. Taxability of compensation received for expected orders under negotiation as Long Term Capital Gain.

Detailed Analysis:

1. Taxability of the Value of Technical Know-How as Long Term Capital Gain:
The assessee, a manufacturer of transformers, transferred its business to a limited company, receiving Rs. 1,25,00,000/- for technical know-how. The Assessing Officer (AO) treated this amount as taxable under Long Term Capital Gain, arguing it was part of a composite receipt for intangible assets, including goodwill, which is taxable under Section 55(2) of the Income Tax Act, 1961. The Commissioner of Income Tax (Appeals) (CIT(A)) disagreed, stating technical know-how is a capital asset and not taxable as long term capital gain. The Tribunal reversed CIT(A)'s decision, asserting the amount represented goodwill and was a device to evade tax. The Tribunal noted the absence of any record of technical know-how in the balance sheet and no prior sale of such know-how. The High Court upheld the Tribunal's view, emphasizing the lack of material evidence to support the cost of technical know-how and the attempt to evade tax by mischaracterizing the receipt as technical know-how.

2. Taxability of Compensation Received for Pending Orders as Long Term Capital Gain:
The assessee received Rs. 36,16,139/- as compensation for pending orders, which it claimed was non-taxable. The AO included this amount in taxable income under long term capital gain. CIT(A) allowed the assessee's claim, stating such compensation is a common business practice and not taxable. The Tribunal, however, sided with the AO, arguing the compensation was part of a composite receipt intended to cover intangible assets, including goodwill, and thus taxable. The High Court supported the Tribunal, noting the compensation was a device to diminish the value of assets and evade tax.

3. Taxability of Compensation Received for Expected Orders Under Negotiation as Long Term Capital Gain:
The assessee received Rs. 33,00,000/- as compensation for expected orders under negotiation. The AO taxed this amount under long term capital gain. CIT(A) rejected the claim, labeling the payment as speculative and imaginary. The Tribunal upheld this view, stating the payment was unascertained and speculative. The High Court agreed, emphasizing the lack of competition between the assessee and the new company, and the absence of any contractual clause preventing the assessee from engaging in the same business.

Conclusion:
The High Court dismissed the appeals filed by the assessee, answering all substantial questions of law against the assessee and in favor of the revenue. The court concluded that the assessee attempted to evade tax by mischaracterizing receipts as technical know-how and non-compete fees, which were actually goodwill and taxable under Section 55(2) of the Income Tax Act, 1961. The court emphasized the need to lift the corporate veil to discern the true nature of the transactions and prevent tax evasion.