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2011 (12) TMI 387 - AT - Income TaxCapital Receipt - Non compete fee -year of taxability - AO has accepted the fact that the transfer had taken place in the A.Y. 1997-98 and accordingly, the capital gain on the transfer of the said undertaking was brought to tax - Ld. Departmental Representative submitted that assets and liabilities of Condom Division did not take place in assessment year 1997-98 and same had been transferred only after Hon ble Bombay High Court approved the scheme vide its order dt. 31.7.1997 - Held that as per Joint Venture Agreement, effective date of transfer of assets and liabilities of Condom Division of assessee to JKAL is 1st July, 1996 and under the said Joint Venture Agreement as per Clause 14.4, assessee company shall cease to continue or initiate any business which is similar or will result in competition with the Condom Business of JKAL - amount of Rs. 1 crore received by assessee as per Non Compete Agreement dt. 4.1.1997 is to be assessed in the assessment year 1997-98 and not in assessment year 1998-99.
Issues Involved:
1. Taxability of the non-compete fee received by the assessee. 2. Determination of the effective date of transfer for tax purposes. 3. Consistency in the tax treatment of similar transactions. Issue-Wise Detailed Analysis: 1. Taxability of the Non-Compete Fee Received by the Assessee: The Department appealed against the order of the CIT(A) concerning the non-compete fee of Rs. 1 crore received by the assessee. The assessee argued that the non-compete fee was a capital receipt and not taxable. The AO, however, considered it taxable under the head capital gain for the assessment year 1998-99, as the High Court order approving the scheme of arrangement was received only in August 1997, making the scheme operative thereafter. The CIT(A) held that the non-compete fee, though received in the assessment year 1998-99, should be considered in the assessment year 1997-98, as the effective date of transfer was 1st July 1996. The Tribunal upheld the CIT(A)'s decision, stating that the right to receive the non-compete fee accrued in the assessment year 1997-98, linked with the transfer of the Condom Division effective from 1st July 1996. 2. Determination of the Effective Date of Transfer for Tax Purposes: The effective date of transfer was a critical issue. The Joint Venture Agreement specified 1st July 1996 as the effective date for the transfer of assets and liabilities of the Condom Division to JKAL. The High Court approved this scheme on 31st July 1997. The CIT(A) and the Tribunal relied on the Supreme Court's decision in Marshall Sons and Co. (India) Ltd. vs ITO, which held that the effective date of transfer is the date specified in the scheme unless the Court specifies otherwise. Thus, the effective date of transfer was 1st July 1996, and all rights and liabilities crystallized on this date. 3. Consistency in the Tax Treatment of Similar Transactions: The assessee argued that the AO had inconsistently taxed similar transactions. For instance, Raymond Ltd., under the same non-compete agreement, received Rs. 60 lakhs, which was taxed in the assessment year 1997-98. Additionally, the capital gain on the transfer of the Condom Division was taxed in the assessment year 1997-98, even though the shares were allotted in the assessment year 1998-99. The Tribunal noted this inconsistency and upheld the CIT(A)'s decision to tax the non-compete fee in the assessment year 1997-98, maintaining consistency in the tax treatment of similar transactions. Conclusion: The Tribunal dismissed the Department's appeal, upholding the CIT(A)'s order that the non-compete fee of Rs. 1 crore received by the assessee should be considered in the assessment year 1997-98, based on the effective date of transfer being 1st July 1996. The decision was consistent with the Supreme Court's ruling in Marshall Sons and Co. (India) Ltd. vs ITO and ensured uniform tax treatment for similar transactions.
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