2012 (12) TMI 168 - HC - Income Tax

Income earned from non-Compete Agreement - nature of receipt of commission in addition to salary - Income from salary vs Income from business - Contract of Service or Contract for Service - Agreement was entered into in dual capacity - salary in capacity as an employee of UC and non-compete fees for not taking away business of the firm - held that - The mere fact that two agreements existed does not necessarily imply that the payment made under one agreement is not to be regarded as part of salary, when undisputably all the work done under the agreement was performed by the employee for the benefit of the employer. The fact that the employer utilised the same employee to perform different types of work under two separate agreements does not give to such payments a character other than that of salary , having regard to the wide definition of the term in Section 17(1) of the Act - Contract is Contract of Service where Employer - Employee relationship exist - assessee, in this case, also continued his employment with the firm, and was given commission for doing what he was normally expected to do, i.e. work for the said firm in his area of expertise. He was given salary for that; in addition, he was also given commission for not competing with his employer, during his employment, in regard to the same line of business, in which he worked as an employee of the firm. Therefore, the commission amount clearly was part of salary answering the description under the inclusive definition u/s 17 of the Act - question of law is answered in favour of the revenue, and against the assessee.

Summary

Issues:
1. Classification of income from a non-compete agreement as salary or business income.

Analysis:
The judgment revolves around the classification of income received from a non-compete agreement as either salary or business income. The assessee, who was a General Sales Agent of a corporation, entered into a non-compete agreement receiving a percentage of cargo freight and ticket costs in addition to his regular salary. The dispute arose when the revenue claimed that the non-compete fees should be taxed as salary income, while the assessee argued it should be considered business income.

The Assessing Officer (AO) contended that the commission received should be taxed as salary, as the firm credited a higher amount as commission compared to what the assessee declared as business income. The Commissioner of Income Tax (Appeals) held that the non-compete fees were an attempt to reduce tax liability and should be considered business income. The Tribunal, however, reversed this decision, stating that the amount could only be assessed as income from business.

The revenue argued that the non-compete fee fell under the definition of 'salary' as per the Income Tax Act, and thus the entire amount should be taxed as income from salary. On the other hand, the assessee claimed that since he controlled the business, the amount should be considered business income under Section 28(va).

The court analyzed various legal precedents and provisions of the Income Tax Act to determine the nature of the income. It was observed that the control and supervision exercised by the assessee over the business indicated a lack of an employer-employee relationship. However, the court noted the anomaly in the assessee's argument regarding the nature of the income received.

The court emphasized that if the assessee was an employee, the amount received should be considered income from salary. It was highlighted that payments made under a non-compete agreement could be treated as business expenditure only if the recipient was an employee of the firm. The court also referred to previous judgments to establish the distinction between salary income and business income in similar contexts.

Ultimately, the court ruled in favor of the revenue, concluding that the non-compete commission received by the assessee should be taxed as salary income and not as business income. The appeals were allowed in favor of the revenue, emphasizing the inclusive definition of salary under the Income Tax Act.

In conclusion, the judgment provides a detailed analysis of the classification of income from a non-compete agreement, considering various legal provisions and precedents to determine the appropriate tax treatment of the amount received by the assessee.