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2014 (12) TMI 935 - HC - Income TaxRevision of an order u/s 263 - erroneous and prejudicial to revenue order - Interpretation of Sections 28(ii)(c) and 45 - Transfer of goodwill taxable as 'profits and gains of business' under Section 28(ii)(c) of the Income Tax Act and not under the head 'capital gains' - Held that - By Sub-Agency Agreement dated 8.11.1992, Sea Land (I) Ltd. appointed CHAKIAT as their sub-agents in South India for all cargoes carried by Sea Land Service Inc., USA - Clause (1) of the agreement dated 1.6.2000 provided that the assessee will transfer to MAERSK the shipping sub-agency business related to Sea Land and covered by the Sub-Agency Agreement dated 8.11.1992 along with goodwill in relation thereto assessee is a recipient of certain amount for holding an agency in India for the activities relating to the business of Sea Land (I) Ltd. and it is only in connection with the termination of the agency, the assessee received certain payment under Clause (1) of the agreement dated 1.6.2000 by transferring such rights covered by the sub-agency to MAERSK and that is referable to the initial Sub-Agency Agreement dated 8.11.1992 - Section 28(ii)(2) would come into play and the income received by the assessee has to be certainly treated as profits and gains of business - it can partake the character of transfer of capital asset, as what is transferred is the sub-agency and goodwill attached. The Tribunal was rightly of the view that the AO has not applied the correct provision of law and the CIT was justified in invoking Section 263 of the Act to revise the erroneous order - Insofar as prejudice to the interest of the revenue is concerned, it is apparent on the face of the record that but for the application of Section 28(ii)(c) of the Act, the assessee would be entitled to the benefit of claiming the receipt of the amount as capital gains under Section 45 of the Act and the consequent exemption that they have sought for. Therefore, the claim of the assessee would certainly be prejudicial to the interest of the revenue the order of the Tribunal is upheld Decided against assessee.
Issues Involved:
1. Taxability of consideration received for transfer of goodwill as 'profits and gains of business' under Section 28(ii)(c) versus 'capital gains' under Section 45 of the Income Tax Act. 2. Whether the consideration received was for the transfer of agency business or for 'goodwill' in the absence of a subsisting agency agreement at the time of receipt. Issue-Wise Detailed Analysis: 1. Taxability of Consideration Received for Transfer of Goodwill: The primary issue is whether the consideration received by the appellant for the transfer of goodwill should be taxed under 'profits and gains of business' as per Section 28(ii)(c) or under 'capital gains' as per Section 45 of the Income Tax Act. The appellant argued that the consideration received for the transfer of goodwill is a profit or gain from the transfer of a capital asset, thus falling under Section 45 and not under Section 28(ii)(c). The court referred to the relevant provisions: - Section 28(ii)(c): Income chargeable to tax under 'profits and gains of business or profession' includes any compensation or payment received by a person holding an agency in India in connection with the termination of the agency. - Section 45: Any profits or gains arising from the transfer of a capital asset are chargeable to income tax under the head 'capital gains'. The court analyzed the nature of the agreement dated 1.6.2000 between the appellant and MAERSK, which involved the transfer of the shipping sub-agency business along with goodwill. It was noted that the appellant received a sum of US$ 650,000 as consideration for this transfer. The court found that the payment was in connection with the termination of the agency agreement and thus fell under Section 28(ii)(c), making it taxable as 'profits and gains of business'. 2. Consideration Received for Transfer of Agency Business or Goodwill: The second issue was whether the consideration received was solely for the transfer of the agency business and not for 'goodwill', especially given that there was no subsisting agency agreement at the time of receipt. The court noted that the appellant had ceased to be an agent of Sea Land (I) Ltd. after the termination of the Sub-Agency Agreement dated 8.11.1992. The court emphasized that the agreement dated 1.6.2000 explicitly mentioned the transfer of the shipping sub-agency business along with goodwill. The court concluded that Section 28(ii)(c) applies as it pertains to any payment received in connection with the termination of an agency, thereby including the consideration received by the appellant. Conclusion: The court held that the consideration received by the appellant was taxable as 'profits and gains of business' under Section 28(ii)(c) and not under 'capital gains' as per Section 45. The Commissioner of Income Tax's decision to revise the assessment order under Section 263 was justified, as the original assessment order was erroneous and prejudicial to the interest of the revenue. The appeal was dismissed, and the questions of law were answered against the assessee and in favor of the revenue.
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