2016 (2) TMI 413 - HC - Income Tax

Non-compete fees - whether classifiable under Section 17 of the Act as profits in lieu of salary? - AO observed that payment for noncompete fees with Grasim is only a camouflage - Held that - In the present facts, the Assessing Officer in his order has after negativing the Appellant s claim is a non-compete fee held that the same is classifiable as profit in lieu of salary under Section 17 of the Act. This determination by the Assessing Officer was not a subject matter of challenge by the Appellant before any of the appellate authorities. Thus, it is not an issue which even arises from the impugned order of the Tribunal. - Decided in favour of the Revenue and against the Appellant.

Summary

Issues Involved:

1. Whether the amount received by the Appellant was in the nature of non-compete fees.
2. Classification of the amount received if not considered as non-compete fees.
3. Legitimacy of the agreement dated 31st March 2002.

Issue-Wise Detailed Analysis:

1. Nature of the Amount Received:

The primary issue was whether the amount of Rs. 3,80,48,100 received by the Appellant from Grasim Limited was non-compete fees. The Tribunal and lower authorities concluded that the amount was not non-compete fees based on several factors:

- The payment was made before the retirement and the execution of the non-compete agreement dated 31st March 2002.
- The Appellant, at the age of 81, was considered unlikely to compete with Grasim.
- The amount received was an odd figure, and the Appellant failed to provide a detailed breakup or the manner of its determination.
- The Appellant continued to work as an advisor for Grasim after retirement.
- Grasim deducted TDS on the payment, which the Appellant accepted without protest.
- A letter dated 29th October 2001 indicated the payment was an advance against non-compete fees, ex-gratia, and other fees, not solely non-compete fees.

2. Classification of the Amount:

The Appellant argued that if the amount was not considered non-compete fees, the authorities must classify it under a specific head. The Assessing Officer classified the amount as "profits in lieu of salary" under Section 17(3)(ii) of the Income Tax Act, 1961. This classification was upheld by the CIT(A) and the Tribunal, who found the agreement dated 31st March 2002 to be a subterfuge to avoid tax.

3. Legitimacy of the Agreement:

The authorities questioned the legitimacy of the agreement dated 31st March 2002, considering it a camouflage. The Tribunal noted the following:

- The agreement was executed after the payments were made.
- The Appellant continued to receive substantial post-retirement benefits, making it unlikely for him to compete with Grasim.
- The Appellant failed to explain the odd figure of the payment and its negotiation process.

Conclusion:

The High Court upheld the Tribunal's decision, concluding that the amount received was not non-compete fees and was rightly classified as "profits in lieu of salary." The court found no reason to interfere with the findings of the Tribunal, as the view taken was reasonable and based on the evidence presented. The appeal was disposed of with no order as to costs.