2018 (2) TMI 1985 - AT - Income Tax

Gain on sale of shares - price received by the assessee over and above the market value - allowable business income u/s 28(va) - price received by the assessee over and above the price quoted in the Stock Exchange is for non-compete fee - HELD THAT - The assessee got the shares valued by an independent valuer. The agreement for purchase of shares with M/s Tube Investment of India clearly says that no non-compete fee would be paid by the purchaser. Moreover, when the assessee is selling a large amount of 2,82,50,291 equity shares to M/s Tube Investment of India, the purchaser gets control over the company. Moreover, ₹81/- per share was not only paid to the assessee but also to third party general public. Therefore, it cannot be said that ₹10/- per share was excessively received by the assessee over and above the market rate quoted in the Stock Exchange as non-compete fee. When the price fixed by the Stock Exchange for a single share was ₹71/- and the assessee was selling 2,82,50,291 equity shares whereby the controlling interest in the company stands transferred, this Tribunal is of the considered opinion that there cannot be any presumption that the price received by the assessee over and above the price quoted in the Stock Exchange is for non-compete fee. Therefore, the CIT(Appeals) has rightly deleted the addition made by the Assessing Officer - Decided against revenue.

Summary

Issues:
Appeal against order of Commissioner of Income Tax (Appeals) regarding deletion of addition made under Section 28(va) of the Income-tax Act, 1961 for assessment year 2013-14.

Analysis:
1. Delay in Filing Appeal: The Revenue appealed against the order of the Commissioner of Income Tax (Appeals) with a delay of 14 days. The Tribunal condoned the delay after finding sufficient cause for the delay and admitted the appeal.

2. Deletion of Addition under Section 28(va): The main issue was the deletion of the addition made by the Assessing Officer under Section 28(va) of the Act. The Revenue contended that the excess amount received by the assessee over the market value of shares was treated as business income due to non-compete clause in the share purchase agreement. The Revenue argued that the amount received was rightly added as business income.

3. Assessee's Defense: The assessee argued that the shares were held as investments and were sold at a fair market value of ?81 per share to M/s Tube Investments of India. The assessee claimed that the purchaser paid ?81 per share to all shareholders, including third parties. The assessee disputed the characterization of the excess amount as a non-compete fee.

4. Market Rate Discrepancy: The Tribunal noted that the market rate quoted on the Stock Exchange was ?71 per share, while the assessee sold at ?81 per share. The Tribunal considered various factors influencing market rates and the exemption of shares sold through the Stock Exchange from taxation. The Tribunal found that the excess amount received was not a non-compete fee but a legitimate price for the shares.

5. Control Transfer: The Tribunal observed that the purchaser taking control over the company justified the price received by the assessee. The Tribunal emphasized that the price of ?81 per share was paid to all shareholders, including the general public, and not just the assessee. Therefore, the Tribunal upheld the decision of the Commissioner of Income Tax (Appeals) to delete the addition made by the Assessing Officer.

6. Conclusion: The Tribunal dismissed the appeal filed by the Revenue, confirming the decision of the lower authority. The Tribunal held that the excess amount received by the assessee was not a non-compete fee but a fair price for the shares sold, considering the control transfer and the price paid to all shareholders.

This detailed analysis of the judgment highlights the key arguments presented by both parties and the Tribunal's reasoning in reaching the decision to dismiss the appeal.