2018 (9) TMI 475 - HC - Income Tax

Nature of non compete fee received by the assessee - capital receipt or a revenue receipt - taxable as salary or not - distinction between the non compete fee and the good will - CIT(A) has allowed relief to the assessee - Validity of ITAT order in remanding back the matter to CIT(A) - Held that - From the details furnished therein, it is clear that the assessee was never an employee in the new company and therefore, the assessee had a scope to compete. Further, there was no employer employee relationship between the payer company and the assessee and therefore, the payment could not be assessed under the head salary . Further, the CIT (A) held that the legal representative of the deceased assessee had not raised any new point at first appellate stage for deciding the issues. Thus, in our considered view, there was no sufficient material before the Tribunal to remand the case for a fresh consideration at the first instance. The Tribunal does not dispute the covenants contained in the said agreement nor can it dispute the same in the absence of any evidence produced by the Department. In the said agreement, the non compete fee clause is clear by the assessee agreeing not to enter into any trade or start a similar production or enter into any competition with another party and the payment of non compete fee is for an action by the payee on a future date. The said payment of non compete fee is bound by a contractual requirement and it is a contractual right conferred on the assessee and in the event any violation, it was well open to the assessee to enforce the terms of the contract. The order of remand passed by the Tribunal is wholly unjustified and the facts as brought out by the CIT (A) after the first remand vide order dated 28.10.2016 are just and proper and in the absence of any new material produced by the assessee, the question of remanding the matter does not arise. Decided in favour of assessee

Summary

Issues:
1. Remanding the matter back to the Commissioner of Income Tax (Appeals) by the Income Tax Appellate Tribunal.
2. Treatment of non-compete fee as capital receipt or revenue receipt.
3. Comparison of the case with other directors regarding non-compete fee.
4. Justification of remand order by the Tribunal without new material.

Issue 1: Remanding the matter back to the Commissioner of Income Tax (Appeals) by the Income Tax Appellate Tribunal:
The appeal concerns the remand of the case by the Income Tax Appellate Tribunal to the Commissioner of Income Tax (Appeals) for the second time. The Tribunal's decision to remand the matter without new material being presented was questioned. The High Court emphasized that remand should be used sparingly and only when necessary, with due consideration of all materials already available. The Tribunal's decision to remand without fresh evidence was found to be unjustified.

Issue 2: Treatment of non-compete fee as capital receipt or revenue receipt:
The case involved determining whether a non-compete fee of ?6 Crores received by the assessee should be treated as a capital receipt or a revenue receipt. The Commissioner of Income Tax (Appeals) had deleted the addition of ?6 Crores, considering it a capital receipt. The High Court upheld this decision, highlighting that the assessee was not an employee of the new company, and the payment could not be considered profit in lieu of salary.

Issue 3: Comparison of the case with other directors regarding non-compete fee:
The comparison of the assessee's case with other directors regarding the non-compete fee was crucial. The High Court noted that the differences in the facts of the case were analyzed by the Commissioner of Income Tax (Appeals) as per the Tribunal's directions. It was established that the assessee's situation differed significantly from the other directors, justifying the treatment of the non-compete fee as a capital receipt.

Issue 4: Justification of remand order by the Tribunal without new material:
The High Court scrutinized the Tribunal's decision to remand the case without any new material being presented by the assessee. It was observed that the Tribunal should have made a decision based on existing facts and agreements. The Tribunal's reasoning for remand was deemed unconvincing, with some aspects appearing to be personal opinions rather than supported by evidence. The High Court emphasized that the Tribunal should have evaluated the case based on the agreement between the parties and the nature of the non-compete fee.

In conclusion, the High Court allowed the tax case appeal, setting aside the Tribunal's order and restoring the Commissioner of Income Tax (Appeals) decision in favor of the assessee. The questions of law were answered in favor of the assessee, emphasizing the importance of considering existing evidence in such tax matters.