2019 (4) TMI 1236 - HC - Income Tax

Payment of non-compete fees - allowable revenue expenditure u/s 37 or capital expenditure - whether payment was made by the assessee not only for acquiring an enduring benefit by stopping the erstwhile promoters in competing with the assessee in similar line of business but also to consolidate its business and therefore the same expenditure is a capital expenditure? - HELD THAT - Tribunal considered the expenditure in question as revenue expenditure and granted the entire benefit for the year under consideration itself. In the case of M/s. Everest Advertising Pvt. Ltd. 2015 (1) TMI 968 - BOMBAY HIGH COURT , the Division Bench of this Court had granted similar benefit in the case where the non-compete agreement was for a period of three years. The Madras High Court in the case of Asianet Communications Ltd. V. Commissioner of Income Tax, Chennai 2018 (8) TMI 1554 - MADRAS HIGH COURT also treated the expenditure as revenue in nature in a case where the non-compete agreement was for a period of five years holding that the same did not result into any enduring benefit to the assessee. Looking to the nature of non-compete agreement, as also the duration thereof, the Courts have recognised such expenditure as Revenue expenditure. In the present case, the assessee had executed subject agreement with the promoter of the Company to avoid immediate competition. The business of the assessee company continue. No new business was acquired. The benefit therefore was held by the Tribunal instantaneous. Tribunal was justified in treating the said payment of non-compete fees as revenue expenditure - Decided against revenue

Summary

Issues:
1. Treatment of non-compete fees as revenue expenditure or capital expenditure.

Analysis:
The High Court judgment dealt with the issue of whether the payment of non-compete fees by the assessee should be treated as revenue expenditure or capital expenditure. The appellant, the Revenue, challenged the order of the Income Tax Appellate Tribunal, questioning the treatment of the payment as revenue expenditure. The Tribunal had allowed the entire expenditure for the year in question, considering it as revenue expenditure. The primary argument put forth by the Revenue was that the payment for the non-compete agreement conferred an enduring benefit on the assessee, making it a capital expenditure. On the other hand, the assessee contended that the immediate benefit derived from avoiding competition did not result in an enduring benefit. The Tribunal's decision was influenced by previous court rulings, including one involving M/s. Everest Advertising Pvt. Ltd., where a similar benefit was granted for a three-year non-compete agreement.

The Court examined the nature and duration of the non-compete agreement to determine the treatment of the expenditure. Referring to the decision in M/s. Everest Advertising Pvt. Ltd., the Court emphasized that the immediate impact on the business and the need to protect business interests justified the payment as revenue expenditure. Additionally, the Court cited cases from the Madras High Court, such as Asianet Communications Ltd. and Carborandum Universal Ltd., which also treated similar expenditures as revenue in nature due to the lack of enduring benefit to the assessee. The Court noted that the non-compete agreement in this case was executed to avoid immediate competition, with the business of the assessee continuing without acquiring any new business. Consequently, the benefit was deemed instantaneous, leading to the dismissal of the Income Tax Appeal as no question of law was found to arise.

In conclusion, the judgment clarified the distinction between revenue and capital expenditure regarding non-compete fees, emphasizing the immediate impact and lack of enduring benefit as key factors in determining the treatment of such expenditures. The decision relied on previous court rulings and the specific circumstances of the case to uphold the classification of the payment as revenue expenditure, ultimately dismissing the appeal.