2019 (6) TMI 159 - AT - Income Tax

Addition towards non-compete agreement - there was an agreement for payment of ₹ 5,00,000/- per year for the period of 10 years with condition of termination and annual review - subsequently a supplementary non-competition agreement entered payment term was changed - HELD THAT - Admittedly, the non-compete arrangement between the assessee and VSIN was originally for a period of 10 years for which an initial amount of ₹ 50,00,000/- was paid. Thereafter, the Parties mutually decided that the said amount would not be subject to annual review although the non-compete agreement would hold good for the period of 10 years. Under the supplementary agreement dated 14.01.2002, the assessee and Vossloh agreed that the condition for annual option to terminate was removed with the result the amount lying in deposit of ₹ 35,00,000/- at the time became fully due to the assessee. JV itself was re-negotiated w.e.f. 08.08.2003 under which the Non-Competition Agreement along with all other documents were terminated and fresh agreements were put in place. Under the new arrangement, the Parties did not negotiate a separate non-compete fee for the assessee. The reason for entering into a supplementary non-competition agreement on 14.01.2002 as noted by the Ld. CIT(A) was on account of the takeover of Vossloh, Germany by Matsuhita, Japan. That the supplementary non-competition agreement was executed on 14.01.2002 is also borne out by the fact that in the minutes of the meeting of the Board of Directors of VSIN held on 27.02.2002, the said supplementary non-competition agreement was approved. The above facts are not in dispute. The AO has made the addition of ₹ 5,00,000/- towards non-compete agreement because of insertion of sub-clause (va) to section 28 by the Finance Act, 2002 w.e.f. 01.04.2003. As the reason given by the AO is not a plausible one as described above, we dismiss the 1st ground of appeal. Correct head of income -Termination Fee and 'Severance' payment received by the assessee pursuant to the Termination Agreement - 'Capital Gains, Income from Other Sources or Salary receipt - HELD THAT - As the sum as termination fee and as severance fee have been received by the assessee towards termination of Joint Venture, it has rightly treated the same as capital receipt and offered the entire amount as income from LTCG in the relevant assessment year. See KETTLEWELL BULLEN AND COMPANY LIMITED VERSUS COMMISSIONER OF INCOME-TAX, CALCUTTA 1964 (5) TMI 4 - SUPREME COURT Accordingly, the 2nd ground of appeal is dismissed.

Summary

Issues:
1. Addition of non-compete fees
2. Treatment of termination and severance fees

Issue 1: Addition of non-compete fees

The appeal was filed by the Revenue against the order of the Commissioner of Income Tax (Appeals)-7, Mumbai regarding the deletion of an addition of ?5,00,000 towards non-compete fees. The main contention was that the non-compete agreement dated 14.01.2002 was an afterthought to evade tax, as the income for future years was declared as non-taxable in AY 2002-03. The AO added ?5,00,000 as taxable income under 'business and profession'. The CIT(A) deleted this addition, stating that the balance amount of ?35,00,000 ceased to be a deposit and became consideration for AY 2002-03. The Tribunal dismissed the appeal, noting that the reasons given by the AO were not plausible, as the supplementary agreement was executed due to a legitimate reason, i.e., the takeover of Vossloh, Germany.

Issue 2: Treatment of termination and severance fees

The second ground of appeal concerned the treatment of termination and severance fees received by the assessee pursuant to a Termination Agreement dated 31st July, 2006. The AO taxed the termination fee under 'Income from Other Sources' and the severance fee as 'Salary', while the assessee considered them as capital gains. The CIT(A) held that both amounts are taxable as income under 'Capital Gains'. The Tribunal upheld this decision, citing the principle that receipts on termination of agreements are capital or revenue based on their impact on the business structure. As the termination and severance fees were received towards the termination of the Joint Venture, they were rightly treated as capital receipts and offered as income from Long Term Capital Gains in the relevant assessment year.

In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision on both issues related to the non-compete fees and the treatment of termination and severance fees.