2024 (7) TMI 961 - AT - Income Tax

Nature of expenses - non-compete fees - revenue or capital expenditure - HELD THAT - Non-complete consideration u/s 28(VA) of the Act is considered as income and, therefore, the assessee has rightly claimed the same as expenditure as the source of the profit or income of profit-making apparatus remains untouched and unaltered. The decision of Hon ble Gujarat High Court in the case of Smartchem Technologies Limited 2016 (8) TMI 559 - GUJARAT HIGH COURT categorically mentions that the expenditure incurred for the purpose which is set out primarily and essentially related to the operation or work of the firm (LLP partnership firm) constituted the profit earning apparatus of the assessee is in the nature of revenue expenditure. Thus, in the present case, the assessee paid the non-compete fees to Shri Paras C. Pandit and, therefore, it is in nature of revenue expenditure. Hence, the disallowance of non-compete fees expenditure by the AO and the CIT(A) is not justified. Thus, appeal of the assessee is allowed.

Summary

Issues:
1. Disallowance of non-compete fees as capital expenditure.
2. Interpretation of non-compete agreement terms.
3. Applicability of legal precedents to the case.
4. Commercial expediency and enduring benefit of non-compete fees.
5. Justification of non-compete fees as revenue expenditure.

Analysis:
1. The appeal was against the CIT(A)'s order disallowing non-compete fees of Rs. 38,00,000 as capital expenditure. The Assessing Officer held the payment to the retiring partner as non-allowable, adding it to the assessee's income under Section 37 of the Income Tax Act, 1961.
2. The terms of the non-compete clause restricted the retiring partner from starting a real estate project in a specific area for two years. The assessee argued that the payment was for competitive advantage and not for enduring benefit, contrary to the CIT(A)'s view.
3. The assessee contended that legal judgments like Income Tax Officer vs. Smartchem Technologies Ltd. and others supported the non-compete fees as revenue expenditure, while the CIT(A) relied on PCIT vs. Ferromatic Milacron India, which the assessee argued was factually distinguishable.
4. The debate centered on whether the non-compete fees provided enduring benefit or commercial advantage to the assessee, with the Revenue arguing for capital nature due to loss of profit, while the assessee emphasized the competitive advantage gained and the absence of revenue loss to the Department.
5. Ultimately, the Tribunal allowed the appeal, noting that the non-compete fees were for a limited period and did not alter the profit-making apparatus of the assessee. Citing legal precedents, the Tribunal concluded that the payment was a revenue expenditure, justifying the assessee's claim and overturning the disallowance.

This detailed analysis highlights the key arguments, interpretations, and legal considerations leading to the Tribunal's decision in favor of the assessee regarding the treatment of non-compete fees as revenue expenditure.