2012 (8) TMI 114 - AT - Income Tax

Long term capital gains - Exemption u/s 54EC - sub broker - assessee was carrying on some broking business with main broker and had about 1800 clients. This business was transferred to main broker - since the cost of goodwill was nil and assessee had purchased the capital bonds, assessee claimed deduction u/s. 54EC - Assessing Officer disallowed assessee s claim on ground that due to changes in SEBI Regulations regarding share trading, assessee could no more act as a sub-broker and, thus, assessee could not continue his business as a result of which there could be no transfer of goodwill - Held that - Assessee could still act as a remisier - assessee still remained entitled to his commission which was to be shared by the main broker with such remisier - Simply because assessee preferred to sell his business along with tangible assets would not mean that the agreement would become that of an agency. It still remained an agreement between a principal to principal - clear case of sale of assets - deduction u/s. 54EC allowed - revenue s appeal is dismissed.

Summary

Issues Involved:
1. Nature of the relationship between the assessee and Sharekhan (principal to principal or agent).
2. Treatment of Rs. 1,11,00,000/- received by the assessee (capital receipt or revenue receipt).
3. Applicability of Section 28(ii)(c) regarding the termination of agency.

Issue-wise Detailed Analysis:

1. Nature of the Relationship:
The primary issue was whether the relationship between the assessee and Sharekhan was on a principal-to-principal basis or that of an agent. The revenue argued that the assessee was merely a sub-broker (agent) of Sharekhan. However, the CIT(A) and the Tribunal concluded that the relationship was on a principal-to-principal basis. The assessee conducted business on behalf of his clients and not as an agent representing Sharekhan to third parties. The sub-broker agreement allowed the assessee to operate independently, soliciting business and sharing brokerage with Sharekhan. The Tribunal noted that the sub-broker could not bind Sharekhan by his actions, a crucial characteristic of an agency relationship. Thus, the relationship was not that of a principal and agent but of two principals.

2. Treatment of Rs. 1,11,00,000/- Received:
The revenue contended that the amount received by the assessee should be treated as revenue receipt, taxable under Section 28(ii)(c) as compensation for termination of agency. The assessee argued that the amount was received for the transfer of goodwill and other tangible and intangible assets, thus qualifying as a capital receipt. The Tribunal upheld the CIT(A)'s decision, stating that the amount was indeed a capital receipt. The assessee sold his business, including tangible assets (furniture, computers) and intangible assets (goodwill, client network, research reports). The Tribunal emphasized that the sale of these assets constituted a transfer of business, not a termination of agency.

3. Applicability of Section 28(ii)(c):
The revenue's application of Section 28(ii)(c) was based on the assumption that the payment was for the termination of an agency agreement. The Tribunal clarified that for Section 28(ii)(c) to apply, the payment must be compensation for the termination of an agency relationship. Since the assessee was not an agent but operated on a principal-to-principal basis, the section was not applicable. The Tribunal noted that the change in SEBI regulations, which affected the operational dynamics of sub-brokers, did not alter the fundamental nature of the relationship. The assessee's decision to sell his business assets, including goodwill, was a strategic choice and not a consequence of agency termination.

Conclusion:
The Tribunal dismissed the revenue's appeal, affirming the CIT(A)'s decision. The relationship between the assessee and Sharekhan was on a principal-to-principal basis, and the amount received for the transfer of business assets was a capital receipt, not subject to taxation under Section 28(ii)(c). The Tribunal's detailed analysis reinforced the distinction between a principal-to-principal relationship and an agency, emphasizing the nature of the business transfer and the inapplicability of Section 28(ii)(c).