2018 (9) TMI 1543 - AT - Income Tax

Disallowing the non-compete fees paid by the assessee to its holding company by holding it to be capital expenditure - Held that - This non-compete fees received by M/s. Kapil Chit Funds Private Limited was admitted as its income. The payments are to be made on yearly basis on the turnover of the appellant. Hence, total income was contended that the amount represents revenue item of expenditure. The view of the appellant was supported by the decision of the Hon ble ITAT in the appellant s own case for the Asst. Year 2012-13 which has been referred to supra. The Hon ble ITAT, Hyderabad while deciding the appellant s own case had stated that the payment made by the appellant to M/s. Kapil Chit Funds Private Limited was revenue expenditure as without the said payment the appellant could not have carried on its business more efficiently and profitably. Hence, the Hon ble ITAT had held that the payment was revenue expenditure and allowable as a deduction u/s 37(1) of the Income Tax Act. Respectfully following the decision of the Hon ble ITAT, Hyderabad in the appellant s own case for the same issue of non-compete fee. - Decided against revenue.

Summary

Issues:
Revenue's appeals for Assessment Years 2011-12, 2013-14, and 2014-15 regarding non-compete fees treated as capital expenditure.

Analysis:
The Revenue contested the CIT(A)'s decision to delete the addition of non-compete fees paid by the assessee to its holding company, arguing it should be considered capital expenditure. The CIT(A) based the decision on the ITAT's ruling in the assessee's case for A.Y. 2012-13, where non-compete fees were deemed revenue expenditure under section 37(1) of the Act. The ITAT considered various legal precedents, including the Assam Bengal Cement case, to determine the nature of the payment. It was concluded that the non-compete agreement was for a limited period and aimed at warding off competition, making it a revenue expenditure. The Tribunal found that the payment facilitated the assessee's business operations efficiently and profitably, justifying its treatment as revenue expenditure.

The Tribunal noted that the agreement between the parties involved a 5-year non-compete clause, extendable by mutual agreement, with payments tied to annual turnover. The Tribunal emphasized that the payment was for the loss of revenue to the holding company and was essential for the assessee's business operations. Referring to the Andhra Fuels case, the Tribunal reaffirmed that the restrictive covenant was temporary and directly related to generating revenue. The Tribunal highlighted the termination clause and additional services provided under the agreement, supporting the view that the payment was revenue expenditure under section 37(1) of the Income Tax Act.

Considering the precedents and the facts of the case, the Tribunal upheld the CIT(A)'s decision based on the ITAT's previous ruling in the assessee's case for A.Y. 2012-13. The Tribunal found no reason to interfere with the CIT(A)'s order, as the issue had already been settled in favor of the assessee. Consequently, the Revenue's appeals were dismissed, and the decision was pronounced in open court on September 11, 2018.