Commissioner Of Income Tax-Xvi vs Shri Atul Kumar Swami
2014 Latest Caselaw 1422 Del

$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 18th March, 2014

+      ITA 112/2014

       COMMISSIONER OF INCOME TAX-XVI       ..... Appellant
                   Through Ms Suruchi Aggarwal, sr. standing
                   counsel

                         versus

       SHRI ATUL KUMAR SWAMI                     ..... Respondent

Through Mr Salil Aggarwal, Adv.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE R.V.EASWAR

S. RAVINDRA BHAT, J.: (OPEN COURT)

The revenue is in appeal aggrieved by the order dated 20.9.2013 of

the Income Tax Appellate Tribunal (ITAT) whereby the assessee's appeal

was allowed.

2. The assessee had in respect of assessment year 1999-2000 in the

note filed together with the accounts and the returns disclosed that he

received a sum of Rs.88 lakhs as one-time non-compete fee. He

concededly paid advance tax of Rs.27,60,600/- on the same. He states

that this was a one-time capital receipt; the return was processed under

section 143(1). The revenue sought to reopen the assessment recording

reasons for doing so as follows by its notice dated 09.01.2002:

"The income tax return for asstt. year 1999-2000 was filed on 29th July, 1999 claiming a refund ofRs.2674420/-. The assessee was the promoter of overseas Cargo Service Private Limited and had entered into as Asset Transfer Agreement with M/s Bax Global India Pvt. Ltd. for transfer of assets of OCS to BAX. As agreed under the ATA the assessee had entered into a Non Competition Agreement with BAX. Under the terms of NCA, the assessee had undertaken not to engage directly or indirectly, either alone or in association with any person or persons in any activity, which will be in competition with the current business of BAX and for observing the restrictions specified in NCA, a consideration amounting to Rs.8 lacs was payable to the assessee by BAX. "

"The assessee had paid advance tax of Rs.27, 60,000/- on the above mentioned amount of Rs. 88 lacs and is now claiming refund of Rs.30, 74,254/- on the contention that as it is capital receipt, it should not be chargeable to tax. However, the income of the assessee of Rs. 88 lacs received by him should be chargeable to tax as it is not a capital receipt but is to be charged to income tax under the head "Profit & Gains of Business of Profession". In terms of section 28 of the IT Act, 1961, section 28 is reproduced hereunder to bring the assessee in net of this provision. " 'any compensation or other payment due to or received by;

a) any person by whatever name called managing the of an Indian company at or in connection with the termination of his management or the modification of the terms and conditions relating thereto. In the light of the above facts, income ofRs.88 lacs has escaped assessment and the very fact that the assessee has already paid advance refund on it on after thought, substantiates the contention of the revenue that the above mentioned amount is chargeable to income tax. Hence notice u/s 148 issued."

3. The assessee objected to the reopening of the assessment

contending that there was no fresh or tangible material discerned by the

revenue for notice for reassessment. This objection was overruled and

the AO added back the said amount as business income observing that the

nature of the consideration receipt having regard to the terms of the

agreement was such that it was income and not capital receipt. The

assessee preferred an appeal but without success to the Commissioner

(Appeals). The Commissioner (Appeals) had during the pendency of the

appeal called for remand report and after discussing its contents rejected

the appeal.

4. The Income Tax Appellate Tribunal after considering the decision

of the Supreme Court in CIT vs. Kelvinator (India) Ltd. (2010) 320 ITR

561 as well as the later rulings of the Supreme Court and this Court held

that there was no tangible material and that the mere circumstance that

advance tax to the tune of Rs.27.6 lakhs was paid did not amount to

admission by him. The learned counsel for the revenue contends that

having regard to the Explanation 1 of section 147 read with section

143(1), the reopening of the assessment in this case was justified. She

also argued that the agreement entered into by the assessee under which

the amount was paid had not been filed during the assessment stage. This

according to the revenue justified the reassessment proceedings.

5. As to what constitutes valid "reasons to believe" is no longer a

matter of debate. So long as the law declared in Kelvinator (supra)

stands, a valid reopening of assessment has to be based only on tangible

material to justify the conclusion that there is escapement of income. In

the present case the note forming part of the return clearly mentioned and

described the nature of the receipt under a non-compete agreement. The

reasons for the notice under section 147 nowhere mentioned that the

revenue came up with any other fresh material warranting reopening of

assessment. In these circumstances, the Court is of the opinion that mere

conclusion of the proceedings under section 143(1) ipso facto does not

bring invocation of powers for reopening the assessment. We are

satisfied that the Tribunal's reasons are justified and do not call for any

interference.

The appeal is accordingly without merit and is dismissed.

S. RAVINDRA BHAT (JUDGE)

R.V. EASWAR (JUDGE) MARCH 18, 2014 vld