FACTS:
During 1997-98, the assessee, a part of Gufic Group, received 50,00,000/- from Ranbaxy as non-competition fee. The said amount was paid by Ranbaxy under an agreement. Assessee agreed to transfer its trademarks to Ranbaxy and in consideration of such transfer assessee agreed that it shall not carry on directly or indirectly the business hitherto carried on by it. Assessee was carrying on business of manufacturing, selling and distribution of pharmaceutical and medicinal preparations including products mentioned in the list in Schedule-A to the agreement. The agreement defined a period of 20 years commencing from the date of the agreement. The agreement further showed that the payment made to the assessee was in consideration of the restrictive covenant undertaken by the assessee for a loss of source of income.
On perusal of the said agreement, the CIT (A) while overruling the decision of AO observed that the AO had not disputed the fact that 50 lakhs received by the assessee from Ranbaxy was towards non-competition fee and consequently the CIT(A) held that the said sum received by the assessee from Ranbaxy was a capital receipt not taxable under the Income Tax Act, 1961 during the relevant assessment year. This decision was affirmed by the Tribunal. However, the High Court reversed the decision of the Tribunal by placing reliance on the judgment of the Supreme Court in the case of Gillanders Arbuthnot and Co. Ltd. v. CIT, Calcutta 53 ITR 283. Against the said decision of the High Court assessee has come to the Apex Court.
ISSUE FOR CONSIDERATION:
Whether a payment under an agreement not to compete (negative covenant agreement) is a capital receipt or a revenue receipt?
HELD:
The Court observed that there is a dichotomy between receipt of compensation by an assessee for the loss of agency and receipt of compensation attributable to the negative/restrictive covenant. The compensation received for the loss of agency is a revenue receipt whereas the compensation attributable to a negative/restrictive covenant is a capital receipt. It was further stated by the Court that the payment received as non-competition fee under a negative covenant was always treated as a capital receipt till the assessment year 2003-04. It is only vide Finance Act, 2002 with effect from 1.4.2003 that the said capital receipt is now made taxable.
Thus, the impugned judgment of the Karnataka High Court was set aside and the order of the Tribunal was restored.