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ORDER
PER N.K. PRADHAN, AM
The captioned appeals filed by the assessee are directed against the order of the Commissioner of Income Tax (Appeals)-33, Mumbai [in short ‘CIT(A)’] and arise out of the assessment completed u/s 143(3) of the Income Tax Act 1961 (the ‘Act’). As common issues are involved, we are proceeding to dispose them off through a consolidated order for the sake of convenience. Assessment Year: 2012-13 2. The revised grounds of appeal
filed by the assessee/appellant on 31.01.2018 read as under:
1. The assessment order passed by the AO is erroneous; bad in law and contrary to the provisions of the Income tax Act and therefore, the same ought to be quashed.
2. The Ld. CIT(A) erred in confirming the action of the Assessing officer (AO) in bifurcating the income realized on sale of equity shares of Camlin Ltd. into business income and Capital gains.
3. The Ld. CIT(A) erred in confirming the action of the AO in assessing the difference between the sale price of INR 110 and market price of INR 45.65 under the head "business income" as it is in the nature of non-compete fees. Without prejudice to the above, the Ld. CIT(A) erred in not directing the AO to tax the difference between the sale price of INR 110 per equity shares and market price of INR 85 per equity share (and not INR 45.65 per equity share) as business income as per the show cause notice issued by the AO during the course of assessment proceedings.
Deepak Madhav Dandekar 3 5040/Mum/2016
In a nutshell, the facts are that the appellant filed his return of income for the assessment year (AY) 2012-13 on 25.07.2012 declaring total income of Rs.6,20,11,059/-. The income mainly consisted of Long Term Capital Gains (LTCG), Short Term Capital Gains (STCG) and income from other sources. During the previous year 2011-12, the appellant had sold 5,65,000 equity shares of Camlin Ltd. at Rs.110 per equity share on 13.10.2011 to Kokuyo S & T Co. Ltd., Japan (Kokuyo) (buyer) in terms of Joint Venture Agreement (JVA) dated 30.05.2011. The capital gains realized on sale of above shares of Camlin Ltd. was offered to tax as LTCG by the appellant. During the course of assessment proceedings, the Assessing Officer (AO) asked the assessee to file details on capital gains along with the relevant agreements/documents. The assessee filed those details before the AO. Based on the above documents, the AO issued a letter dated 27.01.2015 to the appellant asking him to show cause as to why the difference between the sale price of Rs.110 per equity share and market price of Rs.85 per equity shares in respect of sale of shares of Camlin Ltd. to Kokuyo should not be regarded as non-compete fees resulting into business income in the hands of the appellant based on the decision of the ITAT, Chandigarh Bench in the case of Sumeet Taneja v. ACIT (ITA No. 1101/Chd/2009). In response to it, the appellant filed his reply vide letter dated 12.02.2015 submitting that the selling price of shares of Camlin Ltd. at Rs.110 per share was the negotiated price and was the same for promoters as well as public in general. Further, as per letter of offer, there is no non-compete fee paid by Kokuyo. Also the Deepak Madhav Dandekar 4 5040/Mum/2016 preferential allotment of shares to Kokuyo at Rs.85 was done as per the ‘Preferential Issue Guidelines’ given under Securities Exchange Board of India (SEBI) (Issue of Capital and Disclosure Requirements) Regulations, 2009, which does not lead to any conclusion that the negotiated price is made of value of shares and non-compete fees. Thus it is stated that the question of difference between negotiated price of Rs.110 and market price of Rs.85 per shares should be taxed under the head ‘business income’ does not arise. However, the AO was not convinced with the above explanation of the assessee and therefore, bifurcated the LTCG of Rs.6,14,65,862/- realized on sale of 5,65,000/- equity shares of Camlin Ltd. at a consideration of Rs.110 per share into LTCG of Rs.2,51,61,135/- and business income of Rs.3,63,04,727/-. The AO, thus determined the LTCG realized on sale of equity shares of Camlin Ltd. by considering the market price of Rs.45.65 per share as sale consideration instead of Rs.110 per share and the difference between the sale price of Rs.110 and market price of Rs.45.65 was assessed to tax as business income as per section 28(va) of the Act.
Aggrieved by the order of the AO, the assessee filed an appeal before the Ld. CIT(A). The Ld. CIT(A) held that (i) the appellant, whose name occurs in the schedule to the JVA was bound by the non-compete and non-solicitation clauses, (ii) there is no merit in the claim of the appellant that non-compete and non-solicitation is only incidental to the JVA, as there can be no reason for higher valuation of the shares @ Rs.110 per share mutually decided by the two parties when the market Deepak Madhav Dandekar 5 5040/Mum/2016 price of the shares on the date of transfer was Rs.45.65 per share only, (iii) since Kokuyo did not separately pay non-compete fee, it got included in the higher purchase price per share fixed mutually. The Ld. CIT(A) relied on the judgment of the Hon’ble Bombay High Court in Arun Toshniwal v. CIT (2015) 59 taxmann.com 274 (Bom) and observed that the facts are identical. Therefore, the Ld. CIT(A) confirmed the order of the AO in bifurcating the capital gains of Rs.6,14,65,562/- realized on sale of 5,65,000 equity shares of Kokuyo Camlin Ltd. at a consideration of Rs.110 per share into LTCG of Rs.2,51,61,135/- and business income of Rs.3,63,04,727/-.
Before us, the Ld. counsel of the assessee files a Paper Book (P/B) containing (i) computation of total income for AY 2012-13, (ii) further submission before CIT(A)-33 filed on 17 June 2016, (iii) letter dated 29 October 2014 filed with AO giving detailed explanation for the income from capital gains, (iv) show cause notice vide letter dated 27 January 2014 issued by AO, (v) reply vide letter dated 12 February 2015 filed with AO in response to the show cause notice, (vi) letter dated 17 February 2015 filed with AO, (vii) Joint Venture Agreement (JVA) dated 30 May 2011, (viii) share subscription agreement, (ix) letter of offer and (x) approval given by Reserve Bank of India. Also another P/B was filed containing the decision in (i) ACIT v. Shri Sanjay Umesh Vyas (ITA No. 3963/Mum/2011), (ii) Hulas Rahul Gupta v. CIT (2012) 24 taxmann.com 191 (Delhi), (iii) Hami Balsara v.
Deepak Madhav Dandekar 6 5040/Mum/2016 ACIT [2010] 126 ITD 100 (Mum), (iv) ACIT v. Savita Mandhana (ITA No. 3900/M/2010) (ITAT-Mum), (v) CIT v. Govindlal C. Mandhana HUF (ITA No. 1221-1222 of 2012) (HC-Bom) and (vi) Priya Desh Gupta v. DCIT (2016) 70 taxmann.com 258 (Delhi). 5.1 The Ld. counsel makes a specific reference to the JVA dated 30.05.2011. Reliance is placed by him on the order of the ITAT ‘A’ Bench, Mumbai in the case of Smt. Aditi Dhanraj Dighe v. ACIT (ITA No. 5039/Mum/2016) for the AY 2012-13.
On the other hand, the Ld. DR relies on the order of the Ld. CIT(A) and makes a specific reference to para 17 and 18 of the appellate order dated 30.06.2016. At para 17 the Ld. CIT(A) has relied upon the decision in Arun Toshniwal (supra).
We have heard the rival submissions and perused the relevant materials on record. The reasons for our decisions are given below. We begin with the decision in Arun Toshniwal (supra) relied on by the Ld. CIT(A) as well as the Ld. DR. In that case, the assessee was Director of one ‘C’ Ltd. (‘Chemito’). ‘C’ sold one of its divisions to a company ‘T’ Ltd. The said ‘T’ entered into agreements of non-compete and non-solicitation under which the assessee agreed and undertook not to engage in any business directly or indirectly or otherwise be involved in activity which was similar to that of the division sold to ‘T’. The AO passed an order u/s 143(3) holding that the sum received by the Deepak Madhav Dandekar 7 ITA Nos. 5041, 5040/Mum/2016 assessee under non-compete fee was revenue receipt liable to tax. The CIT(A) held that non-compete fee was taxable as income under the provisions of section 28 (va). Being aggrieved by the order of the CIT(A), the assessee filed appeal before the Tribunal. The Tribunal dismissed the appeal holding that it is not necessary to carry on the business in order to attract the provisions of section 28(va) of the Act. On appeal, the Hon’ble High Court held that where pursuant to sale of one division of its business by ‘C’ Ltd. to one ‘T’, the assessee, a Director of ‘C’ Ltd. received certain amount by entering into a non-compete agreement, whereby he could not engage in any business activity similar to that of the division sold to ‘T’, amount so received was taxable as business income u/s 28(va). The Hon’ble High Court concluded at para 11 the following: “In the present case, it is evident that had the assessee not entered into an agreement of non-compete, he would have earned the amount from the business carried on out of the division which was sold to Thermo Electron LLS India Pvt. Ltd. It is the sale of the said division that has deprived him of the income and part of the sale consideration itself, he was required to execute an agreement of non-compete and the compensation received under the said agreement was relatable on a consideration for sale of the business of the division and, therefore, for these reason also, we are of the view that the amount is taxable u/s 28(va). Furthermore, in the present case, both the assessee have received the amount pursuant to the agreement dated 2nd June 2008 that is well after 1st April, 2003 and would be covered by the provisions of Section 28(va) of the Act.”
Deepak Madhav Dandekar 8 5040/Mum/2016 7.1 In Arun Toshniwal (supra), the assessee was Director of one ‘C’ Ltd. (‘Chemito’). ‘C’ sold one of its divisions to a company ‘T’ Ltd. The said ‘T’ entered into agreements of non-compete and non-solicitation under which the assessee agreed and undertook not to engage in any business directly or indirectly or otherwise be involved in activity which was similar to that of the division sold to ‘T’. In the instant case, the selling price of shares of Camlin Ltd. at Rs.110 per share was the negotiated price and was the same for promoters as well as public in general. Further, as per letter of offer, there is no non-compete fee paid by Kokuyo. Also the preferential allotment of shares to Kokuyo at Rs.85 was done as per the ‘Preferential Issue Guidelines’ given under Securities Exchange Board of India (SEBI) (Issue of Capital and Disclosure Requirements) Regulations, 2009, which does not lead to any conclusion that the negotiated price is made of value of shares and non-compete fees. In view of the above facts, the case of the appellant is distinguishable from the decision in Arun Toshniwal (supra) relied on by the Ld. CIT(A) as well as Ld. DR. 7.2 A similar issue arose in the case of Smt. Aditi Dhanraj Dighe (supra). In that case the assessee had sold 5,00,000 equity shares of Camlin Ltd. at a consideration of Rs.110 per share during the FY 2011- 12 relevant to the AY 2012-13. The market price of the said equity share was Rs.45.65 per share. The shares were sold in terms of JVA between M/s Kokuyo S & T Ltd., Japan and the assessee along with other Deepak Madhav Dandekar 9 ITA Nos. 5041, 5040/Mum/2016 promoters. As per the letter of offer no compete fee was to be paid to Kokuyo. The preferential allotment of shares to Kokuyo at Rs.85 was done as per the preferential issue guidelines given under SEBI (Issue of Capital and Disclosure Requirement) Regulations 2009. The AO treated the difference between the selling price and market price of the share i.e. Rs.64.35 per share under the head ‘income from business’ treating the same as non-compete fee paid by the said company. In appeal, the Ld. CIT(A) upheld the above action of the AO. In further appeal, the Tribunal held as under: “11. The Ld. counsel vehemently contended that the said offer was not restricted to the promoters but was for the public at large holding the shares of the said company. However, we notice that neither the AO nor the CIT (A) has given any finding on the issue as whether the offer was for the general public or was restricted to the 32 promoters mentioned in the letter of offer or if it was for the general public whether the shareholders other than the aforesaid promoters had also sold their shares at the rate of INR 110? Therefore, in our considered opinion it is essential to ascertain the said facts to arrive at the right conclusion. If the shares were also sold by the shareholders apart from the promoters, then the question of treating the difference between the market price and selling price as business income of the assessee being non-compete does not at all arise. In our considered view the facts of the cases relied upon by the assessee are not identical to the facts of the present case.
Under these circumstances, we are of the considered opinion that the aforesaid facts are required to be verified by the AO. We, accordingly, set aside the impugned order and restore the issue to the file of AO to verify the facts regarding sale of equity share of the company by the shareholders other Deepak Madhav Dandekar 10 5040/Mum/2016 than the 32 promoters as discussed in the preceding para and decide the issue afresh after affording a reasonable opportunity of being heard to the assessee. The AO is further directed to decide the ground of appeal raised without prejudice to tax the difference between the sale price of INR 110 per equity share and market price of INR 85 per equity share as business income, in case it is found that only the 32 promoters including the present assessee had sold their shares to Camlin Ltd. in terms of JVA and letter of offer issue by the company. In the result, appeal filed by the assessee for the assessment year 2012-2013 is allowed for the statistical purposes.” 7.3 In the statement of fact filed before the Ld. CIT(A) on 10.04.2015, the appellant had stated that the selling price of shares of Camlin Ltd. at Rs.110 per share was the negotiated price and was the same for the promoters as well as public in general. Facts being identical, we follow the order of the Co-ordinate Bench in Smt. Aditi Dhanraj Dighe (supra). Accordingly, we set aside the order of the Ld. CIT(A) and restore the matter to the file of the AO to make a de novo order, keeping in mind the above decision delineated at para 7.2 hereinbefore. We direct the appellant to file the relevant documents/evidence before the AO. Needless to say, the AO would give reasonable opportunity of being heard to the appellant before finalizing the order. As the matter has been restored to the file of the AO, we are not adverting to the other decisions relied on by the Ld. counsel.