1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 12044 OF 2016

SHIV RAJ GUPTA …Appellant

Versus

COMMISSIONER OF INCOME -TAX,

DELHI-IV …Respondent

J U D G M E N T

R.F. Nariman, J.

1. The present appeal relating to assessment year 1995-96 is by one Shri

Shiv Raj Gupta, who was the Chairman and Managing Director of M/s

Central Distillery and Breweries Ltd. (hereinafter referred to as “CDBL”),

which had a unit in Meerut manufacturing beer and Indian Made Foreign

Liquor (hereinafter referred to as “IMFL”). The facts leading to an

appreciation of the issues raised in this appeal are as follows.

2. By a Memorandum of Understanding (hereinafter referred to as “MoU”)

dated 13.04.1994, made between the appellant and three group

companies of M/s Shaw Wallace Company Group (hereinafter referred

to as “SWC group”), the appellant, his wife, son, daughter-in-law and

two daughters were the registered holders of 1,86,109 equity shares of

2

INR 10 each constituting 57.29% of the paid-up equity share capital of

CDBL listed in the Bombay and Delhi Stock Exchanges. The break-up

of the shares held by the family members of the appellant and the

appellant himself are as follows:

Name of the Shareholder Number of Shares held in CDBL

Shiv Raj Gupta (Appellant) 38,999

Jayant Gupta (Appellant’s Son) 44,658

Roopa Gupta (Appellant’s

Daughter-in-law)

53,911

Pushpa Gupta (Appellant’s

Wife)

3,303

Avanti Pandit (Appellant’s

Daughter)

5,541

Arti Kirloskar (Appellant’s

Daughter)

2,760

Total 1,86,109

3. The said MoU recites that the company employed in its factory 350

employees and around 25 staff and other officers in its other offices.

The MoU then refers to a direction of the Supreme Court, which was

made by an Order dated 11.03.1994, which made it clear that the

company’s manufacturing activity at the plant at Meerut was suspended

3

until a secondary effluent treatment plant is installed and made

operative by the company. This led to the sale of this controlling block

of shares, which was sold at the price of INR 30 per share (when the

listed market price of the share was only INR 3 per share). It is stated

in the said MoU that the entire sale consideration of Rs.55,83,270/- has

since been paid by the SWC group to Shri Gupta, as a result of which

Shri Gupta has irrevocably handed over physical possession,

management and control of the said brewery and distillery of CDBL to

a representative of the SWC group on 10.02.1994. Among the things

to be done under the MoU, it was made clear that the nominees of the

SWC group would be put in the saddle i.e. be made directors on or

before 13.04.1994, so that they will constitute an absolute majority on

the board of the company. Importantly, both Shri Shiv Raj Gupta and

his son Shri Jayant Gupta (who, together with his wife, is the major

shareholder of the family) will resign as Chairman and Managing

Director and as Joint Managing Director respectively of CDBL by

13.04.1994. Under Clause 7 of the said MoU, personal guarantees

given by the appellant and his son to UCO Bank, IFCI, ICICI and IREDA

for loans amounting to INR 8.44 crores will be indemnified against all

claims, actions, etc. in respect thereof.

4. By a Deed of Covenant dated 13.04.1994, the MoU signed on the same

day was reiterated, and it was then stated in recitals 3 and 4 as follows:

4

“(3) Over the past years, Mr. Shivraj Gupta has acquired

considerable knowledge, skill, expertise and

specialization in liquor business.

(4) In furtherance of the purchase of the said shares,

SWC have requested Mr. Shivraj Gupta to give a

restrictive covenant to and in favour of SWC for not

carrying on directly or indirectly any manufacturing or

marketing activities, whatsoever, relating to Indian

Made Foreign Liquor (IMFL) or Beer for a period of 10

years from the date hereof which Mr. Gupta has agreed

to give for the consideration of a non-competition fee of

Rs. 6,60,00,00 (Rupees Six crores and sixty lacs only)

to be paid by SWC to Mr. Gupta.”

The Deed of Covenant is a short document containing two clauses,

which are set out as follows:

“1. In consideration of the sum of Rs. 6,00,00,000

(Rupees Six crores only) paid by SWC to Mr. Gupta as

an advance against the aforesaid non-competition fee

of Rs. 6,60,00,000 (the receipt whereof, Mr. Gupta

hereby admits and acknowledges), Mr. Gupta hereby

irrevocably agrees, covenants and undertakes that with

effect from the date of these presents, Mr. Gupta will

not start or engage himself directly or indirectly or

provide any service, assistance or support of any

nature, whatsoever, to or in relation to the

manufacturing, dealing and supplying or marketing of

Indian Made Foreign Liquor (IMFL) and/or Beer. The

balance amount of Rs. 60,00,000 (Rupees sixty lacs

only) will be paid by SWC to Mr. Gupta on 31

st

October,

1994.

2. This covenant shall remain in full force and effect for

a period of 10 years from the date of these presents and

this covenant will be absolutely and irrevocably binding

on Mr. Gupta.”

5. The bone of contention in this appeal is whether the said Deed of

Covenant can be said to contain a restrictive covenant as a result of

5

which payment is made to the appellant, or whether it is in fact part of a

sham transaction which, in the guise of being a separate Deed of

Covenant, is really in the nature of payment received by the appellant

as compensation for terminating his management of CDBL, in which

case it would be taxable under Section 28(ii)(a) of the Income Tax Act,

1961. Section 28(ii)(a) reads as follows:

“28. Profits and gains of business or profession.

The following income shall be chargeable to income-tax

under the head "Profits and gains of business or

profession", -

xxx xxx xxx

(ii) any compensation or other payment due to or

received by,-

(a) any person, by whatever name called, managing the

whole or substantially the whole of the affairs of an

Indian company, at or in connection with the termination

of his management or the modification of the terms and

conditions relating thereto;”

6. By an order dated 31.03.1998, the Assessing Officer held that despite

the fact that the appellant owned a concern, namely, one M/s Maltings

Ltd., which also manufactured IMFL, being a loss making concern, no

real competition could be envisaged between a giant, namely, the SWC

group and this loss making dwarf, as a result of which the huge amount

paid under the Deed of Covenant cannot be said to be an amount paid

in respect of a restrictive covenant as to non-competition. It was further

held that the son of the appellant was not paid any such non-compete

6

fee or amount despite the fact that he also resigned from his position

as Joint Managing Director. It was also held that this was a lump sum

payment with no reason as to why such a huge amount of INR 6.6

crores was being paid. It was also found that there was no penalty

clause to enforce the performance of obligations under the aforesaid

Deed of Covenant, as a result of which, applying the judgment in

McDowell & Co. Ltd. v. CTO (1985) 3 SCC 230, the Deed of Covenant

was held to be a colourable device to evade tax that is payable under

Section 28(ii)(a) of the Income Tax Act, 1961. As a result thereof, this

amount was then brought to tax under the aforesaid provision.

7. An appeal from the Assessing Officer to the learned Commissioner of

Income Tax (Appeals) was dismissed. When it came before the Income

Tax Appellate Tribunal (hereinafter referred to as “Appellate Tribunal”)

the learned Accountant Member differed with the learned Judicial

Member. The learned Accountant Member held that the two deeds

would have to be read separately and that revenue cannot challenge

the business perception of the assessee. Further, it was held that there

was no colourable device involved, and that, as a result, non-compete

fee payable under the Deed of Covenant was not taxable under Section

28(ii)(a) or any other provision of the Income Tax Act, 1961. The

learned Judicial Member on the other hand substantially agreed with

the Assessing Officer, as a result of which he decided in favour of the

7

revenue. A reference was then made to a third Member, who was also

a Judicial Member. The learned third Member emphasised the fact that

a share worth INR 3 was sold for INR 30 under the MoU as a result of

transfer of control of the CDBL. It cannot be said that these shares have

been undervalued, neither can it be said that there was any collusion

or other sham transaction, as a result of which the amount of INR 6.6

crores has escaped income tax. He pointed out that by a letter dated

02.04.1994, a “penalty clause” was provided for in that, out of the

amount received by the assessee an amount of INR 3 crore was to be

deposited with the SWC group for two years under a public deposit

scheme, it being made clear that in case there is any breach of the

terms of the MoU resulting in loss, the amount of such loss will be

deducted from this deposit. The result, therefore, was that the appeal

stood allowed by a majority of 2:1 in the Appellate Tribunal.

8. The revenue preferred an appeal under Section 260-A of the Income

Tax Act, 1961 to the High Court. In its grounds of appeal, the revenue

framed the substantial questions of law that arose in the matter as

follows:

“A) Whether the ITAT has correctly interpreted the

provisions of Section 28(ii) of the Income Tax Act,

1961?

B) Whether the Ld. ITAT was correct in holding that

receipt of Rs.6.6 crores by the respondent/assessee as

non-competitive fee was a capital receipt u/s 28(iv)

8

income tax act and not a revenue receipt as envisaged

in Section 28(ii) of I.T. Act?

C) Whether the Ld. ITAT failed to distinguish between

nature of capital and nature of benefit in commercial

sense in respect of amount of Rs. 6.6 crores received

in view of restrictive covenant of deed dated

13.04.1994?

D) Whether Ld. Judicial Member of ITAT was correct in

recording his difference of opinion that receipt of Rs.

6.6 crores by respondent/assessee was actually a

colourable exercise to evade tax and same was held to

be taxable under Section 28(ii) of the Income Tax Act?”

9. By the impugned judgment of the Division Bench of the Delhi High Court

dated 22.12.2014, the Division Bench framed the following substantial

question of law:

“Whether, on the facts and in the circumstances of the

case, the amount of Rs. 6.6 crores received by the

assessee from SWC is on account of handing over

management and control of CDBL (which were earlier

under the management and control of the assessee) to

SWC as terminal benefit and is taxable u/s 28(ii) of the

Income-tax Act or same is exempt as capital receipt

being non-competition fee by executing deed of

covenant”

After going through the MoU and the Deed of Covenant, both dated

13.04.1994, and copiously referring to the order of the Assessing Officer

dated 31.03.1998, the High Court agreed with the Assessing Officer and

the first Judicial Member of the Appellate Tribunal, stating that the Deed

of Covenant could not be read as a separate document and was not in

its real avatar a non-compete fee at all. However, in its ultimate

conclusion, disagreeing with the learned Assessing Officer and the

9

minority judgment of the Tribunal, the High Court went on to state that

the said sum of INR 6.6 crores could not be brought to tax under Section

28(ii)(a), but would have to be treated as a taxable capital gain in the

hands of the appellant, being part of the full value of the sale

consideration paid for transfer of shares.

10. Shri Arvind Datar and Shri Ajay Vohra, learned senior advocates

appearing on behalf of the appellant, have taken us through the orders

of the Income Tax Authorities, the Appellate Tribunal and the impugned

judgment of the High Court. They raised as a preliminary submission

the fact that under Section 260-A, it is only the substantial question of

law that is framed that can be answered and no other. If some other

question is to be answered, the Court must first give notice of the same

to both sides, hear them, pronounce a reasoned order and thereafter

frame another substantial question of law, which it may then answer.

This procedure has not been followed in the present case as it is clear

that the substantial question of law framed did not contain within it the

question as to whether the assessee can be taxed outside the

provisions of Section 28(ii)(a). The entire judgment is, therefore, vitiated

and must be set aside on this ground alone. They relied on several

judgments to buttress this contention. They then relied upon the

judgment of the learned Accountant Member and of the third Member in

favour of the assessee and the reasoning therein, which according to

10

them is unexceptionable and should have been followed by the High

Court. They also cited judgments to show that prior to 01.04.2003, i.e.

before the introduction of Section 28(va) by Finance Act 20 of 2002 with

effect from the aforesaid date, any sum received under an agreement

for not carrying out any activity in relation to any business was taxed,

for the first time, under this provision and the provision not being

retrospective would not apply to the facts of the present case.

11. Shri Arijit Prasad, learned senior advocate appearing on behalf of the

revenue, read the order of the Assessing Officer and the order of the

first learned Judicial Member and adopted the reasoning contained

therein. According to him, the High Court judgment correctly applied

both McDowell (supra) and Vodafone International Holdings BV v.

Union of India (2012) 6 SCC 613 to arrive at the result which it arrived

at as it was clear that the amount of INR 6.6 crores that was received

by the assessee was really in the nature of payment for the sale of

shares. He also argued as an alternative that in any event it would fall

under Section 28 (ii)(a) as was correctly held by the learned Assessing

Officer and the minority judgment of the Appellate Tribunal.

12. Having heard learned counsel for both parties, we are of the view that

the appeal needs to succeed first on the preliminary ground raised by

the learned counsel for the appellant. Section 260-A of the Income Tax

Act, 1961 reads as follows:

11

“260-A. Appeal to High Court.

(1) An appeal shall lie to the High Court from every

order passed in appeal by the Appellate Tribunal

before the date of establishment of the National Tax

Tribunal, if the High Court is satisfied that the case

involves a substantial question of law.

(2) The Principal Chief Commissioner or Chief

Commissioner or the Principal Commissioner or

Commissioner or an assessee aggrieved by any order

passed by the Appellate Tribunal may file an appeal to

the High Court and such appeal under this sub-section

shall be—

(a) filed within one hundred and twenty days from the

date on which the order appealed against is received

by the assessee or the Principal Chief Commissioner

or Chief Commissioner or Principal Commissioner or

Commissioner;

(b) [***]

(c) in the form of a memorandum of appeal precisely

stating therein the substantial question of law involved.

(2A) The High Court may admit an appeal after the

expiry of the period of one hundred and twenty days

referred to in clause (a) of sub-section (2), if it is

satisfied that there was sufficient cause for not filing

the same within that period.

(3) Where the High Court is satisfied that a substantial

question of law is involved in any case, it shall

formulate that question.

(4) The appeal shall be heard only on the question so

formulated, and the respondents shall, at the hearing

of the appeal, be allowed to argue that the case does

not involve such question :

Provided that nothing in this sub-section shall be

deemed to take away or abridge the power of the court

to hear, for reasons to be recorded, the appeal on any

other substantial question of law not formulated by it,

if it is satisfied that the case involves such question.

12

(5) The High Court shall decide the question of law so

formulated and deliver such judgment thereon

containing the grounds on which such decision is

founded and may award such cost as it deems fit.

(6) The High Court may determine any issue which—

(a) has not been determined by the Appellate Tribunal;

or

(b) has been wrongly determined by the Appellate

Tribunal, by reason of a decision on such question of

law as is referred to in sub-section (1).

(7) Save as otherwise provided in this Act, the

provisions of the Code of Civil Procedure, 1908 (5 of

1908), relating to appeals to the High Court shall, as

far as may be, apply in the case of appeals under this

section.”

This provision, being modelled on a similar provision that is contained

in Section 100 of the Code of Civil Procedure, makes it clear that the

High Court’s jurisdiction depends upon a substantial question of law

being involved in the appeal before it. First and foremost, it shall

formulate that question and on the question so formulated, the High

Court may then pronounce judgement, either by answering the question

in the affirmative or negative or by stating that the case at hand does

not involve any such question. If the High Court wishes to hear the

appeal on any other substantial question of law not formulated by it, it

may, for reasons to be recorded, formulate and hear such questions if it

is satisfied that the case involves such question – See section 260-A

(4). Under sub-section (6), the High Court may also determine any issue

which, though raised, has not been determined by the Appellate

13

Tribunal or has been wrongly determined by the Appellate Tribunal by

reason of a decision on a substantial question of law raised.

13. In Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC

438, this Court referred to Section 100 of the Code of Civil Procedure

and then stated:

“10. We would only add that (a) it is the duty cast upon

the High Court to formulate the substantial question of

law involved in the case even at the initial stage; and (b)

that in (exceptional) cases, at a later point of time, when

the Court exercises its jurisdiction under the proviso to

sub-section (5) of Section 100 CPC in formulating the

substantial question of law, the opposite party should

be put on notice thereon and should be given a fair or

proper opportunity to meet the point. Proceeding to hear

the appeal without formulating the substantial question

of law involved in the appeal is illegal and is an

abnegation or abdication of the duty cast on court; and

even after the formulation of the substantial question of

law, if a fair or proper opportunity is not afforded to the

opposite side, it will amount to denial of natural justice.

The above parameters within which the High Court has

to exercise its jurisdiction under Section 100 CPC

should always be borne in mind. We are sorry to state

that the above aspects are seldom borne in mind in

many cases and second appeals are entertained and/or

disposed of, without conforming to the above

discipline.”

This statement of the law was followed in Dnyanoba Bhaurao

Shemade v. Maroti Bhaurao Marnor (1999) 2 SCC 471 (See

paragraph 10). A recent decision of this Court in Biswanath Ghosh v.

Gobinda Ghosh (2014) 11 SCC 605 has reiterated these principles in

paragraph 16 as follows:

14

“16. Section 100 of the Code lays down the provision

with regard to the second appeal which reads as under:

“100.Second appeal.—(1) Save as otherwise expressly

provided in the body of this Code or by any other law for

the time being in force, an appeal shall lie to the High

Court from every decree passed in appeal by any court

subordinate to the High Court, if the High Court is

satisfied that the case involves a substantial question of

law.

(2) An appeal may lie under this section from an

appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of

appeal shall precisely state the substantial question of

law involved in the appeal.

(4) Where the High Court is satisfied that a substantial

question of law is involved in any case, it shall formulate

that question.

(5) The appeal shall be heard on the question so

formulated and the respondent shall, at the hearing of

the appeal, be allowed to argue that the case does not

involve such question:

Provided that nothing in this sub-section shall be

deemed to take away or abridge the power of the Court

to hear, for reasons to be recorded, the appeal on any

other substantial question of law, not formulated by it, if

it is satisfied that the case involves such question.”

From a bare reading of the aforesaid provision it is

manifestly clear that an appeal shall lie to the High

Court from an appellate decree only if the High Court is

satisfied that the case involves a substantial question of

law. It further mandates that the memorandum of

appeal precisely states the substantial question of law

involved in the appeal. If such an appeal is filed, the

High Court while admitting or entertaining the appeal

must record its satisfaction and formulate the

substantial question of law involved in the appeal. The

appeal shall then be heard on the questions so

formulated and the respondent shall be allowed to

argue only on those substantial questions of law.

15

However, proviso to this section empowers the court to

hear on any substantial question of law not formulated

after recording reasons”

14. It can be seen that the substantial question of law that was raised by the

High Court did not contain any question as to whether the non-compete

fee could be taxed under any provision other than Section 28(ii)(a) of

the Income Tax Act, 1961. Without giving an opportunity to the parties

followed by reasons for framing any other substantial question of law as

to the taxability of such amount as a capital receipt in the hands of the

assessee, the High Court answered the substantial question of law

raised as follows:

“63. In view of the aforesaid discussion, we deem it

appropriate and proper to treat Rs. 6.60 crores as

consideration paid for sale of shares, rather than a

payment under Section 28(ii)(a) of the Act.

xxx xxx xxx

65. The substantial question of law is accordingly

answered in favour of the appellant-Revenue and

against the respondent-assessee but holding that

Rs.6.60 crores was taxable as capital gains in the

hands of the respondent-assessee being a part of the

full value sale consideration paid for transfer of shares.

The appellant-Revenue will be entitled to costs as per

the Delhi High Court Rules.”

Clearly, without any recorded reasons and without framing any

substantial question of law on whether the said amount could be taxed

under any other provision of the Income Tax Act, the High Court went

ahead and held that the amount of INR 6.6 crores received by the

assessee was received as part of the full value of sale consideration

16

paid for transfer of shares – and not for handing over management and

control of CDBL and is consequently not taxable under Section 28(ii)(a)

of the Income Tax Act. Nor is it exempt as a capital receipt being non-

compete fee, as it is taxable as a capital gain in the hands of the

respondent-assessee as part of the full value of sale consideration paid

for transfer of shares. This finding would clearly be in the teeth of

Section 260-A (4), requiring the judgment to be set aside on this score.

15. Coming to the merits, the High Court found:

“22. …No doubt, market price of each share was only

Rs.3/- per share and the purchase price under the

MOU was Rs.30/-, but the total consideration received

was merely about Rs.56 lacs. What was allegedly paid

as non-compete fee was ten times more, i.e. Rs.6.60

crores. The figure per se does not appear to be a

realistic payment made on account of non-compete

fee, dehors and without reference to sale of shares,

loss of management and control of CDBL. The

assessee had attributed an astronomical sum as

payment toward non-compete fee, unconnected with

the sale of shares and hence not taxable. Noticeably,

the price received for sale of shares, it is accepted was

taxable as capital gain. The contention that quoted

price of each share was mere Rs. 3 only, viz. price as

declared of Rs. 30/- is fallacious and off beam. The

argument of the assessee suffers from a basic and

fundamental flaw which is conspicuous and evident.”

This finding flies in the face of settled law. A catena of judgments has

held that commercial expediency has to be adjudged from the point of

view of the assessee and that the Income Tax Department cannot enter

into the thicket of reasonableness of amounts paid by the assessee.

17

This Court in CIT v. Walchand & Co. (1967) 3 SCR 214 stated as

follows:

“It is open to the Tribunal to come to a conclusion either

that the alleged payment is not real or that it is not

incurred by the assessee in the character of a trader or

that it is not laid out wholly and exclusively for the

purpose of the business of the assessee and to disallow

it. But it is not the function of the Tribunal to determine

the remuneration which in their view should be paid to

in employee of the assessee. When a claim for

allowance under Section 10(2)(xv) of the Income Tax

Act is made, the Income Tax Authorities have to decide

whether the expenditure claimed as an allowance was

incurred voluntarily and on grounds of commercial

expediency. In applying the test of commercial

expediency for determining whether the expenditure

was wholly and exclusively laid out for the purpose of

the business, reasonableness of the expenditure has to

be adjudged from the point of view of the businessman

and not of the Revenue.” [at page 217]

The aforesaid judgment was followed by this Court in J.K. Woollen

Manufacturers v. CIT (1969) 1 SCR 525 where the Court held:

“As pointed out by this Court in CIT v. Walchand & Co.

Private Ltd. [(1967) 65 ITR 381 : (AIR 1967 SC 1435)]

in applying the test of commercial expediency for

determining whether an expenditure was wholly and

exclusively laid out for the purpose of the business,

reasonableness of the expenditure has to be adjudged

from the point of view of the businessman and not of the

Income Tax Department. It is, of course, open to the

Appellate Tribunal to come to a conclusion either that

the alleged payment is not real or that it is not incurred

by the assessee in the character of a trader or it is not

laid out wholly and exclusively for the purpose of the

business of the assessee and to disallow it. But it is not

the function of the Tribunal to determine the

remuneration which in their view should be paid to an

employee of the assessee.” [at page 529-530]

18

This Court in CIT v. Panipat Woollen & General Mills Co. Ltd. (1976)

2 SCC 5 stated as follows:

“6. Before coming to the facts it may be necessary to

mention that there can be no dispute with respect to the

two important propositions:

“(1) that in order to fall within Section 10(2)(xv) of the

Act the deduction claimed must amount to an

expenditure which was laid out or expended wholly and

exclusively for the purpose of the business, profession

or vocation. This will naturally depend upon the facts of

each case,

(2) that in order to determine the question of

reasonableness of the expenditure, the test of

commercial expediency would have to be adjudged

from the point of view of the businessman and not of the

Income tax Department.”

Further, this Court in Shahzada Nand & Sons v. CIT (1977) 3 SCC 432

reiterated this principle as follows:

“4. …But it is well settled that these factors are to be

considered from the point of view of a normal, prudent

businessman. The reasonableness of the payment with

reference to these factors has to be judged not on any

subjective standard of the assessing authority but from

the point of view of commercial expediency… …What

is the requirement of commercial expediency must be

judged not in the light of the 19th Century laissez-

faire doctrine which regarded man as an economic

being concerned only to protect and advance his self-

interest but in the context of current socio-economic

thinking which places the general interest of the

community above the personal interest of the individual

and believes that a business or undertaking is the

product of the combined efforts of the employer and the

employees and where there is sufficiently large profit,

after providing for the salary or remuneration of the

employer and the employees and other prior charges

19

such as interest on capital, depreciation, reserves etc.,

a part of it should in all fairness go to the employees.”

Also, this Court in S.A. Builders Ltd. v. CIT (2007) 1 SCC 781 held as

follows:

“36. We agree with the view taken by the Delhi High

Court in CIT v. Dalmia Cement (B) Ltd. [(2002) 254 ITR

377 (Del)] that once it is established that there was

nexus between the expenditure and the purpose of the

business (which need not necessarily be the business

of the assessee itself), the Revenue cannot justifiably

claim to put itself in the armchair of the businessman or

in the position of the Board of Directors and assume the

role to decide how much is reasonable expenditure

having regard to the circumstances of the case. No

businessman can be compelled to maximise its profit.

The Income Tax Authorities must put themselves in the

shoes of the assessee and see how a prudent

businessman would act. The authorities must not look

at the matter from their own viewpoint but that of a

prudent businessman. As already stated above, we

have to see the transfer of the borrowed funds to a

sister concern from the point of view of commercial

expediency and not from the point of view whether the

amount was advanced for earning profits.”

The same principle has also been cited with approval by a recent

judgment of this Court in Hero Cycles (P) Ltd. v. CIT (2015) 16 SCC

359 where the Court held as follows:

“11. Insofar as loans to the sister concern/subsidiary

company are concerned, the law in this behalf is

recapitulated by this Court in S.A. Builders

Ltd. v. CIT [S.A. Builders Ltd. v. CIT, (2007) 1 SCC

781]. After taking note of and discussing on the scope

of commercial expediency, the Court summed up the

legal position in the following manner: (SCC pp. 787-88,

paras 27-31)

20

xxx xxx xxx

31. It has been repeatedly held by this Court that the

expression ‘for the purpose of business’ is wider in

scope than the expression ‘for the purpose of earning

profits’ vide CIT v. Malayalam Plantation

Ltd. [CIT v. Malayalam Plantation Ltd., (1964) 53 ITR

140 (SC)] , CIT v. Birla Cotton Spg. & Wvg. Mills

Ltd. [CIT v. Birla Cotton Spg. & Wvg. Mills Ltd.,

(1971) 3 SCC 344] , etc.”

12. In the process, the Court also agreed that the view

taken by the Delhi High Court in CIT v. Dalmia Cement

(B.) Ltd. [CIT v. Dalmia Cement (B.) Ltd., 2001 SCC

OnLine Del 1447 : (2002) 254 ITR 377] wherein the

High Court had held that (SCC OnLine Del para 8) once

it is established that there is nexus between the

expenditure and the purpose of business (which need

not necessarily be the business of the assessee itself),

the Revenue cannot justifiably claim to put itself in the

arm-chair of the businessman or in the position of the

Board of Directors and assume the role to decide how

much is reasonable expenditure having regard to the

circumstances of the case. It further held that no

businessman can be compelled to maximise his profit

and that the Income Tax Authorities must put

themselves in the shoes of the assessee and see how

a prudent businessman would act. The authorities must

not look at the matter from their own viewpoint but that

of a prudent businessman.”

16. The High Court’s next finding based on the judgment in Vodafone

(supra) is as follows:

“56. In view of the aforesaid discussion and our

findings on the true and real nature of the transaction

camouflaged as ‘non-compete fee‘, we have no

hesitation and reservation that the respondent-

assessee had indulged in abusive tax avoidance.”

17. We may only reiterate as correctly found by the majority judgments of

the Appellate Tribunal, that:

21

(i) A share of the face value of INR 10 and market value of INR

3 was sold for INR 30 as a result of control premium having to

be paid.

(ii) It is important to note that each member of the family was paid

for his/her shares in the company, the lion’s share being paid

to the assessee’s son and wife as they held the most number

of shares within the said family.

(iii) The non-compete fee of INR 6.6 crores was paid only to the

assessee. This was for the reason stated in the Deed of

Covenant, namely, that Shri Shiv Raj Gupta had acquired

considerable knowledge, skill, expertise and specialisation in

the liquor business. There is no doubt that on facts he has

been Chairman and Managing Director of CDBL for a period

of about 35 years; that he also owned a concern, namely M/s

Maltings Ltd., which manufactured and sold IMFL and beer

and that he was the President of All India Distilleries

Association and H.P. Distilleries Association.

(iv) It is further recorded in the judgment of the Accounting

Member that the amount of INR 6.6 crores was arrived at as

a result of negotiations between the SWC group and the

appellant.

22

(v) That the restrictive covenant for a period of 10 years resulted

in the payment of INR 66 lakhs per year so that the appellant

“…will not start or engage himself, directly or indirectly, or

provide any service, assistance or support of any nature,

whatsoever, to or in relation to the manufacturing, dealing and

supplying or marketing of IMFL and/or Beer.” Given the

personal expertise of the assessee, the perception of the

SWC group was that Shri Gupta could either start a rival

business or engage himself in a rival business, which would

include manufacturing and marketing of IMFL and Beer at

which he was an old hand, having experience of 35 years.

(vi) As was correctly held by the second Judicial Member, it was

also clear that the withholding of INR 3 crores out of INR 6.6

crores for a period of two years by way of a public deposit with

the SWC group for the purpose of deduction of any loss on

account of any breach of the MoU, was akin to a penalty

clause, making it clear thereby that there was no colourable

device involved in having two separate agreements for two

entirely separate and distinct purposes.

18. The reasons given by the learned Assessing Officer and the minority

judgment of the Appellate Tribunal are all reasons which transgress the

23

lines drawn by the judgments cited, which state that the revenue has no

business to second guess commercial or business expediency of what

parties at arms-length decide for each other. For example, stating that

there was no rationale behind the payment of INR 6.6 crores and that

the assessee was not a probable or perceptible threat or competitor to

the SWC group is the perception of the Assessing Officer, which cannot

take the place of business reality from the point of view of the assessee,

as has been pointed out by us hereinabove. The fact that M/s Maltings

Ltd. had incurred a loss in the previous year is again neither here nor

there. It may in future be a direct threat to the SWC group and may turn

around and make profits in future years. Besides, M/s Maltings Ltd. is

only one concern of the assessee – it is the assessee’s expertise in this

field on all counts that was the threat perception of the SWC group which

cannot be second guessed by the revenue. Equally the fact that there

was no penalty clause for violation of the Deed of Covenant, has been

found by us to be incorrect given the letter dated 02.04.1994. The fact

that the respondent-assessee in his letter dated 26.03.1998 in reply to

the show cause notice had stated that the SWC group had gained

substantial commercial advantage by the purchase of shares in CDBL

as the turnover increased from INR 9.79 crores in the accounting period

ending 31.03.1991 to INR 45.17 crores in the accounting period ending

31.03.1997 is again neither here nor there. As a matter of fact, the SWC

24

group, due to its own advertisement and marketing efforts, may well

have reached this figure after a period of six years (the date 30.09.1995

is wrongly recorded by the High Court in paragraph 19 – the correct date

as per the letter dated 26.03.1998 is 31.03.1991, as has been pointed

out by us hereinabove).

19. It only remains for us to point out the judgment in Guffic Chem (P) Ltd.

v. CIT (2011) 4 SCC 254. In this case, the question set out by the Court

is as follows:

“Whether a payment under an agreement not to

compete (negative covenant agreement) is a capital

receipt or a revenue receipt is the question which arises

for determination in this case?”

Here, the Court was dealing with an amount of INR 50 lakhs received

by the appellant-assessee from Ranbaxy as a non-compete fee under

an agreement dated 31.03.1997. This Court in negating the application

of Section 28(ii)(a) to such receipt, held as follows:

“Decision

4. The position in law is clear and well settled. 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.

5. The above dichotomy is clearly spelt out in the

judgment of this Court in Gillanders case [(1964) 53

ITR 283 (SC)] , in which the facts were as follows: the

25

assessee in that case carried on business in diverse

fields besides acting as managing agents, shipping

agents, purchasing agents and secretaries. The

assessee also acted as importers and distributors on

behalf of foreign principals and bought and sold on its

own account. Under an agreement which was

terminable at will the assessee acted as a sole agent

of explosives manufactured by Imperial Chemical

Industries (Export) Ltd. That agency was terminated

and by way of compensation Imperial Chemical

Industries (Export) Ltd. paid for first three years after

the termination of the agency two-fifths of the

commission accrued on its sales in the territory of the

agency of the appellant and in addition in the third year

full commission was paid for the sales in that year.

Imperial Chemical Industries (Export) Ltd. took a

formal undertaking from the assessee to refrain from

selling or accepting any agency for explosives.

6. Two questions arose for determination in Gillanders

case [(1964) 53 ITR 283 (SC)] , namely, whether the

amounts received by the appellant for loss of agency

was in normal course of business and therefore

whether they constituted revenue receipt? The second

question which arose before this Court was whether

the amount received by the assessee (compensation)

on the condition not to carry on a competitive business

was in the nature of capital receipt? It was held that

the compensation received by the assessee for loss of

agency was a revenue receipt whereas compensation

received for refraining from carrying on competitive

business was a capital receipt.

7. This dichotomy has not been appreciated by the

High Court in its impugned judgment. The High Court

has misinterpreted the judgment of this Court

in Gillanders case [(1964) 53 ITR 283 (SC)] . In the

present case, the Department has not impugned the

genuineness of the transaction. In the present case,

we are of the view that the High Court has erred in

interfering with the concurrent findings of fact recorded

by CIT (A) and the Tribunal.

26

8. One more aspect needs to be highlighted. The

payment received as non-competition fee under a

negative covenant was always treated as a capital

receipt till Assessment Year 2003-2004. It is only vide

the Finance Act, 2002 with effect from 1-4-2003 that

the said capital receipt is now made taxable [see

Section 28(v-a)]. The Finance Act, 2002 itself indicates

that during the relevant assessment year

compensation received by the assessee under non-

competition agreement was a capital receipt, not

taxable under the 1961 Act. It became taxable only

with effect from 1-4-2003. It is well settled that a liability

cannot be created retrospectively. In the present case,

compensation received under the non-competition

agreement became taxable as a capital receipt and

not as a revenue receipt by specific legislative

mandate vide Section 28(v-a) and that too with effect

from 1-4-2003. Hence, the said Section 28(v-a) is

amendatory and not clarificatory.

9. Lastly, in CIT v. Rai Bahadur Jairam Valji [(1959) 35

ITR 148 (SC)] it was held by this Court that if a contract

is entered into in the ordinary course of business, any

compensation received for its termination (loss of

agency) would be a revenue receipt. In the present

case, both CIT(A) as well as the Tribunal, came to the

conclusion that the agreement entered into by the

assessee with Ranbaxy led to loss of source of

business; that payment was received under the

negative covenant and therefore the receipt of Rs. 50

lakhs by the assessee from Ranbaxy was in the nature

of capital receipt. In fact, in order to put an end to the

litigation, Parliament stepped in to specifically tax such

receipts under the non-competition agreement with

effect from 1-4-2003.”

27

20. Respectfully following the aforesaid decision, we allow the appeal and

set aside the impugned judgment for all the reasons given by us above.

All pending applications, if any, stand disposed of in terms of the

judgment.

…………………..………………J.

(R. F. Nariman)

…………….. ……………………J.

(Navin Sinha)

……………..……………………J.

(B.R. Gavai)

New Delhi

22

nd

July, 2020.