By TIOL News Service

KOLKATA, MAY 22, 2014: THE issue before the Bench is - Whether a gratuitous one-time settlement amount paid by licensor to the licensee out of goodwill gesture, at the time of termination of the agreement, but not under any contractual obligation can be treated as revenue receipts. And the answer goes in favour of the assessee.

Facts of the case                

The assessee had entered into an agreement in 1995 with Beiersdorf AG., (BDF) a German concern, wherein the German Concern had agreed to grant a license to use the Trade Marks, the Know-How and the Copyrights in the Territory for a certain period and on agreed terms and conditions. The agreement was for a period of five years with a renewal clause for another period of five years. The Agreement was terminable by the Licensor with a prior notice of 12 months although not to be effective before December 31, 2000. The contract between the assessee and BDF continued for another term of five years after expiry of the initial five years and was thus to come to an end on 31st December, 2005. However, before that, an agreement dated 22nd March, 2005 was entered into between the assessee and BDF whereunder BDF agreed to pay a sum of Rs.18 crores for agreeing to BDF establishing a wholly owned subsidiary (WOS) in India (BDF India) for the purpose of carrying on the business of manufacturing, marketing and sale, importing and exporting of various products, in particular cosmetics and toiletries and other Beiersdorf consumer products. The assessee agreed to provide all necessary support and assistance that may be required by BDF to set up its subsidiary in India and to carry out its operation in India. The assessee also agreed to provide BDF with a No-objection certificate for facilitating the setting up of a WOS. In consideration, BDF agreed to pay assessee INR 100 million which shall be payable within 21 days after BDF has obtained the FIPB approval. In addition BDF has agreed to pay assessee INR 80 million to termination of the Agreements within 31st of December, 2005. It was agreed that the above-mentioned amounts are being paid by BDF on its own free will and BDF has agreed to pay JLM as a one-time settlement towards termination of the Said Agreements and also providing a NOC to BDF to facilitate the setting up of WOS.

The said amounts have been treated as capital receipts and confirmed by the AO. However, the CIT found this assessment as erroneous and prejudicial to the interests of the Revenue. The CIT was of the opinion that since the receipt has been considered as voluntary payment on a goodwill gesture, the said receipt should have been considered as income in the ambit of either Section 28 or 56 instead, the same has been transferred to capital reserve account. However, on appeal, the Tribunal quashed the order passed by the CIT u/s 263 by disregarding that the assessment order passed by the AO. The Tribunal held that the AO had taken one of the two possible views and therefore, it cannot be said that the order was passed without application of mind, making it erroneous and prejudicial to the interests of the Revenue.

Aggrieved, the CIT has filed this appeal before the High Court.

Having heard the parties, the High Court held that,

++ we are, at this stage only concerned with the question as to whether the Assessing Officer in allowing the claim of the assessee with respect to the four questions raised by the CIT including the receipt of sum of Rs.18 crores from the German Concern took a possible view of the matter. There was absolutely no attempt on the part of Mr. Nizamuddin to demonstrate that the Assessing Officer did not take a possible view in accepting the contention of the assessee. The parent contract dated 14th September, 1995 did not provide for payment of any compensation or any sum on any account whatsoever. Upon expiry of the contract, the assessee was liable to surrender the technical know-how and to cease to manufacture the goods. The assessee was not entitled in any event, upon expiry of the contract, to prevent the German Concern from setting up its 100% subsidiary for the purpose of manufacturing and marketing its goods. In case the German Concern paid the aforesaid sum for the purpose of securing an NOC from the assessee, even if it is assumed that by agreeing to issue the same the assessee agreed to have his manufacturing and trading structure impaired resulting in loss of his source of income, the receipt in that case according to the views of the Apex Court in the case of Kettlewell Bullen & Co. would be a capital receipt. If on the other hand it was a gratuitous payment as indicated in the agreement dated 22nd March, 2005 “amounts are being paid by BDF on its own free will” the receipt would still be a capital receipt following the judgment in the case of Divecha (P.H.) vs. CIT.

(See 2014-TIOL-790-HC-KOL-IT)