By TIOL News Service

AHMEDABAD, OCT 30, 2015: THE issue is - Whether ex-gratia payment made by employer out of his own sweet will can be treated as 'profits in lieu of salary' u/s 17(3)(i). NO is the answer.

Facts of the case

The assessee, who is assessed in the status of an individual, filed his return showing total income of Rs.1,32,430/-. The return was processed u/s 143(1)(a) granting refund of Rs.1,88,550/-. Since the refund was more than Rs.1,00,000/-, the case was taken up for scrutiny. During assessment, it was found that the assessee had received an amount of Rs.3,51,308/- being ex-gratia compensation on premature cessation of his services. In the footnote of return, assessee had stated that since neither the terms of employment nor the service rules of the company provide for making ex-gratia payment, this claim as capital receipt was not liable to tax as the same was not paid as retrenchment compensation either under labour laws or under the terms of employment. The AO however denied assessee’s claim and added the amount to the total income of assessee.

On appeal, the CIT(A) held that the amount received by assessee was not taxable and deleted the addition made by the AO. According to him, the employer of the assessee offered to give a compensation of Rs.3,51,308/- in case where he voluntarily retired from service, which the assessee accepted. The said amount was paid de hors any contract of employment and was paid voluntarily and was paid as compensation for premature termination of employment. On further appeal, the ITAT reversed the order of CIT(A).

Having heard the parties, the High Court held that,

++ it is seen that the Calcutta High Court in the case of Commissioner of Income-Tax v. Ajit Kumar Bose held that anything paid to assessee in connection with his termination from employment other than the salary, is ex-gratia payment and totally voluntary. It was not compensation which implies some sort of an obligation to pay. The court, accordingly, held that it cannot be said that the amount in question was "profits in lieu of salary" within the meaning of Section 17(3) and was not taxable as such. It is also seen that the Delhi High Court in the case of Commissioner of Income-Tax v. Deepak Verma observed that the word "compensation" is not defined under the I-T Act. The court after referring to the dictionary meaning of "compensation" observed that it is clear that when the payment is to be received as "compensation", the employee would have a right to receive such payment. If the employee has no right, it cannot be treated as "compensation". The court held that it is for this reason that if the payment is made ex-gratia or voluntary by an employer out of his own sweet will and not conditioned by any legal duty or legal obligation, whether on sympathetic reasons or otherwise, such payment is not to be treated as "profits in lieu of salary" under clause (i). This court is in agreement with the view adopted by the Calcutta High Court and the Delhi High Court in the above decisions;

++ it has been contended on behalf of the revenue that the manner of computation of the amount to be paid to the assessee under the settlement, reveals that the same is in the nature of terminal benefits on account of bringing an end to the services of the assessee. In the opinion of this court, the manner of computation of the amount payable to the assessee in terms of the settlement, would not change the character of the payment, inasmuch as, the same being voluntary in nature and without any obligation on the part of the employer, would not amount to compensation in terms of section 17(3)(i). The Tribunal was, therefore, not justified in holding that the amount of Rs.3,51,308/- received by the assessee pursuant to the judgment of the High Court was income liable to tax u/s 17(3). The question stands answered accordingly, in favour of assessee deleting the addition made by the AO.

(See 2015-TIOL-2506-HC-AHM-IT)