ITO, Ward-5(4), V. Modern Home Care Products Ltd.,

ITA 2595/DEL/2002

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2422 (ITAT-DELHI)
• Duration Of Justice: 16 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 13-04-2017
• Assessment Year: 1998-1999
• Appeal Filed On: 13-06-2002
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHEFALI SWAROOP
• Keywords: Capital asset; Business income; Cost of acquisition; Capital receipt; Condonation of delay
• Section: 263; 28

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E : NEW DELHI BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 2595/DEL/2002 (ASSESSMENT YEAR: 1998 - 99 ) ITO, WARD - 5(4), NEW DELHI VS. M/S. MODERN HOME CARE PRODUCTS LTD, 4, COMMUNITY CENTRE, NEW FRIENDS COLONY, NEW DELHI (APPELLANT) (RESPONDENT) CO NO. 192/DEL/2007 (IN ITA NO. 2595/DEL/2002) (ASSESSMENT YEAR: 1998 - 99) M/S. MODERN HOME CARE PRODUCTS LTD, 4, COMMUNITY CENTRE, NEW FRIENDS COLONY, NEW DELHI VS. ITO, WARD - 5(4), NEW DELHI (APPELLANT) (RESPONDENT) REVENUE BY : MS. SHEFALI SWAROOP, CIT DR ASSESSEE BY: SHRI AJAY VOHRA , SR. ADV SHRI GAURAV JAIN, ADV MS. MANISHA SHARMA, ADV DATE OF HEARING 23/8/2018 DATE OF PRONOUNCEMENT 13 /11/2018 O R D E R PER PRASHANT MAHARISHI, A. M. 1 . THIS IS AN APPEAL FILED BY THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - VIII, NEW DELHI DATED 21.03.2002 FOR THE ASSESSMENT YEAR 1998 - 99. 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL ITA NO. 2595/DEL/2002 : - I. IN DELETING AN ADDITION OF RS. 1.75 CRORES ON ACCOUNT OF TRADEMARK, II. IN DELETING AN ADDITION OF RS. 25 LACS ON ACCOUNT OF SALE OF KNOWHOW. PAGE | 2 III. IN DELETING AN ADDITION OF RS. 75 LACS ON ACCOUNT OF PRODUCT INFORMATION IV. IN DELETING AN ADDITION OF RS. 1.85 LACS BEING SERVICE CHARGES PAID TO M/S. TRI STAR HOME PRODUCTS (P) LTD, 3 . THE ASSESSEE HAS RAISED THE FOL LOWING GROUNDS OF APPEAL IN CO NO. 192/DEL/2007: - 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CONSIDERATION OF RS. 15000000/ - RECEIVED BY THE ASSESSEE AS NON - COMPETE FEE WAS CAPITAL RECEIPT NOT LIABLE TO TAX. 4 . THE FACTS OF THE CASES SHOWS THAT ASSESSEE IS A PUBLIC LIMITED COMPANY WHICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF HOUSECLEANING PRODUCTS SUCH AS FLOOR CLEANER, GLASS CLEANER ET C . THE ASSESSEE ALSO OWNS SEVERAL TRADEMARKS AND KNOW - HOW IN RELATION TO THE CONSUMER PRODUCTS MANUFAC TURED AND SOLD BY IT . 5 . THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 30/11/98 DECLARING TAXABLE INCOME OF 1 034649/ UNDER SECTION 115JA OF THE INCOME TAX ACT, 1961. IN THE ASSESSMENT YEAR , THE ASSESSEE HAS ENTERED INTO AN AGREEMENT DATED 1/8/1997 FOR SALE OF ITS TRADEMARKS, KNOW - HOW, PRODUCT INFORMATION, GOODWILL, ET CETERA TO HENKEL SPIC INDIA LIMITED AT A TOTAL CONSIDERATION OF 4.5 CRORES . THE ASSESSEE ALSO GAVE THE BREAKUP OF THE ABOVE CONSIDERATION INTO SALE OF TRADEMARKS OF 1.75 CRORES, GOODWILL OF TRADEMARK 25 LAKHS, SALE OF KNOWHOW 25 LAKHS, SALE OF PRODUCT INFORMATION 75 LAKHS AND CONSIDERATION TOWARDS NONCOMPETITION OF 1.5 CRORES . IN THE RETURN OF INCOME FILED BY THE ASSESSEE, THE CONSIDERATION OF 1.5 CRORE RECEIVED TOWAR DS NONCOMPETITION FEE WAS OFFERED FOR TAXATION . BUT THE REMAINING CONSIDERATION OF 3 CRORES WAS CLAIMED AS EXEMPT AS CAPITAL RECEIPT, THOUGH CREDITED TO THE PROFIT AND LOSS ACCOUNT . THE MAIN CONTENTION OF THE ASSESSEE IS THAT IN TERMS OF SECTION 55 (2) O NLY CONSIDERATION RECEIVED AGAINST THE TRANS FER OF GOODWILL, TENANCY RIGHT ET CETERA ARE CHARGEABLE TO TAX WHOSE CST OF ACQUISITION IS NIL. HOWEVER, TRADEMARKS, KNOW - HOW ETC HAVE NOT BEEN INCLUDED IN THAT SECTION , THEREFORE IF THEY DO NOT HAVE ANY COST OF ACQUISITION, THE PROVISIONS OF CHARGING CAPITAL GAIN ON SALE OF THEE ASSETS FAILS. THUS, ACCORDING TO THE ASSESSEE THE SALE PRICE OF 1 7 5 LAKHS PAGE | 3 AGAINST TRADEMARKS IS A CAPITAL RECEIPT AND NOT CHARGEABLE TO INCOME TAX . SIMILARLY, IS THE CASE OF SALE O F GOODWILL TRADEMARKS AND SALE OF KNOWHOW AND SALE OF PRODUCT INFORMATION. THE ASSESSEE ALSO RELIED UPON THE DECISION OF THE HONOURABLE SUPREME COURT IN CIT VS BC SRINIVASA SHETTY 128 ITR 295. 6 . L EARNED ASSESSING OFFICER REJECTED THE EXPLANATION OF THE A SSESSEE AND HELD THAT S UM OF 3 CRORES RECEIVED BY ASSESSEE ON SALE OF TRADEMARK, KNOW - HOW, ET CETERA IS CHARGEABLE TO TAX UNDER THE HEAD CAPITAL GAINS AS ASSESSEE HAS SOLD RIGHT TO MANUFACTURE PRODUCTS COST OF ACQUISITION OF WHICH IS NIL . ACCORDING LY, THE LEARNED ASSESSING OFFICER INCLUDED THE SALE CONSIDERATION OF 3 CRORES CHARGEABLE TO TAX AS A LONG - TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. 7 . DURING THE YEAR ASSESSEE HAS PAID A SUM OF R S. 429310/ TO M/S TRISTAR HOME PRODUCTS PRIVATE LIM ITED TOWARDS SERVICE CHARGES . A SSESSEE SUBMITTED THAT THE ABOVE COMPANY WAS THE SUPER STOCKIST FOR BIHAR AND ASSAM WHERE THE ASSESSEE COMPANY DID NOT HAVE ANY MARKETING NETWORK OF ITS OWN. THEREFORE, THE ASSESSEE COMPANY AVAILED THE SERVICES OF ITS SUPER STOCKIEST AGENT WHICH EMPLOYED ITS MARKETING FORCE FOR MARKETING THE PRODUCTS OF THE ASSESSEE COMPANY IN THOSE STATES. IT WAS FURTHER CONTENDED THAT THE SERVICE CHARGES WERE PAID TOWARDS SALARY AND TRAVEL EXPENSES OF THE STAFF ENGAGED BY THE SUPER STOCKI ST AND INCURRED FOR MARKETING OF PRODUCTS OF THE ASSESSEE COMPANY. ASSESSEES FURNISHED THE DETAILS OF THE SERVICE CHARGES BY WAY OF MONTHLY BILLS FOR STAFF SALARY AND TOLD EXPENSES FOR THE MONTH OF APRIL 1997 TO OCTOBER 1997. 8 . THE LEARNED ASSESSING OFFIC ER NOTED THAT AS ASSESSEE HAS SOLD THE RIGHT TO PRODUCE AND MARKET OF ITS ENTIRE RANGE OF PRODUCTS TO ANOTHER COMPANY V IDE THE AGREEMENT DATED 31/7/97 AND FACTUALLY DID NOT SELL ANY PRODUCTS OR TO ANY OTHER PARTY, EXCEPT FOR HENKEL THEREAFTER. THEREFOR E, IT WAS HELD BY THE LEARNED ASSESSING OFFICER THAT THE ABOVE COMPANY COULD NOT HAVE RENDERED ANY MARKETING SERVICES TO THE ASSESSEE COMPANY AFTER 31/7/1997 . THEREFORE, THE SERVICE CHARGES PAID OF 1 85978/ FOR THE MONTH OF AUGUST TO OCTOBER WERE DISALLOWED. PAGE | 4 9 . ACCORDINGLY, THE ASSESSMENT ORDER UNDER SECTION 143 (3) OF THE ACT WAS PASSED ON 20/2/2001 DETERMINING THE TOTAL TAXABLE INCOME OF THE ASSESSEE OF RS 29473513/ AGAINST THE RETURNED INCOME OF 1 034649/ . 10 . THE ASSESSEE CARRIED MATTER BEFORE THE LEARNED COMMISSIONER OF INCOME TAX APPEALS V III, NEW DELHI . THE LEARNED COMMISSIONER APPEALS V IDE ORDER DATED 21/3/2002 HAS HELD THAT THE 1.75 CRORES RECEIVED BY THE ASSESSEE TOWARD SALE OF TRADEMARKS IS NOT CHARGEABLE TO TAX BEING A CAPITAL RECEI PT . HE FURTHER HELD THAT 25 LAKHS RECEIVED ON ACCOUNT OF TRANSFER ON SALE OF KNOWHOW AND 75 LAKHS ON ACCOUNT OF PRODUCT INFORMATION IS NO TOWARDS THE RIGHT TO MANUFACTURE A PRODUCT AND ALSO NOT CHARGEABLE TO TAX UNDER THE HEAD CAPITAL GAINS . HOWEVER HE HELD THAT 25 LAKHS RECEIVED BY THE ASSESSEE FOR SALE OF GOODWILL RELATED TO TRADEMARK IS CHARGEABLE TO TAX UNDER THE HEAD CAPITAL GAIN . ASSESSEE DID NOT PREFER ANY APPEAL BEFORE US AS IT MAY NOT BE AGGRIEVED WITH THIS ORDER. HOWEVER, LD AO FILED AN APPEAL BEFORE US CONTESTSING THE CAPITAL GAIN AND DISALLOWANCE DELETED BY THE LD CIT A. 11 . THE REVENUE IS CHALLENGING THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX APPEALS, WHICH DELETED THE ADDITION OF 1.75 CRORES ON ACCOUNT OF TRADEMARK, 25 LAKHS ON ACCOUNT OF SALE OF KNOW - HOW, OF 75 LAKHS ON ACCOUNT OF PRODUCT INFORMATION AND DELETION OF THE DISALLOWANCE OF 1.85 LAKHS BEING SERVICE CHARGES PAID TO M/S TRI - STAR HOME PRODUCTS PRIVATE LIMITED. 12 . THE ASSESSEE HAS FILED ACROSS OBJECTION STATIN G THAT THE CONSIDERATION OF 1.5 CRORES RECEIVED BY THE ASSESSEE AS NON COMPETE FEE WAS CAPITAL RECEIPT AND NOT LIABLE TO TAX. IT IS APPARENT THAT THE ASSESSEE HAS OFFERED THE ABOVE AMOUNT A IS CHARGEABLE TO TAX IN ITS RETURN OF INCOME AND DID NOT OBJECT B EFORE THE LEARNED ASSESSING OFFICER AS WELL AS BEFORE THE LEARNED COMMISSIONER A PPEALS THAT THE ABOVE SUM IS NOT CHARGEABLE TO TAX BUT IS A CAPITAL RECEIPT . HOWEVER, THE SAME HAS BEEN RAISED IN THE CROSS OBJECTION BY THE ASSESSEE IN APPEAL FILED BY THE REV ENUE. . 13 . ASSESSEE COMPANY RECEIVED THE GROUNDS OF APPEAL FILED BY THE REVENUE ON 31/10/2005 . HOWEVER, THE CROSS OBJECTIONS WERE FILED BY THE ASSESSEE ON 5 JUNE 2007, THEREFORE, THERE WAS A CONSIDERABLE DELAY OF 552 DAYS IN PAGE | 5 FILING OF THOSE CROSS OBJECTION . ALONG WITH THE CROSS OBJECTIONS FILED THE ASSESSEE SUBMITTED AN APPLICATION FOR CONDONATION OF DELAY IN FILING THE CROSS OBJECTION . IT IS STATED IN THE APPLICATION THAT THE COUN SEL OF THE ASSESSEE ON THE BASIS OF RECENT LEGAL PRONOUNCEMENTS NOTICED THAT ASSESSEE IS NOW LEGALLY ADVISED THAT NON - COMPETITION FEES RECEIVED BY THE ASSESSEE PURSUANT TO THE AGREEMENT IS NOT TAXABLE IN THE HANDS OF THE ASSESSEE AS IT IS A CAPITAL RECEIPT AND THEREFORE IT WAS WRONGLY OFFERED TO TAX. ASSESSEE HAS ALSO SUBMITTE D THAT IT IS FOR THE 1 ST TIME THAT THE COMPANIES MATTER HAVE REACHED UP TO THE TRIBUNAL AND THE COMPANY WAS UNAWARE OF ITS RIGHT TO FILE CROSS OBJECTION AT THAT PARTICULAR TIME. ON THE BASIS OF THE ADVICE RECEIVED FROM THE COUN SEL OF THE ASSESSEE. THE ASSESSEE HAS FILED THE CROSS OBJECTION . IT WAS FURTHER STATED THAT THE DELAY WAS NEITHER WILLFUL NOR UNREASONABLE. THE ASSESSEE RELIED HEAVILY ON THE DECISION OF THE HONOURABLE SUPREME COURT IN 167 ITR 471 . THEREFORE, IT WAS STATED THAT THERE IS A SUFFIC IENT CAUSE FOR DELAY IN FILING OF THE CROSS OBJECTIONS . HENCE, DELAY MAY BE CONDONED AND THE CROSS OBJECTION FILED BY THE ASSESSEE MAY BE DECIDED ON THE MERITS. 14 . THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY OBJECTED TO THE APPLICATION FOR CONDONATION OF DELAY . IT WAS STATED THAT THE DELAY OF 552 DAYS IS A MAMMOTH DELAY, WHICH COULD NOT BE EXPLAINED BY THE ASSESSEE BY SHOWING THE SUFFICIENT CAUSE . IT WAS FURTHER STATED THAT MERELY BECAUSE THE ASSESSEE HAS RECEIVED THE ADVICE IT CANNOT BE STATED THAT THE DELAY WAS FOR SUFFICIENT CAUSE . IT WAS FURTHER STATED THAT EVEN OTHERWISE THE ASSESSEE HAS NOT SHOWN WHEN THE ADVICE WAS RECEIVED AND WHEN THE ASSESSEE FILED ACROSS OBJECTION AND IT ALSO DID NOT EXPLAIN THE DELAY WITH THAT ASPECT. 15 . WE HAVE CAREFULLY CO NSIDERED THE RIVAL CONTENTION AND PERUSED APPLICATION OF THE ASSESSEE FOR CONDONATION OF DELAY . CONSIDERING THE FACTS BEFORE US IT IS APPARENT THAT DELAY IS NOT OCCASIONED ON ACCOUNT OF ANY DELIBERATE OR CULPABLE NEGLIGENCE OR MALA FIDE FROM THE SIDE OF TH E ASSESSEE . THE ISSUE RAISED BY THE ASSESSEE IS PURELY LEGAL AND WHICH HAS ALSO ON ACCOUNT OF SOME LEGAL PRECEDENTS IN FAVOUR OF THE ASSESSEE WHICH HAS COME TO ITS KNOWLEDGE LATER ON . IT IS NOT REQUIRED TO BE EXPLAINED BY THE ASSESSEE PAGE | 6 ABOUT EACH DAYS D ELAY, BUT IF ASSESSEE EXPLAINS THE REASONS FOR DELAY WHICH ARE ACCEPTABLE IN A RATIONAL AND PRAGMATIC MANNER SAME SHOULD BE CONDONED . THE ABOVE PRINCIPLES HAVE ALSO BEEN LAID DOWN BY THE HONOURABLE SUPREME COURT IN 167 ITR 471 AND THEREFORE THE DELAY OF 55 2 DAYS IN FILING THE CROSS OBJECTION BY THE ASSESSEE IS HELD TO BE FOR SUFFICIENT CAUSE AND SAME IS CONDONED . CROSS OBJECTION OF THE ASSESSEE IS ADMITTED. 16 . ON THE MERITS OF THE CO, THE ASSESSEE SUBMITTED THAT THE CONSIDERATION RECEIVED TOWAR DS UNDERTAKING RESTRICTIVE COVENANTS OF NONCOMPETITION RESULTED IN LOSS OF ONLY SOURCE OF INCOME OF THE ASSESSEE AND THEREFORE SAME IS CAPITAL RECEIPT WHICH IS NOT CHARGEABLE TO INCOME TAX. IT WAS FURTHER STATED THAT CONSIDERATION TOWARDS UNDERTAKING OF NONCOMPETITI ON HAS BEEN SPECIFICALLY BROUGHT TO TAX HAS BUSINESS INCOME UNDER SECTION 28 (VA) OF THE ACT BY THE FINANCE ACT, 2002 WITH EFFECT FROM 1/4/ 2003. THEREFORE, PRIOR TO THAT SAME WAS NOT CHARGEABLE TO TAX. IT WAS FURTHER STATED THAT THE HONOURABLE SUPREME C OURT IN CASE OF GUFFIC CHEM P LTD 332 ITR 602 HELD THAT NONCOMPETING CONSIDERATION RECEIVED BY THE ASSESSEE IS CHARGEABLE TO TAX ONLY WITH EFFECT FROM 1/4/ 2003 AND CANNOT BE BROUGHT TO TAX IN PRECEDING ASSESSMENT YEARS. THE ASSESSEE ALSO RELIED O N SEVERAL DECISIONS OF THE COORDINATE BENCHES AND THE HONOURABLE HIGH COURT S TO SUPPORT ITS CONTENTION. 17 . ON THE QUESTION THAT SAME HAS NOT BEEN RAISED BEFORE THE LEARNED ASSESSING OFFICER OR BEFORE THE LEARNED 1 ST APPELLATE AUTHORITY AND 1 ST TIME BEFORE THIS TRIBUNAL , THE LEARNED AUTHORISED REPRESENTATIVE RELIED UPON THE DECISION OF BHARAT GENERAL 81 ITR 303 AND SUBMITTED THAT IT IS TRUE THAT THE ASSESSEE ITSELF HAD INCLUDED THAT NON COMPETE FEE INCOME IN ITS RETURN FOR THE YEAR IN QUEST ION BUT THERE IS NO ESTOPPELS IN THE INCOME - TAX ACT AND THE ASSESSEE HAVING ITSELF CHALLENGED THE VALIDITY OF TAXING THE NON COMPETE FEE DURING THE YEAR OF ASSESSMENT IN QUESTION, IT MUST BE TAKEN THAT IT HAD RESILED FROM THE POSITION WHICH IT HAD WRONGLY TAKEN WHILE FILING THE RETURN. HE THEREFORE SUBMITTED THAT THERE IS NO BAR THAT SUCH ISSUE CANNOT BE RAISED BEFORE THE COORDINATE BENCH FOR THE FIRST TIME . PAGE | 7 18 . COUNTERING THE CLAIM OF THE ASSESSEE , THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE IN THE RETURN OF INCOME VOLUNTARILY FILED THE AMOUNT RECEIVED AGAINST THE NON COMPETE FEE TO THE EXTENT OF 1.5 CRORE WAS VOLUNTARILY SHOWED AS EXI GIBLE TO TAX. THIS ISSUE WAS NOT EVEN RAISED BEFORE OR CONSIDERED BY THE CIT APPEAL DURING THE A PPELLATE PROCEEDINGS BEFORE HIM. HE FURTHER STATED THAT ACCORDING TO THE PROVISIONS OF SECTION 253 (4), THE ASSESSEE CANNOT FILE THE CROSS OBJECTION IN A CASE WHERE THE ISSUE HAS NOT BEEN CONSIDERED OR DEALT BY THE LOWER AUTHORITIES. HE VEHEMENTLY RELIED U PON THE DECISION OF COORDINATE BENCHES AND STATED THAT THE CROSS OBJECTION CANNOT BE ENTERTAINED AT THIS STAGE. 19 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE PROVISIONS OF SECTION 253 (4) OF THE ACT PROVIDES THAT WHEREIN APPEAL IS FILED BY THE APPELLANT AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX APPEALS , RESPONDENT IS ENTITLED TO FILE CROSS OBJECTIONS BEFORE THE TRIBUNAL. THE AFORESAID SECTION CLEARLY PROVIDES THAT THE MEMORANDUM OF CROSS OBJECTIONS SHALL BE DISPOSED OF BY THE TRIBUNAL AS IF IT WERE A N APPEAL PRESENTED BEFORE THE TRIBUNAL. HE FURTHER STATED THAT ACCORDING TO THE INCOME TA X APPELLATE TRIBUNAL RULES 1963, AS PER RULE 22 THE MEMORANDUM OF CROSS OBJECTION FILED UNDER SECTION 253 (4) OF THE ACT SHALL BE REGISTERED AN D NUMBER ED AS AN APPEAL AND ALL THE RULES RELATING TO DISPOSAL OF NORMAL APPEAL SHALL APPLY TO CROSS OBJECTIONS. HE FURTHER PLACED RELIANCE UPON SEVERAL DECISIONS AND STATED THAT THERE ARE NO F ETTERS ON THE RESPONDENT TO RAISE NEW PLEA/GROUNDS IN CROSS O BJECTION. HE FURTHER STATED THAT IT HAS BEEN HELD THAT IT IS NOT NECESSARY FOR THE RESPONDENT TO RESTRICT THE POINTS TO BE RAISED IN THE CROSS OBJECTION BY THE APPELLANT IN APPEAL. IN FACT, THE COURTS IN CERTAIN DECISION S ALSO HELD THAT THE RESPONDENT CAN RAISE NEW GROUNDS/PLEA EVEN IF THERE IS NO FORMAL MEMORANDUM OF CROSS OBJECTION FILED BY THE RESPONDENT. HE VEHEMENTLY RELIED ON 83 ITR 223, 234 ITR 663, 256 ITR 423 AND 102 ITD 189. HE THEREFORE SUBMITTED THAT THE CROSS OBJECTION FILED BY THE RESPONDENT I S PARI MATERIAL TO AN APPEAL FILED BY THE APPELLANT AND THEREFORE THE RIGHTS AVAILABLE TO AN APPELLANT IN AN APPEAL BEFORE THE TRIBUNAL ARE EQUALLY AVAILABLE TO A RESPONDENT IN THE CROSS OBJECTIONS WITHOUT ANY FETTERS. PAGE | 8 20 . WE HAVE CAREFULLY CONSIDERED THE RI VAL CONTENTIONS . ACCORDING TO THE PROVISIONS OF SECTION 253 (1) ANY ASSESSEE AGGRIEVED BY THE ORDERS OF THE SPECIFIED AUTHORITIES MAY FILE AN APPEAL BEFORE THE TRIBUNAL. THEREFORE THERE HAS TO BE AN ORDER BY WHICH THE ASSESSEE IS AGGRIEVED WITH AND THEREFORE SUCH GRIEVANCE OF THE ASSESSEE GIVES THE RIGHT TO THE ASSESSEE TO FILE AN APPEAL BEFORE THE TRIBUNAL. RIGHT OF FILING OF THE APPEAL IS ALSO GRANTED TO THE LEARNED ASSESSING OFF ICER THROUGH THE OFFICE OF THE PRINCIPAL COMMISSIONER OR COMMISSIONER OF INCOME TAX UNDER SECTION 253 ( 2) OF THE ACT. BUT ONLY CONDITION IS THAT THEY MUST HAVE AN OBJECTION TO ANY ORDER PASSED BY THE SPECIFIED AUTHORITY. THEREFORE IT IS NECESSARY THAT THE ORDER MUST BE PASSED BY THE SPECIFIED AUTHORITY AND THE LEARNED ASSESSING OFFICER MUST HAVE OBJECTION AGAINST THAT ORDER THEN ONLY THE APPEAL CAN BE FILED BY THE LEARNED ASSESSING OFFICER. ACCORDING TO THE PROVISIONS OF SECTION 253 (2) OF THE ACT, THE PRINCIPAL COMMISSIONER OR COMMISSIONER, IF HE OBJECTS TO ANY ORDER PASSED BY COMMISSIONER APPEALS, MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST THE ORDER . IF THE APPEAL IS FILED BY THE ASSESSEE THEN REVENUE IS A RESPONDENT AND IF THE APPEAL IS FILED BY TH E REVENUE THEN ASSESSEE IS A RESPONDENT, AND THE RESPONDENT IN BOTH THE SITUATION IS GRANTED ARRIVED TO FILE CROSS OBJECTION IN THE APPEAL FILED BY THE APPELLANT. ACCORDING TO THE PROVISIONS OF SECTION 253 (4), THE ASSESSEE ON RECEIPT OF NOTICE THAT APPEAL AGAINST THE ORDER OF THE COMMISSIONER A PPEALS HAS BEEN PREFERRED BY THE COMMISSIONER , MAY FILE A MEMORANDUM OF CROSS OBJECTIONS IN THE PRESCRIBED MANNER AGAINST ANY PART OF THE ORDER OF THE COMMISSIONER (APPEALS) . UNDOUBTEDLY, THE GROUNDS OF CROSS OBJECT ION CANNOT BE LIMITED TO THE GROUNDS RAISED IN THE APPEAL OF THE REVENUE . HOWEVER, THE QUESTION THAT ARISES IS THAT WHETHER IN THE CROSS OBJECTION THE ASSESSEE OR REVENUE (AO) CAN RAISE AN ISSUE, WHICH WAS NOT AT ALL A MATTER OF DISPUTE BEFORE THE ASSESSIN G OFFICER OR BEFORE THE 1 ST APPELLATE AUTHORITY . THE PROVISIONS OF SECTION 253 (4) AUTHORIZES THE OTHER PARTY TO FILE CROSS OBJECTION AGAINST ANY PART OF THE ORDER OF THE COMMISSIONER (APPEALS) . THEREFORE, IT IS APPARENT THAT THE ISSUE MUST HAVE BEEN DECID ED IN THE ORDER OF THE 1 ST APPELLATE AUTHORITY, THEN ONLY THE ASSESSEE CAN FILE A CROSS OBJECTION. IN THE PRESENT CASE, THE PAGE | 9 ASSESSEE HIMSELF HAS OFFERED 1.5 CRORES AS INCOME OF THE ASSESSEE. IT WAS NOT AGITATED BEFORE THE ASSESSING OFFICER THAT SUCH INCO ME IS A CAPITAL RECEIPT. IT WAS ALSO NOT AGITATED BEFORE THE COMMISSIONER APPEALS THAT SUCH INCOME IS NOT CHARGEABLE TO TAX. IN THE CROSS OBJECTION , ASSESSEE HAS RAISED THAT ISSUE. THEREFORE, APPARENTLY THE TAXABILITY OF 1.5 CRORES AS INCOME OF THE ASSE SSEE WAS NOT AT ALL PART OF THE ORDER OF THE COMMISSIONER APPEALS . HENCE IT CANNOT BE CONSIDERED IN CROSS OBJECTION. H ENCE SAME CANNOT BE RAISED IN THE CROSS OBJECTION FILED BY THE ASSESSEE, WHEN IT IS NOT DISPUTED BEFORE THE ANY OF THE LOWER AUTHORITIES. 21 . THE INCOME TAX ACT ITSELF AS LAID DOWN REMEDY FOR FORGONE CLAIM BY THE ASSESSEE AND THE FORGONE REVENUE BY THE LEARNED ASSESSING OFFICER. THE RESPECTIVE PROVISIONS OF SECTION 263 OF THE INCOME TAX ACT WHEREIN THE ORDER PASSED BY THE ASSESSING OFFICER IS FO UND TO BE ERRONEOUS IN PREJUDICIAL TO THE INTEREST OF THE REVENUE CAN BE REVISED BY THE LEARNED CIT. SIMILARLY THE PROVISIONS OF SECTION 264 OF THE INCOME TAX ACT PROVIDES THAT IF ANY WHICH IS PREJUDICIAL TO THE ASSESSEE CAN BE REVISED BY CIT. THEREFORE FO R SUCH EVENTUALITY AS IT IS RAISED BEFORE THE US THE RELEVANT PROVISIONS ARE THE PROVISIONS OF SECTION 264 OF THE INCOME TAX ACT AND NOT IN APPEAL BEFORE THE COORDINATE BENCH. UNDOUBTEDLY, SUCH APPLICATION UNDER SECTION 264 OF THE INCOME TAX ACT CAN BE MAD E BELATEDLY WITH THAT REQUEST FOR CONDONATION OF DELAY. BUT CERTAINLY SAME CANNOT BE AGITATED BY THE ASSESSEE BEFORE US IN CROSS OBJECTION. 22 . EVEN OTHERWISE IF THE ARGUMENT OF THE LEARNED AUTHORISED REPRESENTATIVE IS ACCEPTED IT WILL MAKE THE PROVISIONS OF S ECTION 263, 264 OF THE INCOME TAX ACT REDUNDANT IF THE ASSESSMENT IS SUBJECT MATTER OF APPEAL. CLEARLY THE PROVISIONS OF SECTION 263 AND 264 PROHIBITS THE ISSUES THAT ARE ALREADY PENDING IN APPEAL. 23 . THE LEARNED THAT AUTHORISED REPRESENTATIVE HAS RELIED UPON THE DECISION OF THE HONOURABLE DELHI HIGH COURT IN CASE OF CIT VS BHARAT THE GENERAL REINSURANCE CO LTD (1971) (81 ITR 303) ( D EL) . WE HAVE CAREFULLY CONSIDERED THAT DECISION. THE FACT OF THE CASE WAS THAT THAT ASSESSEE INCLUDED THE INCOME IN THE RETURN FOR THE ASSESSMENT YEAR 1958 59 AND ON APPEAL, THE TRIBUNAL HELD THAT INCOME FROM DIVIDENDS WAS NOT PAGE | 10 ASSESSABLE IN THE ASSESSMENT YEA R 1958 59, BUT IT WAS ASSESSABLE IN THE ASSESSMENT YEAR 1953 54 . HOWEVER, IN THAT PARTICULAR CASE THE ISSUE WAS BEFORE THE APPELLATE ASSISTANT COMMISSIONER WHERE THE ASSESSEE OBJECTED TO THE INCLUSION OF THE DIVIDEND INCOME AS INCOME PERTAINING TO THE RELEVANT PREVIOUS YEAR AND ALSO OBJECTED TO THE INCREASING THE QUANTUM OF DIVIDEND RECEIVED BY ADOPTING THE MARKET VALUE OF THE SPECIE IN WHICH IT HAD BEEN RECEIVED . THE APPELLATE ASSISTANT COMMISSIONER REJECTED BOTH THE CONTENTIONS. THEREFORE, IN THAT PARTICULAR DECISION, THERE WAS AN ISSUE, WHICH WAS ALREADY DECIDED BY THE APPELLATE ASSISTANT COMMISSIONER, AND THEREFORE THE ASSESSEE COULD AGITATE BEFORE THE TRIBUNAL . FURTHERMORE THE DECISION CITED BEFORE US DOES NOT DEAL WITH THE RIGHT OF THE ASSESSEE UNDER SECTION 253 (4) OF THE ACT . THEREFORE, THE RELIANCE PLACED BY THE LEARNED AUTHORISED REPRESENTATIVE ON THAT DECISION IS IMPROPER FOR THE ISSUE BEFORE US. 24 . THE LEARNED AUTHORISED REPRESENTATIVE HAS ALSO RELIED UPON THE DECISION OF THE HONOURABLE BOMBAY HIGH COURT IN CASE OF B R BAMASI VERSUS COMMISSIONER OF INCOME TAX (1972) (83 ITR 223) (BOM). ON CAREFUL READING OF THAT DECISION IT SAYS THAT THAT THE NEW GROUND OF THE APPEAL WOULD SERVE ONLY AS A WEAPON OF DEFENCE AGAINST THE APPEAL. IN THE PRESENT CA SE IT IS NOT AGAINST THE APPEAL OF THE REVENUE THAT ASSESSEE IS TAKING A DIFFERENCE BUT ASSESSEE IS TAKING A GROUND WHICH WAS NOT AT ALL MATTER OF DISPUTE BEFORE ANY OF THE LOWER AUTHORITIES. IN VIEW OF THIS THE ABOVE DECISIONS RELIED UPON BY THE LEARNED A UTHORISED REPRESENTATIVE DOES NOT SUPPORT THE CASE OF THE ASSESSEE. 25 . THE ANOTHER DECISION RELIED UPON BY THE LEARNED AUTHORISED REPRESENTATIVE IS CIT VERSUS PURBANACHAL PARIBAHAN GOSHTHI [ 234 ITR 663 ] WHERE THE HONOURABLE COURT HAS HELD THAT A COMBINED READING OF SECTION 253(4) OF THE INCOME - TAX ACT, 1961, AND RULE 22 OF THE INCOME - TAX (APPELLATE TRIBUNAL) RULES, 1963, MAKES IT ABUNDANTLY CLEAR THAT ANY PARTY AGGRIEVED AGAINST THE ORDER OF THE APPELLATE AUTHORITY CAN FILE A MEMORANDUM OF CROSS OBJECTION S AGAINST ANY PART OF THE ORDER OF THE DEPUTY COMMISSIONER (APPEALS). THE CROSS - OBJECTIONS NEED NOT BE CONFINED TO THE POINTS TAKEN BY THE OPPOSITE PARTY IN THE MAIN APPEAL. THE WORDS PAGE | 11 ''AGAINST ANY PART OF THE ORDER OF THE DEPUTY COMMISSIONER'' ARE WIDE EN OUGH TO COVER A SITUATION WHERE THE REVENUE HAS CHALLENGED THE ORDER OF THE DEPUTY COMMISSIONER (APPEALS) ON THE MERITS REGARDING THE QUANTUM OF THE TAX LIABILITY, BUT THE ASSESSEE IN CROSS - OBJECTIONS CAN CHALLENGE THE ORDER OF THE DEPUTY COMMISSIONER NOT ONLY ON THE QUANTUM OF TAX AMOUNT BUT ON OTHER POINTS ALSO. ON A POINT OF LAW THERE IS NO DIFFERENCE BETWEEN AN APPEAL AND A CROSS - OBJECTION. THE ONLY DIFFERENCE IF AT ALL THERE IS ANY IS THAT AN APPEAL CAN BE PREFERRED WITHIN 60 DAYS FROM THE DATE OF RECE IPT OF THE ORDER WHEREAS A CROSS - OBJECTION CAN BE FILED WITHIN A PERIOD OF 30 DAYS OF THE DATE OF SERVICE OF THE APPEAL BY THE OPPOSITE PARTY. ON CAREFUL READING OF THE ABOVE DECISION IT IS APPARENT THAT THE CONTENTION OF THE REVENUE IN THAT APPEAL WAS THA T THAT THE ASSESSEE IN FILING CROSS OBJECTIONS SHOULD HAVE TAKEN ONLY THE ISSUES WHICH HAVE BEEN RAISED BY THE REVENUE IN ITS APPEAL IN THE CROSS OBJECTION OF THE ASSESSEE. FURTHER IN THAT PARTICULAR CASE THE ASSESSEE IN CROSS OBJECTION RAISE THE APPLICABI LITY OF THE REGISTRATION OF THE FIRM HOLDING WHEN EITHER ONE OF THE ENTITIES WHICH WAS THE SUBJECT MATTER OF DISPUTE BEFORE THE ASSESSING OFFICER. THEREFORE, THE ASSESSMENT IN THAT PARTICULAR CASE WAS MADE HOLDING THE ASSESSEE FORMER NOT ENTITLED TO REGIST RATION AS WELL AS MAKING THE ADDITION. BEFORE THE REVENUE THE ASSESSEE IN CROSS OBJECTION CHALLENGED THE ISSUE OF REGISTRATION OF THE FIRM. THEREFORE IN THAT PARTICULAR CASE BOTH THE ISSUES WERE BEFORE THE ASSESSING OFFICER EMANATING FROM THE ORDER OF THE AO. HENCE THE FACTS OF THAT CASE ARE QUITE DISTINCT FROM THE FACTS BEFORE US. 26 . THE NEXT DECISION RELIED UPON BY THE LEARNED AUTHORISED REPRESENTATIVE IS OF ASAM COMPANY INDIA LTD VERSUS COMMISSIONER OF INCOME TAX (2002) 256 ITR 423. THE FACTS IN THAT PARTI CULAR CASE IS THAT IN THE RETURN OF INCOME THE APPLICANT COMPANY CLAIMED DEDUCTION UNDER SECTION 35B OF THE ACT IN RESPECT OF WAREHOUSE CHARGES PAID ABROAD. IN THE ASSESSMENT THE LEARNED ASSESSING OFFICER ALLOWED THE WEIGHTED DEDUCTION OF WAREHOUSE CHARGES UNDER SECTION 30 5B (1) (B) (IV) OF THE ACT READ WITH RULE 6AA OF THE INCOME TAX RULES 1962. THE COMMISSIONER REVISED THE ORDER UNDER SECTION 263 AND WITHDREW THE SAID DEDUCTION. THE ASSESSEE PAGE | 12 FILED AN APPEAL BEFORE THE ITAT AGAINST THE ORDER UNDER SECTION 263 OF THE INCOME TAX ACT. THE TRIBUNAL DISMISS THE APPEAL OF THE ASSESSEE AND CONFIRMED THE ORDER OF THE COMMISSIONER. IN THE PRESS ASSESSMENT PROCEEDINGS THE ASSESSEE OBJECTED TO THE WITHDRAWAL OF WEIGHTED DEDUCTION ON SEVERAL GROUNDS. THE LEARNED AO RE JECTED THE CONTENTION OF THE ASSESSEE AND FURTHER APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE COMMISSIONER APPEALS. THE COMMISSIONER ALLOWED THE CLAIM OF THE ASSESSEE AND THEREFORE THE REVENUE WAS BEFORE THE TRIBUNAL. FURTHER THE TRIBUNAL REJECTED 1 OF THE CONTENTION OF THE ASSESSEE WITH RESPECT TO THE DISALLOWANCE AS THE ASSESSEE DID NOT FILE ANY APPEAL OR CROSS OBJECTION BUT THE REVENUE FILED THE APPEAL. THEREFORE, IN THAT PARTICULAR CASE THE DISPUTE WAS BEFORE THE ASSESSING OFFICER, THE LEARNED COMMI SSIONER APPEALS AND EVEN INTO 263 PROCEEDINGS. THESE ARE NOT THE FACTS BEFORE US. BEFORE US THE AMOUNT WAS NOT DISPUTED AT ALL BEFORE ANY OF THE LOWER AUTHORITIES. HENCE RELIANCE PLACED BY THE LEARNED AUTHORISED REPRESENTATIVE ON THIS DECISION IS MISPLACED . 27 . AS THE ASSESSEE HAS RAISED THE ISSUE IN CROSS OBJECTION WHICH WAS NOT THE SUBJECT MATTER OF DISPUTE BEFORE THE DL AO AND ALSO NOT THE SUBJECT MATTER OF APPEAL BEFORE THE 1 ST APPELLATE AUTHORITY NOT BEFORE THE ASSESSING AUTHORITY AND THEREFORE LOOKING AT THE PROVISIONS OF SECTION 253 (4) OF THE ACT, THEREFORE , ASSESSEE CANNOT AGITATE THE TAXABILITY OF NON COMPETE FEES FOR THE 1 ST TIME BEFORE THE TRIBUNAL AS IN NO PART OF THE ORDER OF COMMISSIONER OF APPEALS HAS CONSIDERED AND DECIDED THE ISSUE OF TAXABILITY OF NON COMPETE FEES . 28 . ACCORDINGLY, THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. 29 . NOW WE COME TO THE APPEAL OF THE REVENUE . THE REVENUE HAS AGITATED THE CHARGEABILITY OF C ONSIDERATION RECEIVED ON TRADEMARK, SALE OF KNOW - HOW AND PRODUCT INFORMATION . THE ASSESSING OFFICER HAS TAKEN THESE RECEIPTS AS CAPITAL RECEIPT AND HAS LEVIE D CAPITAL GAINS ON THOSE INCOME CONSIDERING THE COST OF ACQUISITION AS NIL . THE LEARNED AO HAS HEL D THAT THE TRANSFER OF ASSETS IN THE NATURE OF TRADEMARKS, KNOW - HOW, PRODUCT INFORMATION, ET CETERA ARE NOTHING BUT TRANSFER OF GOODWILL OF THE BUSINESS AND THEREFORE THE ENTIRE CONSIDERATION WAS TO BE REGARDED AS TRANSFER OF PAGE | 13 GOODWILL ONLY . HE WAS ALSO OF THE VIEW THAT SINCE THE ASSESSEE HAS TRANSFERRED ALL THE ASSETS, INCLUDING STOCK IN RELATION TO THE AFORESAID BUSINESS AND UNDERTOOK A NEGATIVE/RESTRICTIVE COMMON AND OF NOT CARRYING THE AFORESAID BUSINESS, THE ASSESSEE I N EFFECT, HAS SOLD ITS RIGHT TO MAN UFACTURE SUCH PRODUCTS WHICH WAS ALSO SUBJECT TO TAX A S CAPITAL GAINS UNDER SECTION 45 READ WITH SECTION 48 AND 55 (2) (A) OF THE ACT. THE ASSESSEE CHALLENGED THE SAME BEFORE THE LEARNED COMMISSIONER APPEALS WHO HELD THAT THE ASSETS IN THE NATURE OF TRADE MARK AND KNOW - HOW ARE DIFFERENT FROM GOODWILL AND THEREFORE THE CONSIDERATION RECEIVED AGAINST A TRANSFER OF SUCH ASSETS CANNOT BE EQUATED WITH THE TRANSFER OF GOODWILL . HE HELD THAT ASSESSEE HAS NOT TRANSFERRED ITS RIGHT TO CARRY ON THE BUSINESS OF MANUFA CTURING, BUT OBSERVED THAT THE ASSESSEE HAD ONLY UNDERTAKEN A N NEGATIVE COVENANT OF NON - COMPETIT ION WITH THE TRANSFER THE FOR A LIMITED PERIOD OF 2 YEARS, WHICH IS NOT COVERED WITHIN THE PROVISIONS OF SECTION 55 (2) (A) OF THE ACT. ACCORDINGLY HE DELET ED THE ADDITION OF 2.75 CRORES MADE BY THE ASSESSING OFFICER IN RESPECT OF CONSIDERATION RECEIVED AGAINST THE TRANSFER OF TRADEMARKS, KNOW - HOW AND PRODUCT INFORMATION. 30 . THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY REFERRED TO THE ORDER OF THE LEARNE D ASSESSING OFFICER AND EXTENSIVELY THAT THE SAME AND RELIED UPON IT. 31 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE CONSIDERATION RECEIVED AGAINST THE TRANSFER OF VARIOUS ASSETS SUCH AS TRADEMARK, KNOW - HOW DOES NOT CONSTITUTE TRANSFER OF GOODWIL L. HE FURTHER REFERRED TO THE VARIOUS JUDICIAL PRECEDENTS WHERE THE GOODWILL HAS BEEN INTERPRETED. HE FURTHER STATED THAT THOUGH GOODWILL HAS NOT BEEN DEFINED UNDER THE INCOME TAX ACT BUT THE JUDICIAL PRECEDENT SAYS THAT GOODWILL IS MADE UP OF OF WHOLE L OT OF FACTORS, SUCH AS INFLUENCING THE FINAL MAKE - UP OF BUSINESS. HE FURTHER SUBMITTED THAT GOODWILL IS CLOSELY ASSOCIATED WITH THE NAME AND REPUTATION OF THE ASSESSEE CARRYING ON THE BUSINESS. HE THEREFORE STATED THAT IN THE PRESENT CASE ASSESSEE HAS NO T TRANSFERRED ITS GOODWILL/NAME/REPUTATION TO THE TRANSFER EE WHICH WERE TO CARRY ON THE BUSINESS OF MANUFACTURING CONSUMER PRODUCTS IN ITS OWN THE NAME. HE PAGE | 14 FURTHER SUBMITTED THAT THE TRANSFER OF TRADEMARK IS DIFFERENT FROM TRANSFER OF GOODWILL. HE FURTHER REFERRED TO THE PROVISIONS OF SECTION 55 (2) (A) OF THE ACT BY THE FINANCE ACT 2001 WITH EFFECT FROM 1/4/2002 TO DEEM THE COST OF ACQUISITION OF TRADEMARK AS NIL ON TRANSFER THEREOF. HE STATED THAT THE AFORESAID AMENDMENT IS PROSPECTIVE AND APPLICABLE FROM ASSESSMENT YEAR 2002 03 AND IS NOT APPLICABLE TO THE YEAR UNDER CONSIDERATION. HE FURTHER STATED THAT ABOVE AMENDMENT ESTABLISHES THAT TRADEMARK AS DISTINCT AND SEPARATE THE SAID FROM GOODWILL WHICH WAS TAXABLE DURING THE YEAR UNDER CONSIDERATION ON ACC OUNT OF ITS COST OF ACQUISITION BEING INDETERMINATE. HE FURTHER STATED THAT SIMILARLY KNOW - HOW AND PRODUCT INFORMATION WERE ALSO DISTINCT ASSETS WHICH WERE DIFFERENT FROM GOODWILL AND WERE NOT TAXABLE UNDER THE HEAD CAPITAL GAINS UNDER SECTION 45 READ WITH SECTION 48 AND SECTION 55 (2) ( A ) OF THE ACT. HE FURTHER STATED THAT THERE IS NO TRANSFER OF RIGHT TO MANUFACTURE BY THE ASSESSEE; IT IS MERELY A CASE OF UNDERTAKING A RESTRICTIVE COVENANT OF NOT CARRYING ON SUCH BUSINESS ACTIVITY FOR A LIMITED PERIOD OF 2 YEARS. HE THEREFORE SUBMITTED THAT THE CONSIDERATION RECEIVED BY THE APPELLANT TOWARDS TRANSFER OF VARIOUS ASSETS ALONG WITH UNDERTAKING OF RESTRICTIVE COVENANT FOR A LIMITED PERIOD OF TIME DID NOT CONSTITUTE TRANSFER OF RIGHT TO MANUFACTURE WITHIN THE M EANING OF SECTION 55 (2) ( A ) AND THEREFORE THE SAME WAS A CAPITAL RECEIPT NOT EXIST ABLE TO TAX UNDER THE PROVISIONS OF THE ACT. 32 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. UNDISPUTEDLY ON 1 / 8 / 1997 THE APPELLANT EN TERED INTO AN AGREEMENT WITH M/S HENKEL SP IC INDIA LTD FOR SALE OF ITS TRADEMARK GOODWILL RELATED TO TRADEMARKS KNOW - HOW AND THE PRODUCT INFORMATION IN RESPECT OF THE VARIOUS HOUSECLEANING PRODUCTS MANUFACTURED BY IT FOR A TOTAL CONSIDERATION OF 4.5 CRORES. THE ONLY DISPUTE IN APPEAL OF REVENUE IS WIT H RESPECT TO THE SALE OF TRADEMARK, SALE OF GOODWILL RELATED TO TRADEMARK, SALE OF KNOW - HOW AND SALE OF PRODUCT INFORMATION AMOUNTING TO 3 CRORES. ACCORDING TO THE ASSESSEE THESE CONSIDERATION IS EXEMPT FROM TAX AS THE SAME IS IN THE NATURE OF CAPITAL RE CEIPT. THE LEARNED ASSESSING OFFICER HELD THAT THESE ARE THE CAPITAL RECEIPT AS IT IS RECEIVED FOR THE SALE OF GOODWILL OR FOR THE RIGHT TO PAGE | 15 MANUFACTURE . THE AO FURTHER HELD THAT THE APPELLANT HAS TRANSFERRED ITS RIGHT TO MANUFACTURE, PROCESS OR PRODUCE THE GOODS BY TRANSFERRING THE KNOW - HOW AND PRODUCT INFORMATION IN RESPECT OF THOSE GOODS AS THE APPELLANT LOST ITS RIGHT TO PRODUCE AND MARKET THOSE GOODS FOR THE AGREED PERIOD OF 2 YEARS. FOR HOLDING SO , THE LEARNED ASSESSING OFFICER STATED THAT SINCE THE AP PELLANT HAS SOLD ITS MAJOR TRADEMARKS WHICH CONTRIBUTED TOWARDS SUBSTANTIAL PART OF ITS TURNOVER AND THAT AFTER THE DATE OF THE SAID AGREEMENT NO SALE OF ANY OTHER PRODUCT WAS MADE BY THE APPELLANT THE SALE OF TRADEMARK IS TO BE CONSIDERED AS THE SALE OF G OODWILL OF BUSINESS FOR THE PURPOSE OF SECTION 55 (2) OF THE ACT . H E FURTHER NOTED THAT THE APPELLANT S OPERATIONS HAVE SUBSTANTIALLY REDUCED IN THE SUBSEQUENT FINANCIAL YEAR AND THAT THE TURNOVER OF THE APPELLANT HAS REDUCED TO 5.67 LAKH AGAINST THE T URNOVER OF 202.42 LAKHS OWING TO THE SAID A TRANSFER OF TRADEMARK. HE THEREFORE HELD THAT SALE OF TRADEMARK IS A SALE OF GOODWILL OF THE BUSINESS AND THE SALE OF KNOW - HOW AND PRODUCT INFORMATION REPRESENT THE SALE OF RIGHT TO MANUFACTURE THE GOODS AND SA ME IS TAXABLE AS A LONG - TERM CAPITAL GAIN. HE CONSIDERED THE COST OF ACQUISITION OF THESE ASSETS AS NIL. THEREFORE, HE CHARGED THE GROSS CONSIDERATION RECEIVED AS LONG - TERM CAPITAL GAIN. ACCORDING TO THE PROVISIONS OF SECTION 45 OF THE INCOME TAX ACT ANY P ROFITS OF GAINS ARISING FROM THE TRANSFER OF A CAPITAL ASSET EFFECTED IN THE PREVIOUS YEAR SHALL BE CHARGEABLE TO INCOME TAX UNDER THE HEAD CAPITAL GAINS AND SELL BE DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER TOOK PLACE. THEREFORE, THERE HAS TO BE TRANSFER OF A CAPITAL ASSET. FIRSTLY, IT IS REQUIRED TO BE EXAMINED THAT WHETHER THE TRADEMARK, KNOW - HOW AND THE PRODUCT INFORMATION IS A CAPITAL ASSET OR NOT. THE PROVISIONS OF SECTION 2 (14) OF THE ACT DEFINES THE CAPITAL ASSET MEANS PROP ERTY OF ANY KIND HELD BY AN ASSESSEE WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION. THEREFORE, FROM THE ABOVE DEFINITION IT IS APPARENTLY CLEAR THAT TRADEMARK, KNOW - HOW AND THE PRODUCT INFORMATION IS A CAPITAL ASSET. FURTHER ACCORDING TO THE PRO VISIONS OF SECTION 48 OF THE INCOME TAX ACT , THE ME THOD OF COMPUTATION OF THE CAPITAL GAIN IS PROVIDED STATING THAT FROM THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT O F THE PAGE | 16 TRANSFER OF CAPITAL ASSET, THE COST OF ACQUISITION OF THE ASSET OR THE COST OF ITS IMPROVEMENT IS REQUIRED TO BE DEDUCTED. THEREFORE, IN THE PRESENT CASE IT IS NECESSARY TO FIND OUT THAT WHAT IS THE COST OF ACQUISITION OR THE COST OF IMPROVEMENT OF THESE ASSETS. SECTION 55 (2) (A) DEFINES THAT FOR THE PURPOSE OF COMPETITION OF CAPITAL GAIN UNDER SECTION 48 AND 49 THE COST OF ACQUISITION FOR VARIOUS CAPITAL ASSETS TO BE TAKEN AS NIL. FURTHER IN CASE OF A CAPITAL ASSET WHICH DOES NOT HAVE ANY COST OF ACQUISITION TO THE APPELLANT , NO CAPITAL GAIN RESULTS UNLESS OTHE RWISE SPECIFIED. IN THE PRESENT CASE, THE CLAIM OF THE ASSESSING OFFICER IS THAT THE TRADEMARK AS PART OF OR IS GOODWILL. THE LEARNED COMMISSIONER OF INCOME TAX HAS HELD THAT GOODWILL AND TRADEMARK ARE DISTINCT ENTITIES IN LAW THOUGH BOTH ARE INTANGIBLE AS SETS AND BOTH GROW OVER. O N TIME, BOTH OF THEM HAVE THE POTENTIAL OF HISTORY BEHIND THEM AS THEY ARE COMMONLY RELATED TO THE BUSINESS. HE HAS GIVEN A CLEAR - CUT DISTINCTION THAT THE GOODWILL IS LATENT AND THE TRADEMARKS ARE EXPRESS. HE FURTHER STATED THAT I N CASE OF THE GOODWILL THE PROVISIONS OF THE INCOME TAX ACT PROVIDES THAT THE COST OF ACQUISITION SHALL BE TAKEN AS NIL , HOWEVER IN CASE OF THE TRADEMARK THE COST OF REGISTRATION OF TRADEMARK IS NOT THE COST OF ACQUISITION BUT IT IS THE COST OF REGISTRATIO N OF THOSE INTANGIBLE ASSETS WHICH ARE ALREADY THERE. HE HAS FURTHER HELD THAT GOODWILL IS AN ADVANTAGE OF THE REPUTATION AND CONNECTIONS FORMED WITH THE CUSTOMERS TOGETHER WITH THE CIRCUMSTANCES MAKING THE CONNECTION IS DURABLE IT IS THAT COMPONENT OF THE TOTAL VALUE OF THE UNDERTAKING WHICH IS ATTRIBUTABLE TO THE ABILITY OF THE CONCERNED 1 PROFITS OVER THE COURSE OF YEARS OR IN EXCESS OF NORMAL AMOUNTS BECAUSE OF REPUTATION, LOCATION AND OTHER FEATURES. THEREFORE HE HELD THAT GOODWILL AND TRADEMARKS ARE D ISTINCT. NO INFIRMITY IS POINTED OUT IN THIS FINDING OF THE LEARNED COMMISSIONER APPEALS AND WE FULLY ENDORSE THE SAME. 33 . FURTHER IN THE PRESENT CASE THE ASSESSEE HAS PARTED WITH ONLY SOME OF THE TRADEMARKS AND HAS AGREED TO NOT TO COMPETE WITH THE HENKEL F OR ONLY F 2 YEARS BY USING ITS NAME. IT HAS ALSO AGREED TO SELL ITS PRODUCTS TO HENKEL ONLY EXCLUSIVELY. THEREFORE SUBSTANTIAL BUSINESS REVENUE STANDS TRANSFERRED TO HENKEL BUT IT CANNOT BE SAID THAT APPELLANT HAS CEASED TO EXIST AFTER THE EXECUTION OF THE SAID AGREEMENT. IT MIGHT BE POSSIBLE THAT PAGE | 17 THE TURNOVER OF THE COMPANY HAS FALLEN SUBSTANTIALLY BUT BECAUSE OF THE REASON THAT FOR 2 YEARS THE ASSESSEE CANNOT COMPETE WITH THE PRODUCTS MANUFACTURED BY HENKEL. THEREFORE FOR THE IMPUGNED ASSESSMENT YEAR WE A RE IN CONF O RMITY WITH THE OPINI ON OF THE LEARNED COMMISSIONER A PPEALS THAT CONSIDERATION RECEIVED ON ACCOUNT OF TRANSFER OF TRADEMARK OF 1.75 CRORES IS NOT CHARGEABLE TO TAX UNDER THE HEAD CAPITAL GAIN AS, THOUGH TRADEMARK IS A CAPITAL ASSET, BUT THE COST OF ACQUISITION OF THE SAME IS NOT ASCERTAINABLE. 34 . COMING TO THE ISSUE OF CHARGEABILITY OF TRANSFER OF SALE OF KNOW - HOW OF 25 LAKHS ON SALE OF PROD UCT INFORMATION OF 75 LAKHS , WHETHER THAT AMOUNTS TO THE TRANSFER OF RIGHT TO MANUFACTURE, PRODUCE OR PROCESS ANY ARTICLE OR THING WHERE THE COST OF ACQUISITION WOULD BE NIL. IF BOTH THESE ITEMS OF THE CAPITAL ASSETS COUPLED WITH THE NONCOMPETE AGREEMENT FOR 2 YEARS IS HELD TO BE THE TRANSFER OF RIGHT TO MANUFACTURE PRODUCE OR PROCESS ANY ARTICLE OR THING , THEN THE TOTAL SALE CONSIDERATION OF RUPEES ONE CRORE SHALL BE CHARGEABLE TO TAX AS A CAPITAL GAIN AND THE COST OF ACQUISITION OF IT WOULD BE CONSIDERE D AS NIL IN VIEW OF THE PROVISIONS OF SECTION 55 (2) OF THE ACT. THE LEAR NED COMMISSIONER OF INCOME TAX HA S CONSIDERED THE CLAUSE 2.1.3 OF THE AGREEMENT WHICH PROVIDES THAT IT IS ONLY THE TRANSFER OF THE KNOW - HOW. ACCORDING TO THE CLAUSE NUMBER 2.1.4 OF TH E AGREEMENT, IT IS ONLY THE TRANSFER OF THE PRODUCT INFORMATION. CLAUSE NUMBER 1.8 OF THE AGREEMENT DEFINES THE KNOW - HOW WHICH MEANS ALL THE INFORMATION OWNED BY THE VENDORS IN RELATION TO THE PRODUCTS INCLUDING BUT NOT LIMITED TO PRODUCT SPECIFICATION, CO MPOSITION, INGREDIENTS AND FORMULA, TECHNICAL KNOWLEDGE, PROCESS KNOWLEDGE, TECHNICAL LITERATURE, DESIGN, DATA SHEETS ET CETERA. THEREFORE, NOW IT IS TO BE EXAMINED THAT WHETHER THE TRANSFER OF THESE TWO CAPITAL ASSETS WILL RESULT INTO THE TRANSFER OF RIGH T TO MANUFACTURE, PRODUCE OR PROCESS OR ANY ARTICLE OR THING. IT IS CONTESTED BY THE ASSESSEE THAT NON COMPTETEION FEES OF 1.5 CRORES THE ASSESSEE HAS AGREED TO NOT TO USE THE RIGHT TO KNOW - HOW AND TO THE PRODUCT INFORMATION FOR A LIMITED PERIOD OF 2 YE ARS AND THE SAME AMOUNT HAS ALREADY BEEN OFFERED TO TAX. THEREFORE, THE CONTENTION OF THE ASSESSEE IS THAT AFTER THE EXPIRY OF THE 2 YEARS THE APPELLANT CAN PAGE | 18 MAKE USE OF ITS RIGHT TO KNOW HOW AND THE PRODUCT INFORMATION TO MANUFACTURE OR PRODUCE ITS OWN GOO DS. THEREFORE, ACCORDING TO THE ASSESSEE THERE IS NO TRANSFER OF ANY RIGHT TO MANUFACTURE, PRODUCE OR PROCESS. ON CAREFUL CONSIDERATION OF THIS ARGUMENT IT IS APPARENTLY CLEAR THAT BY TRANSFERRING THE KNOW - HOW AND THE PRODUCT INFORMATION IN RESPECT OF GOOD S THE APPELLANT HAS NOT CEASED ITS RIGHT TO MANUFACTURE, PRODUCE OR PROCESS THE GOODS. EVEN OTHERWISE, IT IS ONLY FOR THE 2 YEARS THAT THE ASSESSEE HAS ENTERED INTO A NONCOMPETE AGREEMENT. THEREFORE WE FIND OURSELVES IN AGREEMENT WITH THE FINDING OF THE LE ARNED CIT APPEAL THAT THE SAID CAPITAL RECEIPT IS NOT LIABLE TO TAX WITHIN THE MEANING OF THE PROVISIONS OF SECTION 55 (2) OF THE ACT. IN VIEW OF THIS, THE SALE OF KNOW - HOW AND THE SALE OF THE PRODUCT OF 25 LAKHS AND 75 LAKHS RESPECTIVELY IS NOT CHARGE ABLE TO TAX UNDER THE HEAD CAPITAL GAINS. 35 . ACCORDINGLY, GROUND NUMBER 1, 2 AND 3 OF THE APPEAL OF THE REVENUE ARE DISMISSED. 36 . GROUND NUMBER 4 OF THE APPEAL OF THE REVENUE IS AGAINST THE DELETION OF DISALLOWANCE OF 1.85 LAKHS ON ACCOUNT OF SERVICE CHARGES P AID TO M / S TRISTAR HOME PRODUCTS PRIVATE LIMITED. 37 . THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF THE LEARNED AO WHEREAS THE LEARNED AUTHORISED REPRESENTATIVE RELIED UPON THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX APPEALS. 38 . WE HAV E CAREFULLY CONSIDERED THE RIVAL CONTENTION AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE FACTS HAVE ALREADY BEEN DISCUSSED BY US EARLIER. THE CLAIM OF THE LEARNED ASSESSING OFFICER IS THAT WHEN THE ASSESSEE HAS ALREADY SOLD WITH EFFECT FROM 1/8/97 THE BUSINESS TO THE HENKEL THE EXPENDITURE INCURRED BY THE ASSESSEE AFTER THAT DATE IS NOT ALLOWABLE AS THERE IS NO SERVICES RENDERED BY THAT PARTY. THE CLAIM OF THE ASSESSEE IS THAT THE SUPER STOCKIEST WAS ONLY CHARGING SERVICE CHARGES FOR THE APPELLANT O N MONTHLY BASIS TOWARDS THE SALARIES AS WELL AS THE 2 EXPENSES OF THE PERSON EMPLOYED. THE LEARNED COMMISSIONER APPEALS ALLOWED THE CLAIM OF THE ASSESSEE STATING THAT THE SERVICES OF THE EMPLOYEES OF THE SUPER STOCK IEST WERE AVAILED OF BY IT FOR BUSINESS PURPOSES THE APPELLANT DID NOT HAVE ITS OWN STAFF IN THE REGION OF BIHAR PAGE | 19 AND A SUM THE CLAIM WAS ALLOWED IN THE DISALLOWANCE OF THE EXPENDITURE WAS DELETED. THE LEARNED DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT WHAT IS THE INFIRMITY IN THE ORDER OF T HE LEARNED COMMISSIONER OF INCOME TAX APPEALS. THEREFORE, WE DO NOT FIND ANY MERIT IN THE GROUND NUMBER 4 OF THE APPEAL OF THE REVENUE AGAINST THE DELETION OF DISALLOWANCE OF 1.85 LAKHS ON ACCOUNT OF SERVICE CHARGES PAID. ACCORDINGLY, GROUND NUMBER 4 OF THE APPEAL IS DISMISSED. 39 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. 40 . CONSEQUENTLY THE APPEAL OF THE REVENUE AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. 41 . ORDER PRONOUNCED IN THE OPEN COURT ON 13 / 11 / 2018 . S D / - S D / - ( AMIT SHUKLA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13 / 11 / 2018 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI PAGE | 20 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/ PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 4 . 1 1 . 2 0 1 8 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER