ADDL CIT 18(2), MUMBAI v. GOVINDLAL C. MANDHANA, MUMBAI

ITA 3905/MUM/2010 | 2006-2007
Pronouncement Date: 15-02-2012 | Result: Dismissed

Appeal Details

RSA Number 390519914 RSA 2010
Assessee PAN AAUPM8565E
Bench Mumbai
Appeal Number ITA 3905/MUM/2010
Duration Of Justice 1 year(s) 9 month(s) 2 day(s)
Appellant ADDL CIT 18(2), MUMBAI
Respondent GOVINDLAL C. MANDHANA, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 15-02-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 15-02-2012
Date Of Final Hearing 31-01-2012
Next Hearing Date 31-01-2012
Assessment Year 2006-2007
Appeal Filed On 13-05-2010
Judgment Text
ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 1 OF 15 IN THE INCOME TAX APPELLATE TRIBUNAL 'G' BENCH MUMBAI BEFORE SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER AND SHRI V. DURGA RAO JUDICIAL MEMBER ITA NO. 3881 & /MUM/2010 (ASSESSMENT YEAR: 2006-07) GOVINDLAL MANDHANA ADDL. CIT RANGE-18(2) 338 A TO Z INDL.ESTATE 1 ST FLOOR PIRMAL CHAMBERS GANPATRAO KADAM MARG LALBAUGH PAREL LOWER PAREL MUMBAI 400013 VS MUMBAI 400012 PAN AAUPM 8565 E APPELLANT RESPONDENT ITA NO.3877/MUM/2010 (ASSESSMENT YEAR 2006-07) GOVINDLAL MANDHANA (HUF) ADDL. CIT RANGE-18(2) 338 A TO Z INDL.ESTATE 1 ST FLOOR PIRMAL CHAMBERS GANPATRAO KADAM MARG LALBAUGH PAREL LOWER PAREL MUMBAI 400013 VS MUMBAI 400012 PAN AACHG 2774 B APPELLANT RESPONDENT ITA NO.3905/MUM/2010 (ASSESSMENT YEAR 2006-07) ADDL. CIT RANGE-18(2) GOVINDLAL C MANDHANA 1 ST FLOOR PIRMAL CHAMBERS 338 A TO Z INDL.ESTATE LALBAUGH PAREL GANPATRAO KADAM MARG MUMBAI 400012 VS LOWER PAREL MUMBAI 400013 ADDL. CIT RANGE-18(2) PAN AAUPM 8565 E APPELLANT RESPONDENT ITA NO.3906/MUM/2010 (ASSESSMENT YEAR 2006-07) DY. CIT RANGE-18(2) GOVINDLAL C MANDHANA HUF 1 ST FLOOR PIRMAL CHAMBERS 338 A TO Z INDL.ESTATE LALBAUGH PAREL GANPATRAO KADAM MARG MUMBAI 400012 VS LOWER PAREL MUMBAI 400013 PAN AACHG 2774 B APPELLANT RESPONDENT ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 2 OF 15 ASSESSEE BY: SHRI RAJAN VORA REVENUE BY: SHRI A.K. NAYAK DATE OF HEARING: 31/01/2012 DATE OF PRONOUNCEMENT: 15/02/2012 O R D E R PER BENCH. THESE CROSS APPEALS ARE BY THE ASSESSEE AND THE REV ENUE IN THE CASE OF GOVINDLAL MANDHANA ON INDIVIDUAL CAPACI TY AS WELL AS HUF CAPACITY AGAINST THE ORDERS OF THE CIT (A)-29 MUMBAI DATED 26/02/2010 RESPECTIVELY. 2. THE ASSESSEE EARNED GAIN ON SALE OF SHARES HELD IN A COMPANY MANAGED BY MANDHANA FAMILY AND OFFERED THE SAME AS CAPITAL GAINS. THE ASSESSING OFFICER WAS OF THE VIE W THAT AS THERE IS NON-COMPETE CLAUSE IN THE SALE OF SHARES TO A FOREI GN COMPANY A PORTION OF THE AMOUNT RECEIVED AS PART OF SALE CONS IDERATION WAS ATTRIBUTABLE TO NON-COMPETE CLAUSE. ACCORDINGLY THE ASSESSING OFFICER BIFURCATED THE AMOUNT AND TOOK ` 205/- PER SHARE OUT OF 570/- RECEIVED BY THE ASSESSEE PER SHARE AS TOWARDS NON-COMPETE FEE AND BROUGHT TO TAX AS BUSINESS INCOME UNDER SEC TION 28(VA). AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE LEARNED CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER IN PRINCIPLE BUT REWORKED THE AMOUNT TO ` 41/- PER SHARE WHICH CAN BE ATTRIBUTABLE TO NON-COMPETE FEES. HE DIFFERED FR OM THE DECISION OF COORDINATE BENCH IN THE CASE OF HOMI APSI BALSARAS VS. ACIT 30 DTR 576 TO HOLD THAT THERE IS SPECIFIC MENTION OF N ON-COMPETE OBLIGATION AND ACCORDINGLY DECIDED THE APPEAL. HENC E BOTH THE REVENUE AND THE ASSESSEE ARE IN APPEAL BEFORE US. 3. THE REVENUE IS CONTESTING IN ITS TWO GROUNDS ABOUT CIT(A) DIFFERING FROM THE EARNING CAPITALIZATION METHOD FO R VALUATION OF ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 3 OF 15 SHARES AND RESTRICTING THE AMOUNT OF NON COMPETE AM OUNT FROM ` 205/- PER SHARE TAKEN BY THE ASSESSING OFFICER TO ` .41/- PER SHARE. THE ASSESSEE HOWEVER QUESTIONS THE ENTIRE ACTION OF THE ASSESSING OFFICER AS CONFIRMED BY THE CIT (A) IN BIFURCATIN G THE SALE PRICE TOWARDS NON COMPETE VALUE AND FURTHER WITHOUT PREJ UDICE IN TREATING THE NON COMPETE PORTION OF SALE CONSIDERAT ION RECEIVED AS BUSINESS INCOME AND NOT AS CAPITAL GAIN WITHOUT APP RECIATING THE FACT THAT THE ASSESSEE WAS NOT CARRYING ON ANY BUSI NESS WHERE AS THE COMPANY WAS CARRYING ON THE BUSINESS WHOSE SHAR ES WERE TRANSFERRED. 4. AT THE OUTSET THE LEARNED COUNSEL SUBMITTED THAT TH IS ISSUE WAS COVERED BY THE DECISION OF THE COORDINATE BENCH IN THE CASE OF SAVITA N MANDHANA AND SHASHIKANT MANDHANA WHO ARE T HE OTHER SHARE HOLDERS IN THE TRANSACTION WHEREIN THE COORDI NATE BENCH UPHELD THE ASSESSEES CONTENTIONS. THE LEARNED DEPA RTMENTAL REPRESENTATIVE HOWEVER OBJECTED TO TREATING THE CA SE AS COVERED AND ARGUED THAT THERE WAS A FINDING IN THE ITAT ORD ER THAT THERE IS NO BUSINESS IN THE INDIVIDUAL CAPACITY WHEREAS THE FACTS INDICATE THAT THE ASSESSEES ARE IN THE BUSINESS AND FURTHER THERE WAS AN AMOUNT PAID AS NON COMPETE FEES IN THE AGREEMENT WH ICH SHOULD HAVE BEEN CONSIDERED. THE LD. DR ALSO RELIED ON THE COORDINATE BENCH DECISION IN THE CASE OF NAYAN C. SHAH 14 TAXM ANN.COM 155 (MUM) AND RAMESH D. TAINWALA 15 TAXMANN.COM 181 (MU M). 5. THE LEARNED COUNSEL HOWEVER SUBMITTED THAT THE COM PANY IS IN THE BUSINESS AND THE RESPECTIVE ASSESSEES WERE H AVING DIFFERENT BUSINESSES BUT NOT THE BUSINESS IN WHICH COMPANY WA S INVOLVED AS SUGGESTED BY THE LEARNED DEPARTMENTAL REPRESENTATIV E AND FURTHER SUBMITTED THAT THE AMOUNT RECEIVED AS NON COMPETE F EES BY THE MANAGING DIRECTOR WHO WAS MANAGING THE AFFAIRS OF T HE COMPANY TO WHOM EXCLUSIVELY NON COMPETE AMOUNT WAS PAID WAS OF FERED BY HIM AS BUSINESS INCOME THE FACT OF WHICH WAS RECORDED BY THE ITAT IN ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 4 OF 15 THE CASES SUPRA. IT WAS FURTHER SUBMITTED THAT THE AMOUNTS WERE RECEIVED FROM A FOREIGN COMPANY UNDER ARMS LENGTH P RINCIPLES AS A TOTAL CONSIDERATION ON SALE OF 50% SHARES IN THE CO MPANY. THEREFORE THERE IS NO NEED FOR BIFURCATING THE AMO UNT PARTLY TOWARDS THE VALUE OF THE SHARE OF THE COMPANY AND P ARTLY TOWARDS NON-COMPETE FEES WHEN NO AMOUNT WAS PAID TOWARDS NO N COMPETE FEES TO OTHER SHARE HOLDERS EXCEPT TO THE MANAGING DIRECTOR. EVEN IF A NON COMPETE FEES WAS PAID/ CONSIDERED THE SAME CA NNOT BE CONSIDERED AS BUSINESS INCOME AS THE RESPECTIVE ASS ESSEES ARE NOT IN THE SAME BUSINESS AND THE ENTIRE EXERCISE OF BIF URCATING THE AMOUNT TOWARDS SHARE VALUE AND NON COMPETE FEES WAS ALSO NOT NECESSARY WHEN THE SALE CONSIDERATION RECEIVED WAS TAXABLE AS CAPITAL GAINS ONLY. PROVISIONS OF SECTION 28(VA) AR E NOT APPLICABLE TO THE FACTS OF THE CASE AND SO THERE IS NO MERIT IN T HE ACTION OF THE ASSESSING OFFICER AND THE CIT (A). HE ALSO DISTINGU ISHED THE CASES RELIED ON BY THE LEARNED DEPARTMENTAL REPRESENTATIV E. 6. WE HAVE CONSIDERED THE ISSUE. BEFORE ADVERTING TO T HE ARGUMENTS OF THE LEARNED DEPARTMENTAL REPRESENTATIV E THE FOLLOWING FACTS ARE TO BE PLACED ON RECORD. THE ASS ESSEES BEFORE US WERE SHAREHOLDERS IN MANDHANA EXPORTS PVT LTD A C LOSELY HELD COMPANY OWNED AND MANAGED BY MANDHANA FAMILY FOR A NUMBER OF YEARS. IN THE YEAR 1996 THE ASSESSEE COMPANY ENTER ED INTO A JOINT VENTURE ARRANGEMENT WITH BORNEMANN AND BICK GMBH G ERMANY UNDER WHICH 50% OF EQUITY SHARES WERE ALLOTTED TO THIS GERMAN COMPANY AND THE NAME OF THE COMPANY WAS CHANGED TO MANDHANA BOREMANN INDUSTRIES PVT LTD (MANDHANA BOREMANN I N SHORT) . AS THIS GERMAN COMPANY WAS ACQUIRED BY A DUTCH COMPANY BY THE NAME OF PAXAR BV THE SHAREHOLDINGS IN MANDHANA BOR EMANN WERE TRANSFERRED TO PAXAR BV. IN THE RELEVANT PREVIOUS Y EAR PAXAR BV ACQUIRED ALL THE SHARES HELD BY MANDHANA FAMILY FOR A CONSIDERATION OF ` 570 PER SHARE WHICH WORKED OUT TO ` 45.60 CRORES. ALL THE ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 5 OF 15 SHAREHOLDERS IN MANDHANA FAMILY ENTERED INTO AN AGR EEMENT WITH PAXAR BV FOR THE PURPOSE OF THIS TRANSFER OF SHARES AND ONE OF THE CLAUSES IN THE AGREEMENT ALSO PROVIDED THAT THE TRA NSFEROR SHALL NOT CARRY ON OR BE INTERESTED IN ANY BUSINESS WHICH C OMPETES WITH THE BUSINESS OF MANDHANA BOREMANN. 7. AS SEEN FROM THE SHARE PURCHASE AGREEMENT PLACED ON RECORD 19 MEMBERS ENTERED INTO AGREEMENT WITH PAXAR BV COR PORATION OF NETHERLAND FOR SALE OF THEIR 50% SHARES OF 8 LAKH F ULLY PAID UP EQUITY SHARES OF ` 10/- EACH. THE CONSIDERATION ON PAYMENT WAS FIXED AT A FIXED PRICE OF 456 MILLION AT A PRICE OF ` 570/- PER SHARE AND PURCHASE CONSIDERATION SHALL BE PAYABLE TO PRO- RATA TO EACH OF THE SELLERS IN LUMP SUM SIMULTANEOUSLY AT COMPLETIO N OF THE AGREEMENT. THERE IS A NON-COMPETE CLAUSE AGAINST AL L SELLERS AS PART OF SALE COVENANTS VIDE PARA 5.6 WHEREIN EACH AND EV ERY SELLER AGREES NOT TO COMPETE WITH THE BUSINESS DIRECTLY OR INDIRE CTLY FOR A PERIOD OF 2 YEARS FROM THE DATE OF COMPLETION OF SALE. HOWEVE R THIS CLAUSE EXEMPTS MR. NITIN MANDHANA FOR A PERIOD OF ONE YEAR AS THERE IS SEPARATE RETENTION AGREEMENT INDICATING HIS SERVICE S FOR A PERIOD OF ONE YEAR AND FOR WHICH SEPARATE AMOUNT WAS PAID. CL AUSE 5.6(C) SPECIFIES BUSINESS AS UNDER:- THE EXPRESSION BUSINESS FOR PURPOSES OF THE FOREGO ING PROVISIONS SHALL MEAN AND INCLUDE GENERALLY THE GARMENT ACCESSORIES LINE OF BUSINESS AND SPECIFICAL LY ALL THE BUSINESS ACTIVITIES BEING CARRIED ON BY MBIL AS OF DECEMBER 8 2004 THE ABOVE COVENANT INDICATE THAT AFTER SALE OF SHAR ES THE GROUP OF PERSONS COLLECTIVELY WERE PREVENTED IN DONG ANY BUS INESS IN THE GARMENT ACCESSORIES LINE OF BUSINESS CARRIED ON BY THE COMPANY AND THIS WAS PART OF MANY SALE COVENANTS AGREED AT THE TIME OF SALE OF 50% OF SHARE HOLDING IN THE COMPANY TO THE FOREIGN COMPANY. THERE IS NO SPECIFIC CONSIDERATION PAID AS NON-COMPETE AM OUNT. EVEN ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 6 OF 15 THOUGH RESPECTIVE ASSESSEES HAVE BUSINESS INCOME O NLY THE COMPANY IS DOING THE BUSINESS AS SPECIFIED IN THE AGREEMENT. RESPECTIVE ASSESSEES BUSINESS IS INDEPENDENT AND SE PARATE OF THE LINE OF BUSINESS IN WHICH COMPANY WAS INVOLVED AND FOR WHICH NON- COMPETE CLAUSE WAS AGREED. THEREFORE EVEN IF ASSES SING OFFICERS OPINION IS TO BE CONSIDERED AS CORRECT THAT THE SHA RE PRICE WAS FIXED FOR NON-COMPETE CLAUSE ALSO SINCE RESPECTIVE PERSO NS ARE NOT IN THE BUSINESS OF COMPANYS LINE OF BUSINESS THE AMOUNT CANNOT BE CONSIDERED AS BUSINESS INCOME IN THE ABSENCE OF ANY BUSINESS ACTIVITY IN SIMILAR LINE. IT CAN ONLY BE CONSIDERED AS CAPITAL GAIN AMOUNT RECEIVED AS PART OF SALE CONSIDERATION UPON SALE OF SHARES BY INDIVIDUAL MEMBERS. THESE ASPECTS WERE CONSIDERE D IN THE COORDINATE BENCH DECISION OF HOMI APSI BALSARAS VS . ACIT 30 DTR 576 WHEREIN THAT ASSESSEE ALSO SOLD SHARES THROUGH SHARE PURCHASE AGREEMENT WHICH HAD ALSO A CLAUSE FOR NON COMPETE. CONSIDERING THE FACT THAT THE ASSESSEE ON HER OWN WAS NOT CARRY ING ON THE BUSINESS AND IT IS THE COMPANY WHICH WAS CARRYING I N THE BUSINESS AND AS PER SECTION 55(2)A WHERE THE CAPITAL ASSET I S IN NATURE OF RIGHT TO CARRY ON BUSINESS IT WAS HELD THAT IT WIL L FALL WITHIN THE AMBIT OF CAPITAL GAINS. THE FACTS IN THE ABOVE SAID CASE EQUALLY APPLIES TO THE FACTS IN THE PRESENT CASE. 8. CONSIDERING THESE ASPECTS THE COORDI NATE BENCH DECIDED IN FAVOUR OF THE ASSESSEE IN THE CASE OF SHASHIKANT G. MANDHANA HUF IN ITA NO.3908/MUM/2010 AND IN THE CASE OF SAVI TA N. MANDHANA IN ITA NOS.3900 AND 3878/MUM/2008. THE COO RDINATE BENCH DECISION IS AS UNDER: 4. WE FIND THAT EVEN IN THE CASE OF HOMI ASPI BAL SARA (SUPRA) THERE WAS A SPECIFIC NON COMPETE OBLIGATION AND YET THE COORDINATE BENCH WAS OF THE VIEW THAT NO PA RT OF THE SALE CONSIDERATION OF SHARES COULD BE ATTRIBUTE D TO BE TAXED IN THE HANDS OF THE ASSESSEE AS BUSINESS INCO ME UNDER SECTION 28(VA) AS IS CLEARLY DISCERNABLE FRO M THE FOLLOWING OBSERVATIONS MADE BY THE COORDINATE BENCH : ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 7 OF 15 THE A.O HAS DETERMINED THE BOOK VALUE OF SHARES AND HAS TREATED THE DIFFERENCE BETWEEN THE SALE PRICE O F SHARES AND ITS BOOK VALUE AS CONSIDERATION TOWARDS NON- COMPETE FEES. ADMITTEDLY IN THE SHARE PURCHASE AGREEMENT NO CONSIDERATION WAS ASSIGNED TOWARDS NON - COMPETE FEES AND THE PARTIES HAD ENTERED INTO THE S HARE PURCHASE AGREEMENT AFTER MUTUALLY SETTLING THE PRIC E OF SHARES. THE A.O. HAS PRIMARILY RELIED ON ARTICLE 11 .1 OF THE SHARE PURCHASE AGREEMENT TO INFER THAT ASSESSEE HAD PAID AMOUNT TOWARDS NON-COMPETE FEES. ARTICLE 11.1 READS AS UNDER:- 'IN CONSIDERATION OF THE PURCHASE PRICE RECEIVED BY THE SELLERS UNDER THIS AGREEMENT THE SUFFICIENCY OF WH ICH IS HEREBY ACKNOWLEDGED THE SELLERS AGREE THAT FOR A P ERIOD OF 5 YEARS FROM COMPLETION THE SELLERS SHALL NOT B E ENGAGED IN ANY OF THE RESTRICTED BUSINESS IN INDIA. ' THIS CLAUSE CLEARLY SHOWS THAT IN THE PURCHASE PRIC E OF SHARES CONSIDERATION TOWARDS RESTRAINT CLAUSE WAS EMBEDDED. BUT THE SAME WAS NOT SPECIFICALLY MENTION ED IN THE SHARE PURCHASE AGREEMENT AS RIGHTLY POINTED BY THE LD. COUNSEL FOR THE ASSESSEE NON-COMPETE FEES COULD BE PAYABLE PRIMARILY WITH RESPECT TO MANUFACTURING COMPANY VIZ. BALASARA HOME PRODUCTS. AS REGARDS OTH ER TWO IPR COMPANIES VIZ. BALASARA HYGIENE PRODUCTS AN D BESTA COSMETICS SINCE VALUE OF IPR WAS NOT REFLECT ED IN THE BALANCE SHEET WHICH CONSTITUTED MAJOR PART OF THE SHARE PRICE THE SAME HAD TO BE DETERMINED BEFORE ARRIVING AT THE TRUE BOOK VALUE OF SHARE OF THESE T WO COMPANIES. THE A.O. HAS COMPUTED APPROXIMATELY 80% OF THE CONSIDERATION TOWARDS NON-COMPETE FEES WHICH I N ANY CASE IS NOT IN CONFORMITY WITH THE SETTLED PRI NCIPLES OF VALUATION OF SHARES. THEREFORE WE ARE OF THE OP INION THAT THE BASIS ADOPTED FOR ASSIGNING CONSIDERATION TOWARDS NON-COMPETE FEES WAS NOT CORRECT. NOW THE QUESTION WOULD BE HOW TO ASSIGN THE CONSIDERATION TOWARDS NON-COMPETE FEES. WE REALLY DO NOT NEED TO ENTER THIS AREA PARTICULARLY BECAUSE THE DIFFERENCE BETW EEN THE SALE PRICE OF SHARE AND THE TRUE BOOK VALUE OF THE SHARE IF ALLOCATED TOWARDS NON-COMPETE FEES WAS TO BE COMPU TED U/S.55(2)(A). THIS WOULD BE CLEAR FROM SUBSEQUENT DISCUSSIONS. ADMITTEDLY ASSESSEE ON HER OWN WAS NO T CARRYING ON BUSINESS AND IT WAS THE COMPANY IN WHIC H ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 8 OF 15 SHE WAS SHARE HOLDER WAS CARRYING ON THE BUSINESS. SECTION 55 2(A) READS AS UNDER:- ' SECTION 55(2)(A ) ' (A) IN RELATION TO A CAPITAL ASSET BEING GOODWIL L OF A BUSINESS [OR A TRADE MARK OR BRAND NAME ASSOCIATED WITH A BUSINESS] [OR A RIGHT TO MANUFACTURE PRODUCE OR PROCESS ANY ARTICLE OR THING] [OR RIGHT TO CARRY ON ANY BUS INESS] TENANCY RIGHTS STAGE CARRIAGE PERMITS OR LOOK HOUR S -' THUS IT IS EVIDENT THAT WHERE CAPITAL ASSET IS IN THE NATURE OF RIGHT TO CARRY ON BUSINESS THEN THE SAME WILL COME WITHIN THE AMBIT OF CAPITAL GAIN TAX. SECTION 28 (VA) READS AS UNDER:- SECTION 28 (VA) 'ANY SUM WHETHER RECEIVED OR RECEIVABLE IN CASH O R KIND UNDER AN AGREEMENT FOR (A) NOT CARRYING OUT ANY A CTIVITY IN RELATION TO ANY BUSINESS; OR (B) NOT SHARING ANY KNOW- HOW PATENT COPY RIGHT TRADE-MARK LICENSE FRANC HISE OR ANY OTHER BUSINESS OR COMMERCIAL RIGHT OF SIMILAR N ATURE OR INFORMATION OR TECHNIQUE LIKELY TO ASSIST IN THE MANUFACTURE OR PROCESSING OF GOODS OR PROVISION FOR SERVICES. PROVIDED THAT SUB-CLAUSE (A) SHALL NOT AP PLY TO - (I) ANY SUM WHETHER RECEIVED OR RECEIVABLE IN CAS H OR KIND ON ACCOUNT OF TRANSFER OF THE RIGHT TO MANUFA CTURE PRODUCE OR PROCESS ANY ARTICLE OR THING OR RIGHT TO CARRY ON ANY BUSINESS WHICH IS CHARGEABLE UNDER THE HEAD 'CAPITAL GAINS' THUS SECTION 28 (VA) WOULD BE ATT RACTED WHERE THE ASSESSEE WAS CARRYING ON BUSINESS AND NOT WHERE ASSESSEE ONLY HAD RIGHT TO CARRY ON BUSINESS IN THE FORM OF CAPITAL ASSET. FURTHER AS PER CIRCULAR NO. 763 DATED 18/2/1998 BY FINANCE ACT 1997 THE AMENDMENTS WERE MADE IN SECTION 55(2)(A) OF THE ACT TO BRING EXTINGUISHMENT OF RIGHT TO MANUFACTURE PRODUCE OR PROCESS ANY ARTICLE OR THING OR RIGHT TO CARRY ON A NY BUSINESS WITHIN THE AMBIT OF CAPITAL GAIN TAX. SIMI LARLY CIRCULAR NO.8 OF 2002 DATED 27/8/2002 EXPLAINING TH E PROVISIONS OF FINANCE ACT 2002 BY WHICH CLAUSE (VA ) WAS INSERTED IN SECTION 28 OF THE ACT CLARIFIES THAT R ECEIPTS FOR TRANSFER OF RIGHTS TO MANUFACTURE PRODUCE OR PROCES S ANY ARTICLE OR THING OR RIGHT TO CARRY ON ANY BUSINESS WHICH ARE CHARGEABLE TO TAX UNDER THE HEAD CAPITAL GAIN W OULD NOT BE TAXABLE AS PROFITS AND GAINS OF BUSINESS. TH US THE ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 9 OF 15 DIFFERENCE BETWEEN THE SALE CONSIDERATION AND TRUE VALUE OF SHARES WAS CHARGEABLE AS CAPITAL GAINS. 5. RESPECTFULLY FOLLOWING THE ESTEEMED VIEWS OF THE COORDINATE BENCH WITH WHICH WE ARE IN RESPECTFUL AGREEMENT WE HOLD THAT THE AMOUNTS HELD TO BE ATTRIBUTABLE TO NON COMPETE OBLIGATIONS ARE TAXABLE AS CAPITAL GAINS AND NOT AS BUSINESS INCOME. TO THIS E XTENT WE HOLD THAT THE ORDER OF THE CIT(A) IS INDEED VITI ATED IN LAW AND TO THAT EXTENT THAT GRIEVANCE OF THE ASS ESSEE MUST BE UPHELD. THERE IS NO DISPUTE THAT THE ASSESS EE HAS ALREADY INCLUDED ENTIRE CONSIDERATION FOR SALE OF SHARES INCLUDING WHAT COULD BE ATTRIBUTED TO NON COMPETE OBLIGATIONS AS CAPITAL GAINS. IN THIS VIEW OF THE MATTER THE EXERCISE OF BIFURCATION BETWEEN CONSIDE RATION ATTRIBUTABLE TO SALE OF SHARES AND FOR NON COMPETE OBLIGATIONS IS RENDERED ACADEMIC AND INFRUCTUOUS. W E MAY ALSO ADD THAT IT IS NOT EVEN IN DISPUTE THAT TH E ASSESSEE BEFORE US WAS NOT ACTIVELY ENGAGED IN THE BUSINESS AND SO FAR AS THE ASSESSEE ACTIVELY ENGAGE D IN THE BUSINESS IS CONCERNED IT HAS BEEN STATED AT TH E BAR THAT INCOME ATTRIBUTABLE TO NON COMPETE OBLIGATIONS HAS BEEN OFFERED TO TAX AS BUSINESS INCOME BUT THEN G IVEN THE UNCONTROVERTED POSITION THAT THE ASSESSEE WAS N OT ACTIVELY ENGAGED IN BUSINESS IT IS NOT REALLY NECE SSARY TO EXAMINE THAT ASPECT OF THE MATTER ANY FURTHER. THE STAND OF THE ASSESSEE IN TREATING ENTIRE CONSIDERATION R ECEIVED ON SALE OF SHARES AS TAXABLE UNDER THE HEAD CAPITA L GAINS MUST THEREFORE BE UPHELD. 6. FOR THE DETAILED REASONS SET OUT ABOVE AND RESPECTFULLY FOLLOWING THE COORDINATE BENCH IN HOMI APSI BALSARAS CASE (SUPRA) WE HOLD THAT THE ENTIRE CONSIDERATION HAS BEEN RIGHTLY OFFERED TO TAX UNDER THE HEAD CAPITAL GAINS. THE PARTIAL RELIEF GRANTED BY T HE CIT(A) BY REDUCING THE QUANTUM OF AMOUNT ATTRIBUTA BLE TO NON COMPETE OBLIGATIONS IS THUS RENDERED ACADEMIC AND INFRUCTUOUS. THE GRIEVANCE AND THE STAND OF THE ASS ESSEE ON THE OTHER HAND IS UPHELD. 9. THE LEARNED DEPARTMENTAL REPRESENTATIVE IN THE C OURSE OF THE ARGUMENT RELIED ON THE DECISION OF COORDINATE BENCH IN THE CASE OF NAYAN C. SHAH VS. DCIT 14 TAXMANN.COM 155 (MUM). IN THAT THE FACTS ARE: ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 10 OF 15 THE ASSESSEE HAD PROMOTED A COMPANY CALLED PARAMOUNT HEALTH CARE MANAGEMENT COMPANY PVT. LTD. (PHMC) FOR THE PURPOSE OF PROVIDING THIRD PARTY ADMINISTRATION AND MANAGED CARE SERVICE. A GERMAN COMPANY NAMELY MR WAS INTERESTED IN BECOMING A SHAREHOLDER OF THE SAID COMPANY. FOR THIS PURPOSE A MEMORANDUM OF UNDERSTANDING (MOU) WAS ENTERED INTO BETWEEN THE ASSESSEE AND MR. UNDER THE MOU IT WA S INTER ALIA AGREED THAT PHMC . WILL INCREASE ITS SHARE CAPITAL BY ISSUE OF FURTHER SHARES AND MR WOULD SUBSCRIBE TO 500000 NO. OF SHARES BEING 33.33 PER C ENT OF SHAREHOLDING IN THE PHMC. AS MR HAD ACQUIRED 33.33 PER CENT OF SHARES IN THE PHMC AND HAD THE OPTION TO GO UPTO 51 PER CENT THEY INSISTED THAT AS SESSEE SHOULD GIVE UP RIGHT TO CARRY ON SUCH BUSINESS AS M AY BE CARRIED ON BY PHMC. ACCORDINGLY THE ASSESSEE ENT ERED INTO A NON-COMPETE AGREEMENT WITH MR. IN TERMS OF SAID AGREEMENT THE ASSESSEE RECEIVED AN AMOUNT OF ` 43 14 775/-. THE SAID PAYMENT WAS MADE TO ASSESSEE FOR AGREEING NOT TO CARRY ON THE BUSINESS IN COMPET ITION WITH INDIAN COMPANY INTO WHICH MR HAD INVESTED. T HE ASSESSEE CLAIMED THAT SAID AMOUNT WAS A CAPITAL RECEIPT. THE ASSESSEES CASE WAS THAT THE PAYMENT W AS FOR NOT CARRYING ON ANY BUSINESS AND HENCE PROVISIO NS OF SECTION 28(VA) WOULD NOT BE APPLICABLE IN VIEW OF THE PROVISO UNDER THAT SECTION. THE ASSESSING OFFICER D ID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE AND BROUGHT TO TAX THE ENTIRE AMOUNT AS BUSINESS PROFITS UNDER SEC TION 28(VA). ON APPEAL THE COMMISSIONER (APPEALS) ALSO HELD THAT THE PAYMENT FELL UNDER SECTION 28(VA) AND CONF IRMED THE ACTION OF THE ASSESSING OFFICER IN TREATING TH E ENTIRE RECEIPT AS BUSINESS PROFITS. IT WAS HELD THAT: ON READING OF THE NON-COMPETE AGREEMENT GIVES THE IMPRESSION THAT MR AND THE ASSESSEE HAD AGREED UP ON TWO TYPES OF PAYMENTS (I) US$1.25 MILLION ON THE FI RST YEAR FOR THE ASSESSEE NOT TO UNDERTAKE VARIOUS ACTI VITIES PROVIDED IN CLAUSE 1 OF THE NON COMPETE AGREEMENT. AND (II) A FURTHER COMPENSATION TO THE ASSESSEE WHO IS ALSO THE MANAGING DIRECTOR OF THE JOINT VENTURE COMPANIE S BASED ON THE BUSINESS RESULTS OF THE COMPANY TO BE COMPUTED ON THE BASIS OF THE FORMULA GIVEN IN THE N ON- COMPETE AGREEMENT WHICH IS BASED ON THE PERFORMANC E AND PROFITABILITY FOR A PERIOD OF 5 YEARS. THUS THE ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 11 OF 15 PAYMENT MADE DURING THE YEAR CAN BE CONSIDERED ONLY AS PAYMENT MADE FOR THE SERVICES RENDERED BY THE ASSESSEE TO THE NON-RESIDENT TRANSFEREE BASED ON T HE PERFORMANCE/PROFITABILITY. THUS THE PAYMENT HAS BEE N RIGHTLY ASSESSED AS REVENUE RECEIPT. EVEN IF THE EN TIRE AGREEMENT IS CONSIDERED AS A SINGLE ONE AND THE PAYMENT IS PART OF THE NON COMPETE FEE PAID THE IS SUE HAS TO BE CONSIDERED IN THE CONTEXT OF SECTION 28(V )(A) INTRODUCED W.E.F. 1.4.2003. THE COMPENSATION ACCRUE S AND IS RECEIVABLE ONLY UNDER THE YEAR IN APPEAL. THEREFORE THE TAXABILITY OF THE AMOUNT IS CONSIDER ED AS PER THE PROVISIONS OF LAW PREVAILING FOR THIS YEAR. HENCE THE RECEIPT SHOULD BE ANALYZED IN THE CONTEXT OF SE CTION 28(VA). SECTION 28(VA) DEEMS THAT PAYMENT FOR CERT AIN RESTRICTIVE COVENANTS WOULD BE IN THE NATURE OF BUS INESS INCOME/REVENUE RECEIPT. THE EXCEPTION TO THIS WOULD BE ANY AMOUNT RECEIVED ON ACCOUNT OF TRANSFER OF THE R IGHT TO MANUFACTURE PRODUCE OR PROCESS ANY ARTICLE OR T HING OR RIGHT TO CARRY ON ANY BUSINESS WHICH IS CHARGEAB LE UNDER THE HEAD CAPITAL GAINS. IN THE PRESENT CASE THE ASSESSEE HAS AGREED NOT TO DO ANY BUSINESS IN COMPETITION WITH MR. AT THE SAME TIME HE HAS CONTINUED TO DO BUSINESS WHICH HE WAS CARRYI NG ON EARLIER FOR THE FOREIGN COMPANY. THE ASSESSEE A RGUED THAT PROFESSIONAL ACTIVITIES OF RADIOLOGY AND IMAGI NG HAS BEEN GIVEN UP IN VIEW OF NON COMPETE AGREEMENT AND THAT SHOULD BE CONSIDERED AS GIVING UP HIS RIGHT TO CARRY ON ANY BUSINESS. BUT IT IS A FACT THAT EVEN AFTER T HE NON- COMPETE AGREEMENT THE ASSESSEE IS CONTINUING WITH T HE SAME ACTIVITIES FOR GERMAN COMPANY. THEREFORE WHET HER THE RESTRICTIVE COVENANT AGREED TO BY THE ASSESSEE WOULD AMOUNT TO TRANSFER OF RIGHT TO CARRY ON ANY BUSINES S IS TO BE SEEN. THE FIRST ASPECT IS THAT THE ASSESSEE HAS NOT TRANS FERRED ANY RIGHT TO DO BUSINESS. IT IS ONLY SELF IMPOSED RESTRICTION UPON HIMSELF NOT TO ENTER INTO BUSINESS IN COMPETITION WITH THE NON-RESIDENT. THE AMRITSAR TRI BUNAL IN THE CASE OF DY. CIT VS. MAX INDIA LTD (2007) 112 TTJ 726 HAS HELD THAT WHEN THE ASSESSEE SIGNED THE NEGATIVE COVENANT NOT TO CARRY ON MANUFACTURE OR TR ADE IN PRODUCE FOR CERTAIN PERIOD OF TIME IT AMOUNTED NOT ONLY TO SELF IMPOSED RESTRICTION AND NOT A TRANSFER. THE RI GHT TO MANUFACTURE OR TRADE REMAINED INTACT AFTER THE PERI OD FOR WHICH NEGATIVE COVENANTS WERE SIGNED. EVEN THOUGH T HE ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 12 OF 15 TRIBUNAL IN THAT CASE HELD IN FAVOUR OF THE ASSESSE E AS IT RELATED TO THE YEAR PRIOR TO 2003-04 THE RATIO THA T MERE RESTRICTION NOT TO CARRY OUT MANUFACTURE OR TRADE I N COMPETITION WOULD NOT AMOUNT TO TRANSFER OF RIGHT T O CARRY ON ANY BUSINESS WOULD BE APPLICABLE TO THE INSTANT CASE. IN THE CIRCUMSTANCES IT CANNOT BE SAID THAT THE AS SESSEE HAD TRANSFERRED COMPLETELY ITS RIGHT TO CARRY ON AN Y BUSINESS; IN FACT THE ASSESSEE HAD CONTINUED TO DO HIS ACTIVITY IN THE SAME LINE EVEN AFTER ENTERING INTO THIS NON- COMPETE AGREEMENT. AGREEMENT NOT TO COMPETE WITH TH E THIRD PARTY IN THE BUSINESS WILL NOT ENCOMPASS TOTA LITY OF RIGHT TO CARRY ON ANY BUSINESS. THE RIGHT TO CARRY ON ANY BUSINESS IS LARGER IN SCOPE AND RANGE AND AGREEMENT NOT TO COMPLETE WITH THE BUSINESS OF A PARTICULAR PERSO N IS ONLY PART OF ITS RIGHT. THE AGREEMENT NOT TO COMPET E WITH THE PARTICULAR PERSON IN HIS BUSINESS DOES NOT PREV ENT THE ASSESSEE FROM CARRYING ON THE SAME BUSINESS IN A MANNER WHICH WILL NOT COMPETE WITH THE BUSINESS OF THAT PERSON. THEREFORE IT IS OPINED THAT THE AGREEMENT NOT TO COMPETE WITH THE BUSINESS OF THE PERSON WOULD NOT AMOUNT TO RESTRICTION OF CARRYING ON ANY BUSINESS A ND MUCH LESS CONSTITUTE A TRANSFER OF RIGHT TO CARRY O N ANY BUSINESS. THEREFORE WHEN THE ASSESSEE ENTERED INTO AN AGREEM ENT NOT TO CARRY ON ANY BUSINESS IN COMPETITION WITH TH E TRANSFEREE THE CONSIDERATION FOR THE NEGATIVE COVE NANT OF NON-COMPETITION WILL FALL WITHIN THE SUB-CLAUSE (2) OF SECTION 28(VA) I.E. SUM RECEIVED FOR NOT ARRIVING ON ANY ACTIVITIES IN RELATION TO ANY BUSINESS AND CANNOT F ALL WITHIN THE EXCLUSION CONTEMPLATED IN THE PROVISO VI Z. NOT TRANSFER OF RIGHT TO CARRYING ON ANY BUSINESS. THUS IT IS HELD THAT THE PAYMENT RESTRICTION FOR NOT TO COMPET E GERMAN COMPANY CAN BE CLASSIFIED ONLY AS AGREEMENT NOT TRANSFER OF A RIGHT TO CARRY ON ANY ACTIVITIES IN R ELATION TO ANY BUSINESS AND WILL NOT FALL UNDER TRANSFER OF RI GHT TO CARRY ON BUSINESS. ALTHOUGH THE IMPUGNED PAYMENT MADE TO THE ASSESSEE IS TO BE CONSIDERED AS A PART OF THE NON-COMPETE AGREE MENT IT CANNOT BE CONSIDERED AS PAYMENT MADE TO THE ASSE SSEE FOR TRANSFER OF THE RIGHT TO CARRY ON ANY BUSINESS DURING THE YEAR. IT CANNOT BE AGREED THAT THIS PAYMENT MAD E AFTER FIVE YEARS ON THE BASIS OF THE PERFORMANCE A ND PROFITABILITY OF THE COMPANY FOR THE PAST FIVE YEAR S IS ALSO ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 13 OF 15 PART OF THE COMPENSATION FOR THE ASSESSEE FOR REFRA INING FROM CARRYING ON ANY BUSINESS. IT IS IN THE NATURE OF SHARE OF PROFITS EARNED BY THE JOINT VENTURE IN EXCESS OF THE ESTIMATED PROFITS. THAT IS WHY THE PAYMENT IS MADE AFTER 5 YEARS TAKING INTO ACCOUNT PERFORMANCE OF THE COMP ANY FOR ALL THE 5 YEARS. THEREFORE THE AMOUNT OF ` 43 14 775/- RECEIVED BY THE ASSESSEE DURING THE YEAR CAN BE CONSIDERED EITHER AS COMPENSATION FOR THE ASSESSEE AGREEING NOT TO CARRY OUT ANY ACTIVITY IN RELATION TO ANY BUSINESS (ATTRACTIN G CLAUSE (A) OF SECTION 28(VA) OR THE PAYMENT IS FOR THE SER VICES RENDERED BY THE ASSESSEE FOR THE NON-RESIDENT COMPU TED ON THE BASIS OF THE PROFITABILITY OF THE VENTURE FO R THE 5 YEARS. EITHER WAY IT IS REVENUE RECEIPT IN THE HAN DS OF THE ASSESSEE. IN THIS VIEW OF THE MATTER IT IS HELD TH AT THE AMOUNT RECEIVED BY THE ASSESSEE HAS BEEN PROPERLY ASSESSED AS REVENUE RECEIPT IN THE HANDS OF THE ASSESSEE. 10. AS CAN BE SEEN FROM THE ABOVE THE FACTS IN THE CASE MORE RELATE TO NITIN MANDHANA CASE ( MANAGING DIRECTOR A ND ONE OF THE SHARE HOLDER) THE CASE IN WHICH THE ASSESSEE OFFER ED THE AMOUNT AS BUSINESS INCOME ACCORDINGLY. SINCE THE FACTS IN THE ASSESSEES CASE ARE ENTIRELY DIFFERENT THE PRINCIPLES LAID DOWN BY THE ABOVE COORDINATE BENCH DOES NOT APPLY TO THE PRESENT CASE . 11. FURTHER IN THE CASE OF RAMESH D. TAINWALA VS. I NCOME TAX OFFICER 15 TAXMANN.COM 181 (MUM.) THE FACTS ARE AS UNDER. THE ASSESSEE WAS ONE OF THE PROMOTERS OF TP LTD AND TOGETHER WITH OTHER PROMOTERS HELD SUBSTANTIAL SHAR ES IN THE COMPANY. BY AN AGREEMENT I LTD (ACQUIRER) AGR EED TO PURCHASE SHAREHOLDING OF THE ASSESSEE ALONG WITH OTHER PROMOTERS OF TP LTD. THE ACQUIRER WITH A VI EW TO ENSURE THAT THE PROMOTERS AFTER SALE OF THE SHARES DID NOT INDULGE IN COMPETING BUSINESS ENTERED INTO A NO N- COMPETE AGREEMENT WHEREBY THE ASSESSEE WAS PAID ` 2 CRORES FOR AGREEING NOT TO CARRY ON OR BE ENGAGED CONCERNED OR INTEREST IN ANY COMPETING BUSINESS FOR A PERIOD OF 11 YEARS. THE SUM OF 2 CRORES WAS NOT OFF ERED TO TAX BY THE ASSESSEE IN THE RETURN OF INCOME FILE D FOR ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 14 OF 15 THE RELEVANT ASSESSMENT YEAR. LATER ON THE ASSESSE E FILED A LETTER IN WHICH HE CLAIMED THAT SUM OF ` 2 CRORES BEING COMPENSATION FOR AGREEING NOT TO ENGAGE IN TH E BUSINESS IN WHICH THE ASSESSEE HAD SOLE EXPERTISE A ND KNOWLEDGE WAS COMPENSATION RECEIVED FOR GIVING UP A SOURCE OF INCOME WHICH WAS A CAPITAL RECEIPT AND NO T INCOME CHARGEABLE TO TAX. THE ASSESSING OFFICER HEL D THAT THE RECEIPT IN QUESTION WAS A FEE RECEIVED FOR NOT CARRYING OUT ANY ACTIVITY IN RELATION TO ANY BUSINE SS AND THEREFORE CHARGEABLE TO TAX UNDER SECTION 28(VA). ON APPEAL THE COMMISSIONER (APPEALS) CONFIRMED THE VI EW OF THE ASSESSING OFFICER. IN THE INSTANT APPEAL TH E ASSESSEE CONTENDED THAT SUM RECEIVED IN CASH ON ACCOUNT OF TRANSFER OF RIGHT TO CARRY ON ANY BUSINE SS WOULD BE CHARGEABLE UNDER THE HEAD CAPITAL GAINS. IT WAS HELD AS SEEN FROM THE ABOVE FACTS THERE WAS A SEPARATE SHARE PURCHASE AGREEMENT AS WELL AS NON-COMPETE AGREEMENT FOR WHICH AN AMOUNT OF ` 2 CRORES WAS PAID THE AMOUNT OF WHICH WAS NOT OFFERE D TO TAX BY ASSESSEE. ON THE SET OF FACTS IT WAS HELD T HAT THE AMOUNT WAS TAXABLE AS BUSINESS INCOME. 12. IN THIS CASE THE ASSESSEE WAS ONLY SHARE H OLDER IN THE COMPANY IN WHICH THE ENTIRE GROUP WAS HAVING 50% SH ARE HOLDING AND UPON ACQUIRING THE 50% SHARE THERE ARE SALE CO VENANTS TOWARDS NON-COMPETE. CONSIDERING THE ABOVE FACTS W HILE APPRECIATING THE EFFORTS MADE BY THE DEPARTMENTAL R EPRESENTATIVE IN TRYING TO DISTINGUISH WE ARE UNABLE TO DIFFER FROM THE FINDINGS OF THE COORDINATE BENCH IN THE OTHER SHAREHOLDERS CASES. RESPECTFULLY FOLLOWING THE DECISION OF COORDINATE BENCH IN OTHER SHARE HOLDERS CASE WITH WHICH WE AGREE WE HOLD THAT THE ASSESSEE S CONTENTIONS ARE TO BE UPHELD AND ACCORDINGLY THE ASSESSING OFFI CER IS DIRECTED TO TREAT THE ENTIRE AMOUNT AS SALE CONSIDERATION FOR S ALE OF SHARES AND NO AMOUNT BE ASSIGNED TO NON-COMPETE AND TO ASSESS UNDER THE HEAD CAPITAL GAINS ONLY. 13. SINCE THE ASSESSEES GROUNDS ARE ALLOWED TH E REVENUE GROUNDS IN REDUCING THE AMOUNT FROM ` 205/- TO ` 41/- AS WAS DONE ITA NOS.3881 3905 3906 & 3877 OF 2010 GOVINDLAL MANDHANA MUMBAI PAGE 15 OF 15 BY THE CIT (A) BECOMES INFRUCTUOUS AND ACADEMIC IN NATURE AND THEREFORE THE REVENUE GROUNDS ARE DISMISSED. 14. IN THE RESULT THE ASSESSEES APPEALS ARE ALLOWE D AND REVENUE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH FEBRUARY 2012. SD/- SD/- (V.DURGA RAO) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED 15 TH FEBRUARY 2012. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR G BENCH ITAT MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES MUMBAI