CIT Vs. Savita N. Mandhana (ITAT Mumbai)- There is no dispute that the assessee 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 consideration attributable to sale of shares and for non compete obligations is rendered academic and infructuous.
We may also add that it is not even in dispute that the assessee before us was not actively engaged in the business and so far as the assessee actively engaged in the business is concerned, it has been stated at the bar that income attributable to non compete obligations has been offered to tax as business income, but then, given the uncontroverted position that the assessee was not actively engaged in business, it is not really necessary to examine that aspect of the matter any further. The stand of the assessee, in treating entire consideration received on sale of shares as taxable under the head ‘capital gains’ must therefore be upheld.For the detailed reasons set out above, and respectfully following the coordinate bench in Homi Apsi Balsara’s case (supra), we hold that the entire consideration has been rightly offered to tax under the head capital gains. The partial relief granted by the CIT(A), by reducing the quantum of amount attributable to non compete obligations, is thus rendered academic and infructuous. The grievance and the stand of the assessee, on the other hand, is upheld. In the result, while appeal of the assessee is allowed in the terms indicated above, appeal of the revenue is dismissed as infructuous.
