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Commissioner Of Central Tax, Bengaluru ... vs Shri Aprameya Radhakrishna on 30 January, 2024 cites

Assistant Commissioner Of Income Tax vs Asea Brown Boveri Ltd. on 5 April, 2007

12. Learned Counsel also drew our attention to the communication made by the Appellant on 29.09.2016 to the investigating agency regarding Non-taxable/Non-compete agreement and submitted that the Appellants had entered into share purchase agreement for sale of shares. Different Schedules including Schedule for Non-compete is a part and parcel of the share purchase agreement. Moreover, Department has selectively proceeded against the Appellants only and no proceedings were initiated against other shareholders, who had entered into such sale and transfer of share of 'TFS'. As regards the issue related to tenability of non-compete clause, the Learned Counsel relied on the decision of Hon'ble High Court of Mumbai in the matter of Assistant Commissioner of Income Tax Vs. Asea Brown Boveri Ltd., reported in 2007 (110) TTJ (Mum) 502. Thus, there is no such separate services intended to be received and no consideration assigned for the indemnity clause as alleged by the Respondent to demand service tax.
Income Tax Appellate Tribunal - Mumbai Cites 174 - Cited by 13 - Full Document

Ishikawajma-Harima Heavy Industries ... vs Director Of Income Tax, Mumbai on 4 January, 2007

20. The Adjudication authority in the impugned order categorically admits that "From the facts it is seen that M/s SILP entered into a Business Transfer Agreement (BTA) dated 02.03.2015 with Ola' for transfer of personal holding of the shares". The Adjudicating authority further observed that; as per the BTA, M/s SILP were to transfer all the specified employees (most of the employees); all the customers of the company; and the existing hardware/infrastructure. Apart from that M/s SILP were also to fulfil the major conditions and obligations like (1) Seller Operation Warranties (2) Promoter Warranties (3) Performance Guarantee for two years (4) Non-Compete and Non-Solicitation Restrictions by the company, etc. From the above finding of the adjudication authority, it is an admitted fact that the business transfer carried out by the Appellant is related to an ongoing concern and as per the Mega Exemption vide Notification No. 25/2012-Service Tax dated 20.06.2012 "Service by way of transfer of a going concern is fully exempted from all of the service tax leviable thereon. From the evidences on record, no finding can be made that substantial portion of the agreement refers to the conditions/obligations to be followed by M/s SILP like non-compete clauses, performance guarantee for two years etc., since they have not received any consideration as held by the Adjudicating authority. Even on merit, terms and conditions in the agreement entered by M/s SILP and 'Ola' are general in nature and Page 19 of 21 Service Tax Appeal Nos. 20227 & 20263/2020, 20976/2019 considering the indemnity clause, there is no consideration involved in the present agreement to quantify the service element in the above said agreement. As held by Hon'ble Apex Court in the matter of M/s Ishikawajma Harima Heavy Industries (supra), in construing a contract, the terms and conditions thereof are to be read as a whole. A contract must be construed keeping in view the intention of the parties. No doubt, the applicability of the tax laws would depend upon the nature of the contract, but the same should not be construed keeping in view the taxing provisions.
Supreme Court of India Cites 50 - Cited by 83 - S B Sinha - Full Document

Vodafone International Holdings B.V vs Union Of India & Anr on 20 January, 2012

Ishikawajma Harima Heavy Industries Ltd Vs. Director of Income Tax, Mumbai (2007 (3) SCC 481) iv. Reliance Industries Ltd Vs. State of Uttar Pradesh (2012 (194) ECR 293 (Allahabad) v. Super Poly Fabriks Ltd Vs. Commissioner of Central Excise, Punjab (2008 (217) CTR (SC) 107) vi. Vodafone International Holdings Vs Union of India (2012 (1) JT SC 410)
Supreme Court of India Cites 92 - Cited by 350 - S H Kapadia - Full Document
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