Tuesday 8 August 2023

Tax treatment of Ex gratia payments

What is Ex gratia payment?

Ex Gratia is a Latin word that means “by virtue of grace” or “by favor”. Therefore, an ex gratia payment is voluntary because the paying party does not need to compensate the receiver. Ex gratia meaning is a payment made out of virtue to individuals by an organization or government for claims and damages.

Ex gratia payment definition has undergone several changes. The general ex gratia payment definition is a type of payment made by an organization, government, etc., to an individual for claims and damages without acknowledging any legal obligations. Generally, ex gratia payments are requested to fulfil such damages that do not come under any insurance policies.

For example, suppose any company is having an awful experience and want to reduce its number of staff. In that case, they must pay legal compensation to the employees before laying them off. If the company pays an additional amount out of their wish, this is termed ex gratia meaning. This additional voluntary payment is ex gratia payment.

Features of Ex gratia payment

§  Ex gratia meaning is that it is out of choice and cannot be forced.

§  Companies provide ex gratia payment to maintain their good public image.

§  Ex gratia meaning is free of any obligation and admission of liability.

§  Ex gratia payments are typically made as a gesture of goodwill or to compensate for some type of loss or hardship.

§  Ex gratia payments are voluntary and not required by law.

§  There is no limit on ex gratia payment amount, which entirely depends on the paying party.

§  Ex gratia payment is never fixed and varies from one organization to another.

Ex gratia payment is different from the Bonus

Ex gratia meaning is different from a bonus’; they are not the same thing. A bonus is paid according to the employees’ performance in the company. According to Bonus Act, employees are eligible for an annual bonus ranging from 8% to 20% of their salary. Ex gratia is the additional payment made by the employer out of their goodwill. Paying the bonus is a liability and cannot be avoided by the company.

Is Ex gratia payment taxable?
Generally, all the payments made by the employer to the employees are subject to taxation in India. These payments come under the employment contract. However, an ex gratia payment is an extra payment made by the employer, and such an amount without any legal obligation is not taxable. In other words, Ex gratia payments are not taxable in India, unless they are made in lieu of salary or wages.

Ex gratia payment in Covid

CBDT prescribes procedure for claiming tax exemption in respect of any sum received as ex-gratia, for treatment of ‘COVID-19’ or consequential death, by Individual/ family members. [Notifications 90/2022, 91/2022 and 92/2022 dated 05.08.2022]

These Notifications were issued in accordance with the requirements of the Finance Act 2022 relating to the tax exemption of any amount of money received by an Individual as reimbursement of actual expenses for COVID-19 treatment of self/ family members. Also, any sum of money received as ex-gratia from an employer by family members of an individual deceased due to COVID-19 has been exempted from tax with retrospective effect from Financial Year 2019-20, subject to a Rs. 10,00,000 limit when the amount is obtained from a source other than the employer. As a result, the CBDT has announced the procedure for seeking tax exemption on reimbursements/ ex-gratia receipts received by individuals/ family members.

Receipt of exgratia amount by the family member of the deceased employee on death of the employee due to COVID-19 from deceased non-relatives [Section 56(2)(x)]

Receipt of exgratia amount (actual medical expenditure is irrelevant here) by the family member of the deceased employee who died due to COVID-19

Full amount received is exempt from tax in the hands of the family member of the employee if-

(a) The amount is received within 12 months from the date of death and,

(b) subject to such conditions as may be prescribed

Receipt of exgratia amount by the family member of the deceased individual on his death due to COVID-19 from

non-relatives [Section 56(2)(x)]

§  Receipt of exgratia amount (actual medical expenditure is irrelevant here) by the family member of the deceased individual who died due to COVID-19

§  Full amount received is exempt from tax subject to maximum of Rs. 10,00,000 in aggregate in the hands of the family member of the individual if-

(a) The amount is received within 12 months from the date of death and,

(b) subject to such conditions as may be prescribed

CBDT Circular F. No. 200/79/2000-IT(A-I), dated 23.01.2001

Subject : Admissibility of Ex gratia amount paid by assessees for gaining enduring benefit or advantage under Voluntary Retirement Scheme (VRS)

It is noticed that a number of assessees have resorted to restructuring of human resources, financial engineering, etc. Invariably, exgratia payments are made in order to encourage such schemes to further long-term advantage to the assessee by way of profitability, competitiveness and also to further induction of technology. Particular mention may be made of the Voluntary Retirement Schemes (VRS) of the banking sector in this connection. The question arises whether the exgratia amount is allowable as revenue expenditure. In this connection, the primary test is to see whether any enduring benefit has resulted to the assessees by making an expenditure. In the event, the expenditure is laid out for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business, it is properly attributable to capital and is of the nature of capital expenditure. If any such asset or advantage for enduring benefit of the business is thus acquired or brought into existence, it would be immaterial whether the source of payment was the capital or the income of the concern or whether payment was made once and for all or was made in instalments. While it is not ordinarily easy to evolve a fool-proof test for ascertaining whether in a given case, expenditure is capital or revenue, the Assessing Officers normally decide the character of expenditure on the facts and circumstances of each case. They consider the nature and the ordinary course of business and the objects for which the expenditure has been laid out. Towards this purpose, the test of enduring benefit is a useful tool in considering the exgratia amount, prima facie, as a capital expenditure. In this view of the matter, the expenditure, as said above, is to be treated as capital expenditure.

CBDT Circular No. 776, , Dated 08.06.1999

Subject : Taxability of ex gratia payment made by Central Government/State Government/Local Authority/Government Public Sector Undertaking to heirs of employee on his death, etc.

Circular No. 573, F. No. 200/115/90-ITA-I, dated 21.08.1990 provided that a lump sum ex gratia payment made, to the widow or other legal heirs of an employee, who dies while still in active service, will not be taxable as income under the Income-tax Act, 1961.

It is noted that there can be situations in which a person or his heir receives ex gratia payment from the Central Government/State Government/Local Authority/Public Sector Undertaking, consequent upon injury to the person/death of a family member, while on duty. Such an ex gratia payment will not be liable to income-tax under the Income-tax Act, 1961.

CBDT Circular No. 385 [F. No. 316/35/81-WT], Dated 03.07.1984

Subject :  Whether properties left in erstwhile east Pakistan after Indo-Pak Conflict of 1965 and relief granted in the form of Exgratia grant and as such asset includible in net wealth

The Board have considered taxation under the Wealth-tax Act of assessees in India in respect of their properties left in erstwhile East Pakistan after Indo-Pak conflict of 1965 and the relief granted to them in respect of such properties in the form of exgratia grant from the Consolidated Fund of India and have decided as under :

The value of the properties left behind in East Pakistan by persons who had migrated to India, and which vested in the Custodian of Enemy Property in Pakistan, cannot be assessed to wealth-tax in India in the hands of such persons.

The ad hoc interim relief granted by the Government of India in the form of exgratia grant from the Consolidated Fund of India cannot be assessed to wealth-tax as there is no legally enforceable claim to such relief.

Assessee had received Rs. 47.21 lakhs from his erstwhile company as ex gratia and a letter had been issued by employer which clearly stated that payment of amount had been made voluntarily to assessee and was not compensation, Assessing Officer without establishing letter as non-genuine could not have invoked provisions of section 17(3)(iii) for making addition

ITAT Pune held that payment made voluntarily by the employer out of appreciation for the employee falls outside the rigours of Section 17(3)(iii) of the Income Tax Act.

Assessee has taken voluntary retirement from Racold Thermo (P) Ltd. Pune during the year under consideration. Thereafter the assessee has started trading business of Industrial consumable supply in the name of M/s. Laxmi Enterprises. Assessee received Rs. 47,21,154/- from the company as Ex-Gratia and from this amount claimed Rs. 5,00,000/- under section 10(10C) VRS compensation/Termination of service and balance remaining amount of Rs. 42,21,154 from Ex-Gratia taken as capital receipt. Assessing Officer taxed amount of Rs. 42,21,154 under section 17(3)(iii) by treating it as additional compensation received by assessee from his employer as profit in lieu of salary under section 17(3)(iii). However, a letter had been issued by employer which clearly stated that payment of amount had been made voluntarily to assessee and was not compensation. This letter had not been doubted by department. No independent inquiry regarding veracity of this letter had been conducted and none of authorities had held this letter issued by employer to assessee as bogus. Without establishing letter as non-genuine or without examining sanctity of payment made, simply invoking provisions of Act for making addition was not appropriate for a quasi-judicial authority. When employer itself stated that payment had been made voluntarily by them out of appreciation for employee, it fell outside rigours of section 17(3)(iii).  Therefore, Assessing Officer was to be directed to delete addition from hands of assessee. [In favour of assessee] (Related Assessment year : 2018-19) – [Mahadev Vasant Dhangekar v. ACIT, NFAC (2023) 149 taxmann.com 170 (ITAT Pune)]

Assessee a retired professional cricketer received ex-gratia payment from BCCI which was claimed as capital receipt not chargeable to tax and Assessing Officer brought said sum to tax under section 56(2)(vii) without ascertaining whether registration of BCCI was restored under section 12AA for relevant assessment year or not, in such a case matter was to be remanded to Assessing Officer

Assessee was a retired professional cricketer who received ex-gratia payment as one-time benefit from BCCI and claimed same as capital receipt not liable to be taxed. Assessing Officer held that said sum would be taxable under section 56(2)(vii) on ground that BCCI did not have registration under section 12AA. He, thus, made additions in income of assessee. Commissioner (Appeal) upheld said additions and further held that said sum was liable to be taxed under section 28(iv). Assessee contended that registration of BCCI under section 12AA was restored by Mumbai Bench of Tribunal for relevant assessment year. Since assessee was paid ex-gratia amount for having played cricket for his country and assessee being a retired cricketer, prima facie, section 28(iv) would not be applicable. Matter was to be remanded back to Assessing Officer to examine whether BCCI was having registration under section 12AA for relevant assessment year and if satisfied said amount would not be taxable under section 56(2)(vii). [Matter remanded] (Related Assessment year : 2013-14) – [Sunil Bandacharya Joshi v. DCIT (2022) 194 ITD 725 : 137 taxmann.com 343 (ITAT Bangalore)]

Supreme Court guidelines for payment of ex gratia of Rs 50,000 to families of those who died due to Covid-19

(i)          Covid-19 cases, for the purpose of considering the deaths of the deceased due to Covid-19, are those which are diagnosed through a positive RT-PCR/Molecular Tests/RAT or clinically determined through investigations in a hospital/in-patient facility by a treating physician, while admitted in the hospital/in-patient facility;

(ii)         that the deaths occurring within 30 days from the date of testing or from the date of being clinically determined as a Covid-19 case shall be treated as “Deaths due to Covid-19”, even if the death takes place outside the hospital/in-patient facility;

(iii)       also, the Covid-19 case while admitted in the hospital/in-patient facility and who continued to be admitted beyond 30 days and died subsequently shall also be treated as a Covid-19 death;

(iv)       Covid-19 cases which are not resolved and have died either in the hospital settings or at home, and where a Medical Certificate of Cause of Death (MCCD) in Form 4 & 4A has been issued to the registering authority, as required under Section 10 of the Registration of Birth & Death (RBD) Act, 1969, shall also be treated as Covid-19 death. However, it is observed and made clear that irrespective of the cause of death mentioned in the death certificate, if a family member satisfies the eligibility criteria mentioned in paragraphs 11(i) to 11(iv) as above shall also be entitled to the ex-gratia payment of Rs. 50,000/- on production of requisite documents as observed hereinabove, and no State shall deny the ex-gratia payment of Rs. 50,000/- on the ground that in the death certificate the cause of death is not mentioned as “Died due to Covid-19”;

(v)         all concerned hospitals where the patient was admitted and given treatment shall provide all the necessary documents of treatment etc. to the family member of the deceased, as and when demanded, and if any hospital and/or the place where the deceased had taken treatment refuses to furnish such documents, it will be open for the Grievance Redressal Committee to call for such information and the concerned hospital/institution where the deceased was admitted shall have to furnish such particulars as required for the purpose of establishing that the death was due to Covid-19;

(vi)       a family member of the deceased who committed suicide within 30 days from being diagnosed as Covid-19 positive shall also be entitled to avail the financial help/ex-gratia assistance of Rs. 50,000/- as granted under the SDRF in accordance with the guidelines dated 11.09.2021 issued by the NDMA under Section 12(iii) of DMA, 2005, as directed hereinabove;

(vii)     if any family member/kin of the deceased died due to Covid0-19 has any grievance with respect to non-receipt of the ex-gratia payment of Rs. 50,000/-, it will be open for the aggrieved claimant to approach the Grievance Redressal Committee constituted as observed hereinabove, and the Grievance Redressal Committee shall examine the contemporaneous medical record of the deceased patient, and take a decision within a period of 30 days from approaching the said Grievance Redressal Committee and as observed hereinabove such Grievance Redressal Committee shall have powers to call for the details/documents from the concerned hospital/hospitals from where the deceased took the treatment;

(viii)    all endeavours shall be made by the District Disaster Management Authority/District Administration and even the Grievance Redressal Committee to avoid any technicalities and all concerned authority shall act as a helping hand, so as to wipe off the tears of those who have suffered due to loss of a family member died due to Covid-19;

(ix)       it is further directed that in cases of the death certifications already issued and any family member of the deceased is aggrieved by the cause of death mentioned in the death certificate already issued, it will be open for the aggrieved person to move the appropriate authority who issued the death certificate and/or registering authority and on production of the necessary documents as observed hereinabove, including production of documents, such as, positive RT-PCR/ Molecular Tests/ RAT OR clinically determined through investigations in a hospital/ in-patient facility by a treating physician, while admitted in the hospital/ in-patient facility, the concerned authority shall modify/amend such death certificates. If the person is still aggrieved, it will be open for the aggrieved person to approach the Grievance Redressal Committee constituted as hereinabove and the concerned registering authority shall ratify/amend the death certificate as directed by the Grievance Redressal Committee.

 

The National Disaster Management Authority (NDMA), Ministry of Health and Family Welfare, Union of India are directed to issue guidelines to the concerned States/Union Territories incorporating the directions issued hereinabove which shall be binding to all the States/Union Territories. – [Gaurav Kumar Bansal v. Union of India and others - Miscellaneous Application No. 1120 of 2021 - Date of Judgement : 04.10.2021 (SC)]

Ex-Gratia Payment to prematurely retiring despite absence of Scheme allowable

Brief facts relating to the issue are that the Assessing Officer was of the view that in the absence of any scheme formulated by the assessee bank, the amount paid as ex-gratia to prematurely retiring employees was not to be allowed as deduction. The case of assessee on the other hand, was that the said payment was made in recognition of long term and meritorious services of the employees. The assessee had claimed the said expenditure as ex-gratia payment as in the nature of profits and in lieu of salary, and on the same, TDS was also deducted. However, the Assessing Officer disallowed the said expenses in view of section 35DDA of the Act and also held that they were not allowed as deduction under section 37(1) of the Act. The CIT(A) allowed the claim of assessee following the order of Tribunal in the case of another bank. Where the assessee in recognition of the services provided to its retiring employees make certain ex- gratia payments in recognition of their services, which are not based on any scheme or instruction formulated by the employer assessee, then the same partakes the nature of profit in lieu of salary. The relationship between the assessee and retiring employees was admittedly as of employer and employee and the remuneration paid to such employees is part of the salary due to the said employee. Even the ex-gratia payment made by the assessee over and above the remuneration due to the employees partakes the character of profits in lieu of salary to such employee and is duly allowable as an expenditure in the hands of the assessee under section 37(1) of the Act. (Related Assessment year : 2013-14) – [DCIT v. Prathamik Shikshak Sahakari Bank Ltd. - Appeal Number : ITA No.1307/PUN/2017 Date of Judgement : 19.08.2019 (ITAT Pune)]

Ex-gratia’ from employer for settling industrial dispute eligible for retrenchment compensation exemption under section 10(10B)

Ahmedabad ITAT adopts pragmatic approach in interpreting ‘public welfare’ provisions, holds that the ex-gratia compensation received by assessee-employee during Assessment year 2008-09 in terms of settlement with the employer amounts to ‘retrenchment compensation’ and is eligible for exemption under section 10(10B) in principle, remands matter back to Assessing Officer for determining the quantum of exemption; Assessee-employee had invoked provisions of Industrial Disputes Act 1947 against his employer for his transfer from Vadodara to Mumbai, and after losing the case before the Industrial Tribunal, the employer agreed to an ‘out-of-court’ settlement under which employee received Rs. 6.5 lakhs as ‘ex-gratia’; Observing High Court order taking a note of the ‘out-of-court’ settlement & modifying Industrial Tribunal order, ITAT rejects Revenue's claim that the amount was a mere ‘ex-gratia’ and rules that amount is in the nature of compensation under the Industrial Disputes Act, 1947; Further rejects Revenue's stand that it was a case of ‘resignation’ and not retrenchment, ITAT refutes ‘hyper-technical interpretation’ of the wordings in the settlement deed and noting the conduct and employee’s surrounding circumstances, holds that employee’s termination falls within the definition of ‘retrenchment’ under Industrial Disputes Act; ITAT, therefore, concludes that the twin conditions for claiming exemption under section 10(10B), viz. (i) compensation must be received under the Industrial Dispute Act 1947, and (ii) it has to be paid at the time of retrenchment, are satisfied. - [Vishnu Mohan T Nair v. ITO [TS-4-ITAT-2018(Ahd)] – Date of Judgement : 02.01.2018 (ITAT Ahmedabad)]

Ex gratia payment made voluntary by an employee is not taxable as “profit in lieu of salary” Assessee was an employee of company ‘G’. He was discharged from service under relevant rule of service Rules after giving three months’ pay. Assessee also received certain amount as ex-gratia compensation on premature cessation of his services. Assessing Officer took a view that compensation so received was to be taxed under section 17(3) as ‘profits in lieu of salary’. Tribunal confirmed order passed by Assessing Officer. Since payment of ex-gratia compensation was voluntary in nature without there being any obligation on part of employer to pay any further amount to assessee in terms of service rules, it would not amount to compensation in terms of section 17(3)(i). Therefore, impugned addition was to be deleted. [In favour of assessee] (Related Assessment year : 1994-95) – [Arunbhai R. Naik v. ITO (2015) 379 ITR 511 : 64 taxmann.com 216 : (2016) 284 CTR 284 : 236 Taxman 190 (Guj.)]

Under sub-clause (i) of section 17(3), in order to characterize a particular payment received from an employer on termination of employment as ‘profit in lieu of salary’, it has necessarily to be shown that said amount is due or received as ‘compensation’ - If payment is made as exgratia or voluntary by an employer out of his own sweet will and is not conditioned by any legal duty or legal obligation, either on sympathetic grounds or otherwise, such payment is not to be treated as ‘profit in lieu of salary’ under sub-clause (i)  

The assessee had received from his employer certain amount in addition to normal benefits at the time of his retirement. Though the employer had deducted the tax at source on that amount, yet the assessee claimed that the said amount was not exigible to tax being an exgratia payment which was outside the scope and ambit of section 17(3). The Assessing Officer, however, noted that the said amount was given to the assessee after discussion between him and his employer as revealed from the letter dated 25.01.2001 of the employer in that behalf and, therefore, the payment was made as 'compensation' for his services and, thus, was liable to tax under section 17(3)(i). The opinion of the Assessing Officer was confirmed by the Commissioner (Appeals). The Tribunal, however, set aside that view and deleted the addition holding that it was not chargeable to tax under section 17(3)(i) as ‘profit in lieu of salary’. On the revenue's appeal:

Held : There is a distinction between sub-clause (i) and sub-clause (iii ) of clause (3) of section 17. Item (B) of sub-clause (iii) enumerates that when any 'amount' is due or is received after cessation of the employment, it is treated as ‘profit in lieu of salary’. The expression used here is ‘amount’. Therefore, when an amount is received by an employee whether due or not, on the cessation of the employment, from the employer, this partakes the character of ‘salary’ and is chargeable to tax. In contradistinction, sub-clause (i) uses the expression ‘compensation’ (rather than ‘amount’). Therefore, under sub-clause (i), in order to characterize a particular payment received from the employer, on termination of the employment, as ‘profit in lieu of salary’, it has necessarily to be shown that this amount is due or is received as 'compensation'.

When the payment is to be received as ‘compensation’, the employee would have a right to receive such a payment. If the employee has no right, it cannot be treated as a ‘compensation’. It is for this reason that if the payment is made as exgratia or voluntary by an employer out of his own sweet will and is not conditioned by any legal duty or legal obligation, whether on sympathetic reasons or otherwise, such payment is not to be treated as 'profit in lieu of salary' under sub-clause (i).

Having regard to this legal position, it had to be decided as to whether the payment received by the assessee on cessation of his employment was a voluntary payment given by the employer or it was in the nature of ‘compensation’.

It has to be in the nature of something awarded to compensate for the loss, suffering or injury. When translated in the context of employment, it would imply monetary and non-monetary amount to be given to the employee in return of some services rendered by him. Inherent in this would be the obligation of the employer to pay some amount to the employee to ‘compensate’ him. This would also mean that the employee gets vested right in him to get such an amount.

In the instant case, all dues admissible to the assessee on his resignation were otherwise paid by the employer to him. Therefore, whatever terminal dues, including earned salary, etc., which were payable to the assessee in terms of contract or otherwise were paid to him. In addition, the employer agreed to pay ‘in its discretion’ certain amount as an ‘exceptionable’ and 'one off exgratia payment'. It was very clearly stated in the letter of the employer that management had agreed to pay that amount in its discretion. It was not compelled by any obligation to pay that amount which would assume the nature of any ‘compensation’. The amount was also described as not only exceptionable but exgratia. It, therefore, clearly partook the character of voluntary payment and could not be termed as a payment by way of ‘compensation’.

In fact, the Legislature wanted such type of payments also to be treated as income at the hands of the employees/persons and to tax them. For that reason, sub-clause (iii) was inserted in section 17(3). This also implies that such a payment was not taxable before this amendment was carried out by inserting sub-clause (iii) with effect from 01.04.2002. Insofar as the assessee was concerned, the receipt of that payment by him would not be covered under sub-clause (i) of clause (3) of section 17. (Related Assessment year : 2001-02) - [CIT v. Deepak Verma (2011) 339 ITR 475 : (2010) 236 CTR 213 : 194 Taxman 265 : 7 taxmann.com 53 (Del.)]

Assessee was granted retirement benefits and was paid a sum of Rs. 22 lakhs by company after two months of his resignation - Assessee treated said amount as exgratia payment, voluntarily paid by employer without being under any obligation to pay same and, hence, claimed this amount as exempt from tax - Assessing Officer rejected assessee’s claim and taxed said amount under section 17(3)(i) - Since said payment had been made just after two months from relinquishment of job, payment was closely associated with employment of assessee and, therefore, Assessing Officer had rightly taxed that payment under section 17(3)(i)

Assessee was working as a sales manager in a company. He had resigned from the company on 1-5-1996. The company granted retire- ment benefits to the assessee and paid a sum of Rs. 22 lakhs to him on 22.07.1996. The assessee treated the said amount as exgratia payment voluntarily paid by the employer, without being under any obligation to pay the same and, hence, claimed that amount as exempt from tax. The Assessing Officer rejected the assessee’s claim and taxed the said amount under section 17(3)(i). On appeal, the Commissioner (Appeals) upheld the impugned order. On second appeal :

Held : The employer of the assessee treated the payment of Rs. 22 lakhs as business expenses and claimed the deduction. Thus, the receipt of Rs. 22 lakhs was straight away associated with the employment of the assessee. Had there not been any relationship between the assessee and the company, as of employer and employee, then the assessee would have not received any such payment. The expression ‘profit in lieu of salary’ as defined in sub-clause (i) of clause (3) of section 17 would take this payment in its embrace, because it includes the amount in compensation due to or received by the assessee from an employer or former employer at or in connection with termination of his employment or the modification of the terms and conditions relating to employment. The assessee had tried to restrict the meaning of ‘profit in lieu of salary’ as relating to compensation only on termination of the service, but the termination referred to in section 17(3)(i) would mean relinquishment of the job, either voluntarily, resignation or on attaining the superannuation. The said payment had been made just after two months from relinquishment of the job. Therefore, it was closely associated with the employment. Therefore, the lower authorities had rightly taxed that amount. Hence, the appeal was to be dismissed. [In favour of revenue] (Related Assessment year : 1997-98) – [Sam Patel v. ITO (2007) 11 SOT 566 (ITAT Mumbai)]

On completion of his contract of service with company, assessee received certain amount as exgratia payment from company on understanding that he would not engage himself directly or indirectly in business activities which were competitive to company and also would not join any service in similar type of trade - Amount received by assessee was not a profit in lieu of salary but capital receipt in lieu of profit earning source and, therefore, was not exigible to tax

The assessee was a technical expert and was appointed as Vice-President (Works) for looking after manufacturing operations of a company. On completion of his contract of services with the company, an exgratia payment was made to him by the company on the understanding that he would not divulge the technology secrets of company to any one nor would use them for setting up a competitive business anywhere in India and also would not join for next 2 years any business activity which was competitive in nature. The Assessing Officer was of the view that the receipt was nothing else but compensation received on account of loss of employment and for not disclosing the trade secrets known to the assessee. He, accordingly, held that the compensation received by the assessee partook of the character of revenue receipt taxable under section 17(3) as profit in lieu of salary. On appeal, the Commissioner (Appeals) treated the said receipt as capital receipt and deleted the addition made by the Assessing Officer. On revenue’s appeal :

Held : In the instant case, from the facts available on record, it was abundantly clear that the assessee received compensation in consideration of his agreement and undertaking not to engage himself, directly or indirectly, in the business activities which were competitive to the company and also not to join any service in the similar type of trade. Thus, the amount received was not a profit in lieu of salary but capital receipt in lieu of profit-earning source. Therefore, the amount received against the restrictive covenant was not exigible to tax. The amount received was neither a remuneration nor reward or return for the services rendered by the assessee but it was to restrain him from joining any employment in a similar business or to establish a similar type of business to avoid competition or conflict with the existing business of company in which the assessee was working as the Head and Vice President of the manufacturing unit and was having access to confidential technology.

The assessee had not received any of the items mentioned in section 17 during his employment. It was only a compensation given to him to restrain him from joining any service of similar nature or doing similar type of business. So, it could not be said that the compensation received by the assessee was profit in lieu of salary.

Therefore, the Commissioner (Appeals) was justified in treating the compensation received by the assessee for acting in accordance with the restrictive covenant of agreement between him and the company, as a capital receipt not chargeable to tax. There was no infirmity in the order of the Commissioner (Appeals) on that issue. In the result, the appeal of the department was to be dismissed. [In favour of assessee] (Related Assessment year : 1996-97) – [ACIT v. Tarun Kumar Ghai (2006) 99 TTJ 1240 (2005) 97 ITD 517 (ITAT Chandigarh)]

Assessee, a qualified chartered accountant, was employed as director (Finance) and served the company in various capacities for 17 years and on his resignation he received Rs. 2 lakhs as exgratia payment in recognition and appreciation of his personal qualities and attributes as acknowledge in the letter of the MD of the company amount received by the assessee was not taxable as compensation as contemplated under section 17(3) as profit in lieu of salary and was a capital receipt in his hands

Assessee, a qualified chartered accountant, was employed as director (Finance) and served the company in various capacities for 17 years. On his resignation he received Rs. 2,00,000 as exgratia payment in recognition and appreciation of his personal qualities and attributes as acknowledge in the letter of the MD of the company. The question was whether such payment was taxable as profit in lieu of salary as held by the Assessing Officer.

Held that the concerned letter had been written by the managing director of the company on the very next day of the registration letter of the assessee. In this letter it had been clearly spelt out that the payment was being made in appreciation of personal qualities and attributes, as special exgratia payment, which had been approved by the management also. It was not only the managing director’s decision but had the approval of the management. so it could not be said that the managing director termed the payment as special ex-gratia payment. This amount was not paid by virtue of the employment but only as a voluntary payment by the management recognising the loyalty and sincerity of the assessee towards the company.

There was no evidence on record for the Commissioner (Appeals) to come to the conclusion that the real motive behind the said payment was to reward the assessee for his past long meritorious service and the basic character of the receipt was not exgratia but profit in lieu of salary. The only reasons for coming to this conclusion by the Commissioner (Appeals) was the treatment accorded to the payment in the books of account of the company.

For determining the true nature of payment it was to be seen (i) whether there was any liability to make the payment, (ii) whether or not the assessee had any legal enforceable right against the company for claiming this payment, and (iii) whether or not the amount had been paid as compensation. The unilateral commitment made by the management without any requirement of the same being accepted by the assessee, as he had already tendered his registration on 06.04.1989, would not make the payment enforceable in law. Thus, the amount received by the assessee in the two assessment years under consideration was not taxable as compensation as contemplated under section 17(3) as profit in lieu of salary and this was a capital receipt in the hands of the assessee. [In favour of assessee] (Related Assessment years : 1990-91 and 1991-92) – [ASPY B. Talati v. ITO (2002) 75 TTJ 106 (ITAT Mumbai)]

Reward Scheme was introduced by CBDT from 01.04.1985 for grant of rewards to officers and staff of Income-tax Department - Scheme postulated reward under four heads which included reward for scrutiny wards under rule 2(b) of Scheme - Scheme provided that reward would be purely an exgratia payment and Competent Committee’s discretion would be final – Respondent - Assessing Officer completed assessment on basis of search and seizure and appraisal report of Intelligence Wing - In reply to Assessing Officer’s claim for reward, Competent Committee found that there was no contribution made by respondent-Assessing Officer and that he was not fit for grant of reward under rule 2(b) of the aforesaid Scheme - Discretion of Committee could not be interfered with by Administrative Tribunal

The Central Board of Direct Taxes announced a Scheme for grant of rewards to officers and staff of the Income-tax Department. The Scheme postulated the grant of reward under four heads as follows : 2(a) Reward for disposal under summary assessment scheme; 2(b) Reward for scrutiny wards; 2(c) Reward for search and seizure work; 2(d) Reward for best officers at Tribunal. The Scheme provided that the Competent Committee would decide the manner in which the reward due would be shared between the eligible officers and staff and that the reward would be purely an exgratia payment and the Competent Committee’s discretion would be final.

In respect of an assessee, a search had been carried out in July, 1982 resulting in seizure of assets and number of incriminating documents. Assistant Director (Investigation) prepared an appraisal report and for-warded the same to the Assessing Officer, the respondent, along with the seized material. Thereafter, the Assessing Officer completed the assess-ment. The total additional income brought to tax after giving effect to the order of the Tribunal was over Rs. 12 lakhs. The Assessing Officer claimed reward under rule 2(b) of the Reward Scheme. The Committee did not find him fit for reward. The Assessing Officer filed an application under section 14 of the Administrative Tribunal Act challenging the denial of the claim. The Tribunal allowed the application of the Assessing Officer. On appeal :

Held : Assessment was made on the basis of the seized material and appraisal report of the Investigation Wing and the Competent Committee, whose discretion was final, was of the opinion that there was no contribution made by the respondent and he was not found fit for grant of reward under rule 2(b) of the 1985 Scheme. Undoubtedly, the case came before the respondent as the Assessing Officer after search and seizure operation and if, on those facts, the Committee decided that the respondent was not entitled to the grant of reward, the discretion of the Committee could not be faulted with. Clearly the Tribunal’s decision was wholly unsustainable.

Even on the question of jurisdiction the matter was outside the purview of the Tribunal. Under section 14, the Tribunal has jurisdiction, power and authority in relation to 'service matters'. Service matters include remuneration (including allowances), pension and other retirement benefits. The reward amount was purely exgratia payment. It was difficult to treat it as a condition of service. Further, it was difficult to comprehend how such exgratia payment could be treated as remuneration of the kind postulated under the Act. For the foregoing reasons, the order of the Tribunal was to be set aside. - [Secretary, Central Board of Direct Taxes v. B. Shyam Sundar (2001) 118 Taxman 457 (SC)]

Assessee, a contractor, had done some extra work which was not in contract - Disputes arose between parties which were referred to arbitrator who awarded payment for additional work and pre-award and post- award interest on amount payable - Assessing Officer assessed entire amount as business income - Amount of interest awarded was not an ex-gratia payment but was attributable and incidental to contract business carried on by assessee and was, therefore, assessable as business income

The assessee, a contractor, had certain dispute with the Government of Orissa for which it had executed a project. It claimed that it had to carry out certain work over and above the items stipulated in the agreement and, therefore, demanded payment therefor, along with interest. The matter was ultimately decided by an arbitrator who gave an award for additional payment along with interest including pendente lite interest for the period from the date of claim to the date of award. The assessee claimed that the interest received was not liable to tax as the same was neither under a statute nor under a contract but was only on an ex-gratia basis. The Assessing Officer rejected the assessee’s claim and brought the interest amount to tax. On appeal, the first appellate authority accepted the assessee’s claim. On the revenue’s appeal, the Tribunal affirmed the order of the first appellate authority. On reference :

Held : In view of the decision of the Supreme Court in CIT v. Govinda Choudhary & Sons (1993) 203 ITR 881 (SC), it was to be held in the instant case that the receipt of pre-award and post-award interest was a revenue receipt attributable and incidental to the business carried on by the assessee and it bore the same character of receipts payment of which it was otherwise entitled to under the contract. The disputed amount of interest was only an accretion to the assessee’s receipts from the contract business. The Tribunal was not legally correct in taking the view that the sum received as interest by the assessee was an ex-gratia payment which was not liable to tax. [In favour of revenue] (Related Assessment year : 1977-78) – [CIT v. Malik Construction Co. (1999) 238 ITR 450 : 106 Taxman 175 (All.)]

Due to ill-health assessee resigned job - His employer paid in token of his long service four months salary as exgratia addition to normal dues - Assessee claimed that said amount was personal gift in appreciation of his personal qualities and, therefore, was not liable to tax - In view excerpts of letter granting exgratia and finding of Tribunal being that amount in question was paid not as a personal gift or testimony but for his past service qua employee, same was taxable under section 17(3)(i)

The amount of compensation due to an assessee-employee as a right under any statute, award or contract of employment or received by him from his employer or former employer at or in connection with the termination of his employment or the modification of the terms and conditions thereof irrespective of his entitlement to receive the same, is now included within the meaning of the expression 'profits in lieu of salary' under sub-clause (i) of clause (3) of section 17. This clause takes in its fold amounts paid by way of compensation in connection with the termination of the employment or the modification of the terms and conditions relating thereto.

in the instant case, having regard to the contents of the said letter of the employer and facts of the case, the amount in question had not been paid by way of compensation for there had been neither termination of the employment nor any modification of the terms and conditions of the employment by the employer; so the amount could not properly be brought to tax under clause (i). Clause (ii) takes in its fold any payment, other than those expected therein, which is due or received by an assessee from an employer or a former employer or from a provident or other fund to the extent to which it does not consist of contributions by the assessee or interest on such contributions. This does not cover payment of amount from approved superannuation fund. The clause 'any payment received by an assessee from an employer or a former employer' is wide enough to catch all the payments of the nature paid to the assessee. But then will any sum paid by the employer/former employer to the employee at or after the termination of services on the occasion of the marriage of the employee or for an act of gallantry or for any piece of literature, art or any sum paid for good performance in a cricket test or football match, fall within the ambit of that clause? The answer to such questions would depend upon whether the amount was paid by the employer or the former employer to the employee qua employee for something done as employee or in his capacity other than that of an employee as a personal gift for appreciation of his quality of intrepidity, writing, sportsmanship and the like. In the former situation it would be taxable but in the latter it would not be taxable.

The finding recorded by the Tribunal was that it had not been shown that the amount was given because of any other relationship, past or otherwise, as between the employer and employee. The excerpt of the letter accepting the resignation showed that from the point of employee the amount was received by him in token of his long service, exgratia as four months extra salary in addition to normal dues. This suggested that the amount was paid to the assessee not as personal gift or testimony but for his past services as an employee and supported the finding recorded by the Tribunal.

It was difficult to conclude that the amount was paid as a personal gift in appreciation of personal qualities of the assessee. Therefore, the amount would be taxable and had been rightly held to be so by the Tribunal. [In favour of revenue] (Related Assessment year : 1982-83) – [V.R. Ganti v. CIT (1995) 216 ITR 48 : 127 CTR 273 : 82 Taxman 37 (AP)]

Assessee tea company made exgratia payments to employees in addition to statutory bonus - Payments were made in terms of agreement for maintenance of industrial peace and for maintaining production in pursuance of memoranda of settlement between assessee and its employees on one hand and between industry and workmen of tea industry on other - Such payments were in nature of additional wages and allowable as business expenditure

Assessee-company was a grower and manufacturer of tea. In the assessment years 1981-82 and 1984-85 the ITO disallowed the amount of Rs. 51,778 claimed by the assessee as exgratia payment which was in addition to payment of bonus at the rate of 8.33 per cent, by treating the amount as bonus. On appeal, the Commissioner (Appeals) deleted the said addition. On appeal by the revenue, the Tribunal held that the memoranda of settlement with the employees/workmen provided for payment of exgratia, only and "what was paid was not bonus and that section 34 of the Payment of Bonus Act, 1965, was not applicable to the said memoranda. The Tribunal further held that the said exgratia payments were allowable under section 37. On reference:

Held : On a consideration of the terms and conditions of the settlement, it was evident that, for the purpose of maintenance of industrial peace and maintaining production, the said memoranda of settlement had been arrived at. The first one between the assessee and its employees and the second one between the industry and the workmen of the tea industry. The payment which had been agreed to be made was in addition to the statutory bonus and not in the nature of profit-sharing bonus. Mere use of the expression ‘bonus’ will not render it a bonus if it is otherwise clear that what is paid is not bonus but incentive wages. The Payment of Bonus Act does not prevent the payment of additional wages to the employees.

On the facts and in the circumstances of the case and on an interpretation of the agreements in question, the Tribunal came to a correct conclusion that in this case the payment was not made by way of bonus. The employer had to make such payments exgratia or otherwise in view of the settlement made either by the employer or because of the settlement by and between the industry as a whole and the workmen of the industry. The employer could not but fulfil the commitment in terms of such settlement. Under the terms and conditions of the settlement the bonus had been provided separately. Thus, the additional payment partook of the character of additional wages or emoluments and these were in fact exgratia and not bonus as it was understood. Such payment was to be allowed as deduction under section 37. Hence, the Tribunal’s order was to be upheld. [In favour of the assessee] (Related Assessment years :  1981-82 and 1984-85) – [CIT v. Rahimia Lands & Tea Co. (P) Ltd. (1992) 197 ITR 310 : (1993) 69 Taxman 300 (Cal.)

Assessee-firm executed a contract and subsequently a dispute arose in respect of payment, which was referred to arbitrator - Arbitrator awarded certain amount along with certain amount on account of interest - Amount of interest so awarded was in nature of exgratia payment not assessable as income in hands of assessee

Assessee-firm had executed some contract and subsequently at the instance of the parties the dispute arising out of the aforesaid contract relating to the payment, was referred to the arbitration in which an award on certain amount was made along with certain amount towards interest. The ITO treated the interest amount as awarded by the arbitrator as income of the assessee: On appeal, the Commissioner (Appeals) deleted addition. On second appeal by the revenue, the Tribunal upheld the order of the Commissioner (Appeals). On reference:

It has been held by this Court in Govinda Choudhury & Sons v. CIT (1977) 109 ITR 497, that award by an arbitrator relating to interest is in the nature of exgratia payment and, therefore, cannot be treated as income exigible to tax. We take the same view in the present case and hold that in view of the law prevailing at the relevant time payment of interest could not have been taken as income and, therefore, we answer the question referred to us in favour of the assessee and against the department. – [CIT v. B.P.R. Construction (1991) 191 ITR 492 : (1992) 102 ITR 280 : 60 Taxman 40 (Orissa)]

On termination of service of assessee, payment of ex-gratia amount made by employer was totally voluntary and was not compensation which implied some sort of obligation to pay - Therefore, ex-gratia amount received by employee was not profits in lieu of salary within meaning of section 17(3) and, as such, was not taxable as income  

Assessee’s services were terminated and he was paid three month’s salary in lieu of notice. He was also paid certain amount as exgratia. The assessee claimed exemption in respect of exgratia amount on the ground that it was a capital receipt. The ITO, however, held that the amount in question was compensation received in connection with the termination of the employment and was, therefore, assessable as salary in terms of section 17(3) (i). On second appeal the Tribunal held that the amount of ex-gratia payment was not includible in total income of the assessee. On reference:

Held : This Court in the case of CIT v. Ajit K. Bose (1987) 165 ITR 90 (Cal.) held that the payment made by the employer was exgratia and totally voluntary and was not compensation which implied some sort of obligation to pay. Therefore, the amount received by the employee was not profits in lieu of salary within the meaning of section 17(3) of the Act and, as such, was not taxable as income. The facts being identical, the said decree governed instant case also. In view of aforesaid, the Tribunal was right in holding that the amount of ex-gratia payment was not includible in the total income of the assessee. [In favour of the assessee] (Related Assessment year : 1970-71) – [CIT v. Jamini Mohan Kar (1989) 176 ITR 127 (Cal.)]

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