Non-compete fees paid to key employees at the time of joining is in the nature of “salary income”: Karnataka High Court

Non-compete fees paid to key employees at the time of joining is in the nature of “salary income”: Karnataka High Court

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Non-compete fees paid to key employees at the time of joining is in the nature of “salary income”: Karnataka High Court



CS Deepak P. Singh




Karnataka HC rules that non-compete fees paid to key  employees at the time of joining is in the nature of “salary income”.
In the case of Sasken Communication Technologies Ltd(Taxpayer), the issue before the HC was.
  1. whether non compete fees paid to two key-employee rendering services outside India, i.e., in the US, would be regarded as taxable in  India and;
  2. whether there was an obligation on the Taxpayer to withhold the taxes thereon.
The Taxpayer, an Indian  company, has its subsidiary company in the US (US Co).
The US Co merged with the Taxpayer and subsequently, the Taxpayer offered employment to Mr. and Mr. B who were in employment with the US Co as they were in key strategic position of the US Co. Pursuant to this.
The Taxpayer entered into three contracts with these two employees viz.,
  1. employment agreement;
  2. non-disclosure agreement(NDA) and
  3. employee non-compete agreement (NCA).
Employment agreement and NDA were generally entered by the Taxpayer with all of its employees, whereas NCA was entered with only these two employees as they were key employees of the company. The Taxpayer paid non-compete fee to the employees after they became employees of the Taxpayer. The Taxpayer did not deduct tax on non-compete fees as the same was claimed to be salary income not taxable in India pursuant to the India-US Treaty.
However,the Tax Authority contended that since the NCA prohibited employment with other Indian competing companies, the rights and obligations of the parties under the NCA were to
take effect in India, and hence, the non-compete fees arose in India and was liable to withholding tax in India. The Tax Authority also contended that the non-compete fees was in
the nature of business income in the hands of employees in India.
The HC upheld the ruling of the tribunal considering that the facts noted by the tribunal were not perverse and ruled that no taxes were required to be withheld as the income was not taxable in India.
Briefly, the HC approved the following ruling of the tribunal:
  1. The non-compete fees in the hands of the employees was in the nature of salary income as the same was related to employment with the Taxpayer and prohibited the employees from taking up competitive employment upon termination of current employment with the Taxpayer. Further, as employees did not carry out any business in India, the same was not in the nature of business income.
  2. As the employees are residents of the US and are also rendering services in the US, the income is taxable in the US as per Article 16 of the India-US Treaty.
Accordingly, there was no obligation on the taxpayer to withhold taxes.
CONCLUSION: the non-compete fees paid by an employer to his employees for not competing with the company will be treated as salary income of the employees. Since non-compete fees arises from the employment of employees. In above case since employees are worked in US and they are receiving salary in US and hence employer is not liable to withhold tax in India.
DISCLAIMER: the case law produced here is only for information and knowledge of readers. In case of necessity do consult with tax professionals.

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