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JUDGMENT S. Ravindra Bhat, J. - The Revenue is in appeal aggrieved by the order dated September 20, 2013, of the Income-tax Appellate Tribunal (ITAT) whereby the assessee's appeal was allowed. 2. The assessee had in respect of the assessment year 1999-2000 in the note filed together with the accounts and the returns disclosed that he received a sum of Rs. 88 lakhs as one-time non-compete fee. He concededly paid advance tax of Rs. 27,60,600 on the same. He states that this was a one-time capital receipt ; the return was processed under section 143(1). The Revenue sought to reopen the assessment recording reasons for doing so as follows by its notice dated January 9, 2002 : "The income-tax return for the assessment year 1999-2000 was filed on 29th July, 1999, claiming a refund of Rs. 26,74,420. The assessee was the promoter of Overseas Cargo Service P. Ltd. and had entered into as asset transfer agreement with M/s. Bax Global India Pvt. Ltd. for transfer of assets of OCS to BAX. As agreed under the ATA, the assessee had entered into a non-competition agreement with BAX. Under the terms of NCA, the assessee had undertaken not to engage directly or indirectly, either alone or in association with any person or persons in any activity, which will be in competition with the current business of BAX and for observing the restrictions specified in NCA, a consideration amounting to Rs. 88 lakhs was payable to the assessee by BAX. The assessee had paid advance tax of Rs. 27,60,000 on the abovementioned amount of Rs. 88 lakhs and is now claiming refund of Rs. 30,74,254 on the contention that as it is capital receipt, it should not be chargeable to tax. However, the income of the assessee of Rs. 88 lakhs received by him should be chargeable to tax as it is not a capital receipt but is to be charged to income-tax under the head 'Profits and gains of business or profession'. In terms of section 28 of the Income-tax Act, 1961, section 28 is reproduced hereunder to bring the assessee in net of this provision. '(ii) any compensation or other payment due to or received by' ; (a) any person by whatever name called managing the whole or substantially the whole of the affairs of an…

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