2004 (4) TMI 14 - HC - Income Tax

Court ruling: Industrial company classification denied, publicity expenses allowed under Income-tax Act

Farichem Laboratories Pvt. Ltd. Versus Commissioner of Income-Tax.

The High Court ruled in favor of the Revenue and against the assessee regarding the classification of the assessee as an industrial company. The Court ... AO rejected the claim of the assessee for being treated as an 'industrial company' for the reason that the assessee had no manufacturing activity of its own. The assessee's pharmaceutical products were manufactured by M/s. Martin and Harris (P) Ltd., and the same were marketed through M/s. Walter Sushnell (P) Ltd. - Tribunal held that the assessee-company is not directly engaged in the manufacture of pharmaceutical goods. – Thus, Tribunal was justified in law in coming to its conclusion that the Commissioner of Income-tax (Appeals) erred in holding that the assessee was an industrial company within the meaning of section 2(8)(c) – However, Tribunal was not justified in holding that the printing, publication and distribution of pharmaceutical concerns does amount to publicizing the products and promote the sales - Tribunal was not right in holding that the AO rightly considered the expenditure incurred on account of printing of literature and disallowed the same u/s 37(3A) Issues involved:1. Classification of the assessee as an industrial company.2. Disallowance of expenditure related to publicity under section 37(3A) of the Income-tax Act, 1961.Issue 1: Classification of the assessee as an industrial company:The case involved a reference under section 256(1) of the Income-tax Act, 1961, regarding the classification of the assessee as an industrial company. The questions referred by the Income-tax Appellate Tribunal (ITAT) for adjudication included whether the assessee could be treated as an industrial company, based on its manufacturing activities through another entity. The Tribunal held that the assessee was not directly engaged in manufacturing pharmaceutical products, as they were manufactured by a separate company. The Tribunal emphasized that to qualify as an industrial company, the entity must be engaged in the manufacture or processing of goods either personally or under its supervisory control. The judgment cited various precedents to support the requirement that a manufacturer need not possess manufacturing facilities but must be involved in the manufacturing process. Ultimately, based on the evidence presented, the Tribunal concluded that the assessee did not meet the criteria to be classified as an industrial company under the relevant provisions.Issue 2: Disallowance of expenditure related to publicity under section 37(3A):The second aspect of the case involved the disallowance of certain expenditure incurred by the assessee for publicity purposes under section 37(3A) of the Income-tax Act, 1961. The Assessing Officer disallowed the expenditure related to the printing and distribution of pharmaceutical literature, considering it as publicity expenses. However, the Commissioner of Income-tax (Appeals) reversed this decision, stating that the expenditure was not for advertisement purposes. The Income-tax Appellate Tribunal (ITAT) overturned the Commissioner's decision and upheld the disallowance of the expenditure. The assessee argued that the expenditure was for distributing medical literature to professionals and, therefore, did not fall under the purview of section 37(3A). The argument was supported by a precedent that clarified the scope of disallowance under the said section. Relying on this precedent, the High Court held that the expenditure in question could not be disallowed under section 37(3A) based on the facts and circumstances of the case.In conclusion, the High Court answered the reference questions as follows:- Questions regarding the classification of the assessee as an industrial company were answered in favor of the Revenue and against the assessee.- Questions related to the disallowance of expenditure for publicity purposes were answered in favor of the assessee and against the Revenue. The reference was disposed of without any order as to costs.