2014 (5) TMI 817 - AT - Income Tax

Tribunal allows appeal, deems sales promotion expenses genuine, necessary for business.

M/s Seshsayi Foods Pvt. Ltd. Versus Dy. Commissioner of Income-tax

The Tribunal allowed the appeal of the assessee, holding that the sales promotion expenses incurred were genuine, necessary, and wholly and exclusively ... Disallowance u/s 37 of the Act - Sale promotion expenses – Held that:- The assessee has not paid any royalty for availing services of BAIL for promotion of its products and the BAIL being pioneers in Pasta, Macroni and other instant food products` in India and they have rendered services to assessee in marketing assessee’s product - BAIL is in the business since 25 years and comparison of assessee to BAIL is not at all feasible – The lower authorities have not brought any record to establish the falsity of the assessee's claim with regard to the services rendered by the marketing agents in question - the matter has to be looked from businessman's point of view and in the absence of any material brought on record, it is not fair and proper to allege diversion of funds by the assessee or question the engagement of marketing agents by the assessee on grounds of commercial expediency - Payment of sales promotion expenses by the assessee to BAIL cannot be doubted and it is to be allowed in toto – the order of the CIT(A) is set aside and the AO is directed to set aside the disallowance made on account of sales promotion expenses paid by the assessee to BAIL – Decided in favour of Assessee. Issues Involved:1. Disallowance of sales promotion expenses.2. Applicability of Section 37 of the IT Act.3. Relationship between the assessee and Bambino Agro Industries Ltd. (BAIL).4. Business necessity and commercial expediency of the incurred expenses.5. Comparison of sales promotion expenses between the assessee and BAIL.Detailed Analysis:1. Disallowance of Sales Promotion Expenses:The primary issue revolves around the disallowance of Rs. 3,32,77,529/- claimed by the assessee as sales promotion expenses. The assessee argued that these expenses were incurred wholly and exclusively for business purposes, as required under Section 37 of the IT Act. The CIT(A) upheld the AO's disallowance, reasoning that BAIL, as the selling agent, was responsible for promoting the products and was already compensated through commission. Therefore, additional sales promotion expenses should not be borne by the assessee.2. Applicability of Section 37 of the IT Act:The assessee contended that the sales promotion expenses should be deductible under Section 37 of the IT Act as they were incurred wholly and exclusively for business purposes. The AO and CIT(A) acknowledged the genuineness of the expenditure but argued that it was not incurred exclusively for the assessee's business. The Tribunal, however, emphasized that the expenditure should be viewed from the perspective of a businessman, not from the tax authorities' viewpoint, citing legal precedents like CIT Vs. Walchand & Co. Pvt. Ltd. and SA Builders Vs. CIT.3. Relationship Between the Assessee and BAIL:The assessee had an agreement with BAIL, which acted as its selling agent and promoted its products. The CIT(A) noted that BAIL was already mandated to promote the assessee's products under the agreement and received a commission for this task. Hence, additional sales promotion expenses were deemed illogical. The Tribunal, however, found that the agreement did not restrict the assessee from incurring additional expenses and that the expenses were genuine and reflected in the books of accounts.4. Business Necessity and Commercial Expediency of the Incurred Expenses:The assessee argued that it utilized BAIL's extensive marketing network to achieve significant turnover and that the sales promotion expenses had a clear nexus with the turnover. The Tribunal supported this view, stating that incurring such expenses is a business decision and should not be questioned if the expenses are genuine and necessary for business purposes. The Tribunal referenced the case of M/s Liquors India Ltd., where similar expenses were allowed as deductions.5. Comparison of Sales Promotion Expenses Between the Assessee and BAIL:The CIT(A) observed a significant disparity in the sales promotion expenses ratio between the assessee (10.01%) and BAIL (2.13%). This difference was used to justify the disallowance. The Tribunal, however, dismissed this comparison, noting that BAIL, being a pioneer in the market, did not require as much expenditure on sales promotion as the assessee. The Tribunal found the CIT(A)'s inference incorrect and emphasized that the expenses were necessary for the assessee's business growth.Conclusion:The Tribunal concluded that the sales promotion expenses incurred by the assessee were genuine, necessary, and wholly and exclusively for business purposes. The Tribunal set aside the CIT(A)'s order and directed the AO to delete the disallowance of Rs. 3,32,77,529/-. The appeal of the assessee was allowed in full.