2018 (4) TMI 1749 - AT - Income Tax

Tribunal allows business expenses, directs verification of tax credit and interest calculation.

M/s. Bayer Pharmaceuticals Private Versus DCIT – Range-4 (1) Mumbai

The Tribunal decided in favor of the assessee, allowing the advertisement and publicity expenses as business expenditure. The disallowed expenses of Rs. ... Disallowance of advertisement and publicity expenses - Allowable revenue expenditure u/s 37(1) - AO observed that it had gifted freebies to the medical practitioners - HELD THAT:- Physicians samples are necessary to ascertain the efficacy of medicine and introduce it in the market for circulation and it is only by this method the purpose is achieved. In such cases giving a physician samples for reasonable period is essential to the business of manufacture and sale of medicine. It is only if a particular medicine has been introduced by the market and its uses are established then giving of free samples could only be the measure of sale/ promotion and development would thus be hit by subsection (3A). Said decision no way prohibits the nature of expenditure which has been incurred in the case of the assessee. Therefore, such a reference to a Hon’ble Apex Court decision is not germane to the issue involved. Thus, in our opinion, the aforesaid decision of this Tribunal PHL PHARMA P LTD. [2017 (1) TMI 771 - ITAT MUMBAI] is clearly distinguishable and cannot be held to be applicable and also we have already given our independent finding as to allowability of expenses in the hands of the assessee as business expenditure. Issues Involved:1. Disallowance of advertisement and publicity expenses.2. Disallowance of expenses of Rs. 5.66 lakhs.3. Non-granting of credit for self-assessment tax of Rs. 3.30 lakhs.4. Calculation of interest levied under section 234B of the Income Tax Act.Issue-wise Detailed Analysis:1. Disallowance of Advertisement and Publicity Expenses:The primary issue was the disallowance of Rs. 1.01 crores incurred by the assessee on advertisement and publicity. The Assessing Officer (AO) found these expenses to be in the nature of freebies given to healthcare professionals, which are prohibited by the Government of India as per Circular No. 5/2012 and the Medical Council of India (MCI) guidelines. The AO allowed expenses incurred towards employees but disallowed the rest, amounting to Rs. 1,01,46,962/-.The First Appellate Authority (FAA) upheld the AO's decision, stating that the expenses were in the nature of entertainment expenditure and not allowable under section 37(1) of the Income Tax Act. The FAA also referred to the MCI notification dated 10/12/2009, which prohibited such incentives/gifts/freebies to medical practitioners.During the hearing before the Tribunal, the Authorized Representative (AR) argued that the expenses were for promotional items like pens, calendars, and note pads with the company's logo, which should be considered as advertisement expenses. The AR contended that the MCI guidelines were not applicable to pharmaceutical companies and that the CBDT Circular 5/2012 could not be applied retrospectively.The Tribunal referred to the judgment of the Hon'ble Delhi High Court in the case of Max Hospital Pitampura vs. Medical Council of India, which clarified that the MCI regulations were applicable only to medical practitioners and not to pharmaceutical companies. The Tribunal also cited the case of PHL Pharma P Ltd., wherein it was held that the MCI guidelines and the CBDT Circular could not be applied to pharmaceutical companies.The Tribunal concluded that the CBDT Circular could not apply retrospectively and that the expenses incurred by the assessee were for business promotion and not freebies. The Tribunal decided in favor of the assessee, allowing the expenses as business expenditure.2. Disallowance of Expenses of Rs. 5.66 Lakhs:This issue was an alternate ground of appeal. Since the Tribunal had already decided in favor of the assessee regarding the disallowance of advertisement and publicity expenses, this ground was treated as infructuous and not adjudicated.3. Non-Granting of Credit for Self-Assessment Tax of Rs. 3.30 Lakhs:The assessee claimed that it was not granted credit for self-assessment tax amounting to Rs. 3.30 lakhs for the year under consideration. The Tribunal directed the AO to verify the claim and allow the credit if found correct. This ground of appeal was partly allowed.4. Calculation of Interest Levied under Section 234B:The assessee raised an issue regarding the calculation of interest levied under section 234B of the Income Tax Act. The Tribunal directed the AO to verify the claim and provide the assessee with a reasonable opportunity of hearing. This ground was also partly allowed.Conclusion:The appeal filed by the assessee was partly allowed, with the Tribunal deciding in favor of the assessee on the primary issue of disallowance of advertisement and publicity expenses and directing the AO to verify and allow the claims related to self-assessment tax credit and interest calculation under section 234B.