2025 (10) TMI 940 - AT - Income Tax

Marketing support to related US AE held business-expedient and deductible under s.37; directors' pay retained; s.35(2AB) R&D relief from 29/06/2015 &D

ITAT (Delhi - AT) allowed the appeal, holding that marketing support payments to an AE (US-based) totalling Rs. 4,38,72,325 were business-expedient and ... Disallowance of Marketing Support Expenses an Associate Enterprise (‘AE’)/foreign entity - as alleged assessee could not prove the business expediency and justification of such expenditure paid to its AE without any positive and beneficial result, as sales to USA had gone down - Counsel contended that the AO had not properly appreciated the marketing support expenditure, which had no direct nexus with the sales as it boosted the overall growth of business in long term - HELD THAT:- Commercial production of any auto-component from the date of designing/approval of the product was time consuming process and it took a year or two. As submitted correctly that since the assessee was engaged in producing auto parts of Ford General Motors, Volkswagen, Maruti, etc. etc. as Original Equipment Manufacturer; therefore, it entered into an agreement with its AE to make the assessee a global player by enhancing its technical strength and marketing support, for which it had made payment of Rs. 4,38,72,325/-. The said payment was made to Anand NVH Products Inc. (US-based company), which looked after the various requirements of customers of North America. Due to the support of the AE, the assessee got the business from Ford. The marketing expenses required a particular product to be approved by the customer, and thereafter manufacturing commenced as per orders placed by customers. This process was a time consuming process; therefore, marketing support charges were linked with the future prospects of the assessee as evident from sales of subsequent years. There is no infirmity in the finding of the Ld. CIT(A) that the ‘marketing support expenditure’ is justified and thus, the same is allowable expenditure under section 37. Disallowance of Directors’ remuneration - excessiveness and unreasonableness of Directors’ remuneration, decline in turnover of the assesse - HELD THAT:- As correctly contended that remuneration paid to directors had never been disallowed in preceding and subsequent years. Hence, the same could not be disallowed during the year on the reasoning of unreasonableness and excessiveness as directors’ remuneration has no direct nexus with the turnover of the company. There is no infirmity in the finding of the Ld. CIT(A) that the ‘marketing support expenditure’ is justified and thus, the same is allowable expenditure under section 37. Disallowance of R & D expenditure - expenditure incurred after the issuance of certificate under section 35(2AB) of the Act by the Ministry of Service & Technology, Govt. of India w.e.f. 29/06/2015 was allowable and not of the entire FY. - HELD THAT:- This issue is squarely covered by the decisions in the cases of Maruti Suzuki[2017 (8) TMI 248 - DELHI HIGH COURT], Claris Lifesciences Ltd.[2008 (8) TMI 579 - GUJARAT HIGH COURT] and thus, hold that there is no infirmity in the finding of the Ld. CIT(A) that the R & D expenditure is allowable under section 35(2AB). Appeal of assessee allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether marketing support expenses paid to a foreign associate enterprise are allowable as business expenditure under section 37(1) where the agreement is not on company letterhead or stamp paper and where immediate sales did not increase but subsequent years showed growth. 2. Whether remuneration paid to directors is allowable as business expenditure under section 37(1) when remuneration increased despite a contemporaneous decline in turnover and profit, and whether consistency in treatment in preceding/subsequent years bars disallowance. 3. Whether in-house R&D expenditure incurred prior to the date of certificate issued by DSIR (section 35(2AB)) is eligible for weighted deduction for the entire previous year when recognition/approval is granted during that previous year. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Allowability of marketing support expenses paid to foreign associate (section 37(1)) Legal framework: Section 37(1) is a residuary provision allowing business expenses which are not covered by specific sections, are revenue in nature, incurred wholly and exclusively for business, and not of a personal nature. The assessing officer may test business expediency and reasonableness. Precedent treatment: The Tribunal and High Courts have held that formalities such as being on letterhead or stamp paper are not determinative if the substance and commercial reality are established; judicial authorities cited by the Tribunal (including decisions addressing business expediency and reasonableness) were relied upon by the appellant and accepted by the CIT(A). Interpretation and reasoning: The Tribunal accepted the CIT(A)'s factual findings that (a) the assessee incurred payments to a US marketing/technical support office to secure OEM business in NAFTA markets, (b) the nature of the expenditure is marketing/support (distinct from sales promotion) with a multi-year life-cycle (5-7 years) and delayed commercialisation, (c) documentary evidence (service agreement, audited balance sheets of the AE, invoices, TDS records) was placed on record, and (d) transfer pricing scrutiny (TPO) benchmarked the transactions at arm's length. The Tribunal noted the AO did not dispute the statutory conditions under section 37 except for business expediency, and found the subsequent growth in export sales and specific program wins (post the expenditure) supported the commercial rationale. The Tribunal therefore treated the AO's objection as insufficiently supported by evidence to negate business expediency. Ratio vs. Obiter: Ratio - where documentary evidence establishes the commercial purpose, multi-year marketing expenditure to an associate enterprise that yields demonstrable future economic benefits is allowable under section 37(1); lack of specific formalities (letterhead/stamp paper) is not fatal where substance is proved. Obiter - observations on the distinction between sales promotion and marketing support as a general commercial proposition. Conclusion: Marketing support expenses of Rs. 4,38,72,325 were held allowable under section 37(1); the Tribunal declined to interfere with the CIT(A)'s deletion of the disallowance. Issue 2 - Allowability of directors' remuneration (reasonableness, consistency principle; section 37(1)) Legal framework: Remuneration paid to directors is deductible if incurred wholly and exclusively for business; reasonableness and bona fides may be tested. The consistency doctrine (preceding acceptance of similar payments) and the absence of evasion are relevant considerations. Judicially established tests include assessing whether payments are a cloak for profit distribution or tax avoidance. Precedent treatment: The Tribunal relied on Supreme Court and High Court authority emphasizing the rule of consistency (preceding acceptance of similar remuneration should ordinarily preclude later disallowance) and decisions recognizing that remuneration may be reasonable even if not directly correlated with turnover/profit. Case law cited includes authorities holding that remuneration taxed in the hands of recipients at maximum rates undermines a finding of tax-evasion motive. Interpretation and reasoning: The Tribunal accepted that (a) remuneration was authorised by board resolutions, (b) directors declared income and were taxed at maximum marginal rates (no evasion), (c) similar remuneration had been allowed in prior and subsequent years (invoking consistency), and (d) turnover/profit alone cannot determine reasonableness because remuneration is an indirect expense and other variables affect profits. The AO's reliance on declining turnover as sole basis for declaring remuneration excessive was held insufficient. The Tribunal found the CIT(A)'s deletion of the disallowance legally tenable. Ratio vs. Obiter: Ratio - disallowance of directors' remuneration cannot be sustained solely on the basis of decline in turnover where board approval exists, remuneration has been consistently accepted in other years, and there is no evidence of tax-evasion or sham; reasonableness must be assessed on totality of evidence. Obiter - comments on variables affecting turnover and their irrelevance as sole determinative factor. Conclusion: Directors' remuneration of Rs. 4,69,84,889 was allowable under section 37(1); the Tribunal upheld the CIT(A)'s deletion of the disallowance. Issue 3 - Allowability of R&D expenditure under section 35(2AB) where DSIR certificate issued during the previous year Legal framework: Section 35(2AB) provides weighted deduction for in-house scientific research expenditure where the research facility is recognized by the prescribed authority (DSIR). The temporal question is whether recognition granted during the previous year entitles the assessee to claim the weighted deduction for expenditure incurred throughout that previous year. Precedent treatment: The Tribunal relied on jurisdictional High Court decisions which held that what matters is the existence of recognition/approval during the previous year; the wording of section 35(2AB) does not limit the benefit to expenditure incurred after the date of certificate. Those High Court decisions (Maruti Udyog Ltd.; Claris Lifesciences Ltd.) were held squarely applicable. Interpretation and reasoning: The Tribunal agreed with the CIT(A) that the AO's approach-restricting deduction to expenditure incurred after the specific date mentioned in the certificate-improperly read words into the statute. The Tribunal followed the High Court rulings that recognition's existence during the previous year entitles the assessee to weighted deduction for the entire expenditure in that year, as statutory language does not condition the deduction on the date of approval within that year. Ratio vs. Obiter: Ratio - where DSIR recognition exists at any time during the relevant previous year, the assessee is entitled to weighted deduction under section 35(2AB) for the entire expenditure of that previous year; restricting the benefit to amounts incurred after the certificate date is incorrect. Obiter - none material beyond following binding High Court precedent. Conclusion: R&D expenditure of Rs. 78,73,302 was allowable under section 35(2AB); the Tribunal upheld the CIT(A)'s deletion of the disallowance in line with High Court decisions. Interrelationship and final disposition Cross-reference: Issues 1 and 2 both concern allowability under section 37(1) but involve distinct tests - commercial expediency and evidentiary proof for payments to an associate enterprise (Issue 1) versus reasonableness and consistency for directors' remuneration (Issue 2). Issue 3 is governed by specific statutory provision and binding High Court precedent, not by the residuary test in section 37(1). Final conclusion: The Tribunal found no infirmity in the CIT(A)'s deletions and declined to interfere; all three challenged disallowances were held allowable on the grounds and legal bases set out above.