TaxTMI 
TaxTMI 
2018 (8) TMI 754
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.... the case, the learned Pr.C.I.T. erred in setting aside the assessment order dated 26th December, 2016 and directing the Assessing Officer to pass a fresh assessment order." 3. The assessee, as per grounds of appeal, essentially challenges the foundation of jurisdiction assumed by the Pr.CIT under s.263 of the Act and contends that the subject assessment order framed under s. 143(3) of the Act passed by the AO cannot be termed as erroneous and prejudicial to the interest of the Revenue which is a condition precedent for usurption of revisional jurisdiction. 4. The relevant facts in brief are that the return of the assessee was subjected to scrutiny assessment for AY 2014-15 and the assessment was completed by the AO under s. 143(3) of the Act vide order dated 26.12.2016 whereby the total income of the assessee was assessed at Rs. 715.01 Crores as against the returned income of Rs. 584.13 Crores. Thereafter, the Pr.CIT in exercise of his revisionary power, issued show cause notice dated 18.08.2017 under s.263 of the Act requiring the assessee to show cause as to why assessment so framed u/s.143(3) is not liable to be set aside or modified. It was alleged by the Pr.CIT that the ex....
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....erroneous and prejudicial to the interest of revenue iii) You have debited a total expenses of Rs. 137,41 crores on account of R & D expenses on which a weighted deduction has been claimed. The A.O. has not enquired as to whether separate expenses have been incurred by you on account of quality control & regulatory approvals or whether they have been grouped Into R & D expenses. Non application of mind in this matter by the A.O. has rendered the impugned order as erroneous and prejudicial to the interest of revenue. You have claimed an expenditure of Rs. 475,32 lakhs on account of patent expenses/patent related expenses outside India as eligible for weighted tax u/s.35 (2AB) of the I.T. Act, The explanation inserted under clause 1D to Sec.35(2AB) stated that; Explanation - for the purposed of this clause, "Expenditure on scientific research", in relation to drugs and pharmaceuticals, shall include expenditure incurred on clinical drug trial, obtaining approval from any regulatory authority under any Central, State or Provincial Act and filing an application for a patent under the Patents Act, 1970 (39 of 1970). Thus, the expenditure incurred in relation to patents not r....
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....timated that the aforesaid amount included Rs. 24.32 crores on gift items exceeding Rs. 1000 each. The learned Pr. CIT alleged that the Assessing Officer did not make inquiry regarding the persons to whom gifts were given and the record maintained for the same. (ii) The assessee has shown turnover of Rs. 52126.83 lacs from Baddi unit yielding profit of Rs. 12296.55 lacs and the Assessing Officer failed to apply his mind to this issue and to make meaningful inquiry regarding the manufacturing process, and goods being manufactured. The learned Pr. CIT has alleged that similar is the position with regard to Sikkim unit. (iv) The assessee has debited expenditure of Rs. 137.41 crores for R & D expenses on which weighted deduction has been claimed. He has observed that the Assessing Officer has not inquired as to whether separate expenses have been incurred on account of quality control and regulatory approvals or whether these expenses are grouped under R & D expenses. The learned Pr. CIT assumed that there was non-application of mind on the part of the Assessing Officer on this issue. (iv) The assessee has claimed Clinical Research expenditure of Rs. 1214.01 lacs and the Asses....
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.... been allegedly incurred on gifts items distributed to various persons. Out of this Rs. 55.14 Cr., you have incurred on expenditure of Rs. 24.32 Cr. on gift items exceeding Rs. 1,000/- each. On perusal of the records, it is seen that the A.O. has not made any inquiry as regards to whom such gift items were distributed and what was the record maintained. The A.O. has also not enquired as to the proof/evidence of such distribution made to various stake-holders. Non inquiry in the matter has rendered the impugned order erroneous and prejudicial to the interest of Revenue." II. In this connection, the assessee company submits following details in respect of records available with the Assessing Officer, inquiries made by him and replies /details submitted by the assessee company. (a). Vide submission dated 17.06.2016 the assessee company submitted copy of Audit Report. Based on the verification of the financial statements, the Assessing Officer asked to provide break-up of Selling, publicity and medical literature expenses amounting to Rs. 279.20 crores as appearing in Note No. 21 "OTHER EXPENSES' of Profit & Loss account along with explanation for nature of expenses. In re....
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....iness associates, suppliers and such other professionals, etc. as already discussed in the submissions made before the Assessing Officer. IV. In this connection, it is also important to note that small items costing below Rs. 1000/- in each case are also of substantial amount and the balance of the total expenditure comes to Rs. 24.32 crores. Further, it is submitted that the small items costing below Rs. 1000/- in each case, given as a memento, would not be hit by the CBDT circular no. 5/2012. even if they are given to medical practitioners (as per MCI Regulation amended by Notification dated 01-02-2016). Therefore, it can be said that the Assessing officer has made disallowance of Rs. 5,51,37,427 out of expenditure of Rs. 24.32 crores, being expenditure on items exceeding Rs. 1000/- in each case. Apart from above, the Assessing Officer has also made disallowance of entire expenditure of Rs. 25,99,87,036, being expenses on Academic/ Scientific Grants to Doctors etc. V. Therefore, the observation of your honor that the Assessing Officer has not made any enquiry as regards to whom such gifts items were distributed and what was the record maintained, or as to the proof / eviden....
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.... passed by the AO is erroneous and prejudicial to the interest of Revenue by stating that AO has failed to make meaningful inquiry as to: - What kind of medicines being manufactured there (whether API or formulations) - Source of getting chemistry of molecules, if API is manufactured - Source of formula / composition, if formulation is manufactured - Whether the said units required approval from PDA / other regulatory authorities and if yes, who incurred expenses for such approvals? - Whether unit is manufacturing generic or branded medicines? If branded, whether these old brands belong to company? - Expenses incurred for business advancement (in India and abroad) - Expenditure debited to Baddi and Sikkim unit for salary / remuneration to higher management and administrative expenses - If medicines were exported, expenditure incurred and debited to the books of Baddi and Sikkim unit for export of such formulations. II. In this connection, the assessee company submits the following details about the records available with Assessing Officer, inquiries made by him and replies and details submitted by the assessee company: (a) As per the provisions of section....
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....e to this, the assessee company submitted its detailed explanation vide three replies filed on 13.12.2016 on each of the question raised by the assessing officer. Copies of those replies are annexed herewith vide Annexure-2(B)(i), 2(B)(ii) and 2(B)(iii). (d) Claim for deduction u/s. 80IC and 80IE of the Act: From the copy of Form 10CCB submitted by the assessee company, the Assessing Officer verified the basic details, regarding eligibility of claim u/s. 80IC and 80IE of the Act viz. a. location of the undertaking, b. commencement of commercial production, c. articles manufactured or produced i.e. pharmaceutical products (schedule XIV, part C, sr. no. 12) etc. Thereafter, the AO asked the assessee company to provide the details of other operating income of Baddi & Sikkim Unit and to explain its eligibility for claim u/s. 80IC and 80IE of the Act respectively. In response to the same the assessee company submitted explanation for eligibility of claim on account of other operating income u/s. 80IC and 80IE of the Act. Copy of the said submissions dated 14.12.2016 and 15.12.2016 is attached herewith vide Annexure-2(C) & 2(D) respectively. III. After considering....
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.... Disallowance s made in relation to Sikkim Unit Reallocation of administrative expenses 27,74,99,662 Reallocation of Development Cost of R&D 1,01,69,860 18,95,26,218 Allocation of Discovery cost of R&D 13,48,79,464 16,53,57,112 Allocation of Capital exp. of R&D 4,34,78,248 5,33,02,684 Exclusion of other income from eligible profit 6,97,68,075 30,81,029 Deduction claimed u/s. 80G out of Donation allocated to eligible unit 78,30,043 95,35,841 Deduction claimed u/s. 80GGB out of 85,78,209 1,04,46,997 Donation allocated to eligible unit Total 27,47,03,899 70,87,49,543 On the basis of above table, it can be seen that the Assessing Officer has, after thorough examination of all the records / details / information and after in-depth verification of income and expenses, made disallowances of Rs. 27,47,03,899/- in relation to Baddi unit, which eligible for deduction u/s. 80IC and Rs. 70,87,49,543/-, in relation to Sikkim unit, which eligible for deduction u/s. 80IE. IV. On the basis of above, it can be said that it is not a case that there is non-application of mind on the part of the assessing officer in this matter as observed by your ....
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....the above, the assessee company submits that the notice u/s 263 of the Act issued by your honor on this issue is devoid of any merits as the order passed by Assessing Officer is not prejudicial to the interest of revenue. 5.3 Regarding details of expenses on account of Quality Control & Regulatory Approvals. Claim u/s. 35(2AB) for R&D expenses on account of Patent or related expenses outside India. Clinical Research Expenses and Other expenses (being labour, job work charges, professional fees, legal expenses and other salary expenses) I. Vide Para no. (iii), (iv) and (v) of the above referred notice, your honor has considered the assessment order passed by the AO as erroneous and prejudicial to the interest of Revenue stating as under: "(iii) You have debited a total expenses of Rs. 137.41 crores on account of R&D expenses on which a weighted deduction has been claimed, The A.O. has not enquired as to whether separate expenses have been incurred by you on account of quality control & regulatory approvals or whether they have been grouped into R&D expenses. Non application of mind in this matter by the A.O. has rendered the impugned order as erroneous and prejudicial to the....
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....d to be audited annually by a Chartered Accountant and a report for the same is required to be submitted to the prescribed authority i.e. DSIR for each year. It is also provided that the DSIR shall issue its report in relation to the approval of in-house R&D facility in Form No. 3CL. Hence, the assessee company had claimed the deduction u/s. 35(2AB) after complying with all the statutory requirements and the expenditure incurred by the assessee company on R&D activities have also been verified and certified by DSIR. (b) Vide submission dated 17.06.2016, the assessee company submitted copy of Acknowledgement of Return of Income along with the Statement of Total Income, wherein the claim made by the assessee company u/s. 35(2AB) of the Act was verifiable. Further, during the course of assessment proceedings copy of Form 3CM issued by DSIR for approval of the Torrent Research Centre as an inhouse research centre and Form 3CL issued by DSIR were also submitted. In order to verify the allowability of claim made by the assessee company, the Assessing Officer had asked the assessee company to submit the necessary details and an explanation as to why the weighted deduction claimed by....
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.... Building related recurring expenses 104.88 Municipal Taxes 12.84 Salary to Dr. C. Dutt 274.19 Employees not having degree in science 338.55 (B) 730.46 Total [C= (A+B)] 2,938.77 200% of capital expenditure (other than building of Rs. 137.50 lacs) (D) 275.00 Total amount of Disallowance u/s. 35(2AB) - (C+D) 3,213.77 (b) The above table shows that the issues raised by your honor in the show cause u/s 263 of the Act were already inquired by Assessing Officer and after rejecting the submissions of the assessee company the said expenses were already disallowed. In this connection, the assessee company further submits that the expenditure on Patents amounts to Rs. 4.67 crores and not Rs. 4.75 crores as mentioned in the above referred show cause notice u/s. 263 of the Act. However, the assessee company submits that an Amount of Rs. 4.75 crores is already disallowed by the Assessing Officer and the same is worked out as under and the same is verifiable from the above table in para III (a): Particulars Amount Spent in India Amount Spent outside India Total Patent Expense (Official Fees) 6.78 57.32 64.10 Patent Expense (Consulting Fees]....
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....aluka Kadi, Dist. Mehsana, Gujarat; - Village Bhud, Nalagarh, Baddi, Dist. Solan, Himachal Pradesh; - - 32 No. Middle Camp, NH-31A, East District, Gangtok (Sikkim). The above information was provided to the Assessing Officer when specific query was raised by him on the same. (b) In this background, your honor would appreciate that it is not possible to send the goods manufactured in different units and at different locations to R&D facility for quality control and testing purpose. Hence, there does not arise a question that expenditure relating to quality control & regulatory approvals are grouped into R&D expense. Further, the expenditure on Quality control is part of production cost, as it is incurred at the stage of production only and therefore, it is debited in the books of account of the respective units. As the assessee company is engaged in the business of manufacture and production of pharmaceutical products, the Quality testing and approval process are required to be carried out before the finished product is packed before its removal from manufacturing plant. Accordingly, it is clear that the quality control and testing activities can be carried out at man....
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.... details of records available with Assessing Officer, inquiries made by Assessing Officer and replies and details submitted by the assessee company: (a) During the course of assessment proceedings, the Assessing Officer asked to provide break-up of Selling, publicity and medical literature expenses amounting to Rs. 279.20 crores as appearing in Note No. 21 "OTHER EXPENSES' of Profit & Loss account along with explanation for nature of expenses. In response to the same, the assessee company submitted the detailed breakup of selling and Publicity expenses incurred for Domestic Market and other than Domestic Market, detailed explanation for nature of such expenditure, along with break-up of Business Advancement expenses giving details of items costing more than Rs. 1000/-and those less than Rs. 1,000/-, vide submission dated 10.12.2016. Copy of the said reply is annexed herewith vide Annexure-1(a) supra. (b) On the basis of verification and examination of details submitted vide above mentioned submitted dated 10.12.2016, the assessee company was asked to show cause as to why expenses accounted under head of Business Advancement Expenses and Doctors' Sponsorship, which are....
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....es which were also engaged in marketing or formulations in other countries. * In this regards, the assessee company submits that the account of the assessee company has been audited under The Companies Act as well as the same are subject to Tax Audit under the provisions of Income tax Act. All the expenditure debited in its P&L account have been verified by the Auditor as rightfully incurred by the assessee company for its business. * Vide submission dated 17.06.2016, the assessee company submitted copy of Form no. 3CEB, from which the Assessing Officer verified the details of transaction entered into with associated enterprises. During the course of assessment proceedings, the assessee company also submitted the documentation relating to Transfer Pricing, which provide the basis of all the transactions with associated enterprises and gives all the details which are self-explanatory. Therefore, no further questions were required to be raised. * In this context, the assessee company submits that for providing of market information and regulatory support services in order to promote the Company's business in the respective territory and to act as a legal agent for the Co....
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....orementioned pleas earlier raised before the Pr.CIT and vociferously exhorted that the assessee is a listed company and is run by a professional Board. The accounts are exhaustively audited and is subjected to comprehensive internal audit as well as statutory audit. The assessee company is engaged in manufacture and production of pharmaceutical products and is one of the leading and renowned company in the sector. The company has reported generation of revenue from pharmaceutical operations in the vicinity of Rs. 4000 Crores on average in last two years. The income returned by the assessee is also to the tune of Rs. 584.13 Crores. The learned AR contended that in this backdrop, the action of the AO requires to be evaluated. 6.1 The learned AR thereafter adverted to the specific allegations raised on various issues and submitted that the detailed reply before the Pr.CIT is self explanatory. 6.2 Rebutting the alleged inadequacy in inquiry on expenditure of Rs. 24.32 Crores on gift item, the learned AR referred to the submissions made before the Pr.CIT and submitted that the expenditure incurred towards gift is miniscule having regard to the scale of operations. The learned AR refer....
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....cessary inquiries were made by the AO as noted in the detailed submission before the Pr.CIT. The learned AR thereafter submitted that Torrent Research Centre (TRC) was approved as an in-house Research Centre by the prescribed authority i.e. DSIR. The assessee has filed requisite statutory forms to support the compliance of conditions prescribed under s.35(2AB) of the Act. The AO however did not accept the claim of the assessee in toto and substantial disallowance aggregating to Rs. 3213.77 Lakhs was made as detailed in the submissions and the assessment order. The advantage of weighted deduction in respect of expenses towards quality control etc. has not been taken. The learned AR submitted that in these circumstances, where the submissions of the assessee were partly rejected after making enquiry, the allegation towards inadequacy in enquiry is totally unsustainable. As submitted, the issue towards separate expenses on quality control and regulatory approvals was also addressed to the AO as pointed out in the written submissions. Thus, non-application of mind of AO to the underlying facts is not discernible. 6.5 Adverting to the clinical research expenditure of Rs. 1214.01 Lakhs,....
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....has wrongly appreciated the factual aspects. The learned AR submitted that each and every issue raised by the Pr.CIT in its show cause notice were thoroughly examined by the AO as demonstrated in the written submission before the Pr.CIT. There was full application of mind on the part of the AO on all the issues. The learned AR vehemently submitted that huge adjustments to the returned income as a corollary to these factual appreciation ipso facto vindicates the fact of proper enquiry and application of mind. The assessment framed resulted in over all additions /disallowances of approximately Rs. 131 Crores. A number of written submissions filed before the AO during the course of assessment proceedings were also annexed to the detailed response to the show cause notice issued under s.263 of the Act to shun the suspicion on issues frowned upon. It was thus contended on behalf of the assessee that it was only after requisite inquiry and examination of facts and after objective analysis thereof on each and every issue raised in the show cause notice, the AO had adopted a view for or against the assessee. It was thereafter vehemently submitted that such issues were already subject matte....
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....ssumption of facts nor alleged the incorrect application of law successfully. The learned AR next referred to the decision of the Hon'ble Gujarat High Court in the case of CIT vs. R. K. Construction Co. (2009) 313 ITR 65 (Guj) for the proposition that where the AO has taken a particular view on the basis of evidences produced before him, it is not open for the Commissioner, in the revisional proceedings under s.263 of the Act, to take a different view on the same material. The AO in the instant case has specifically examined all the issues raised by Pr.CIT albeit not probably in the manner in which the Pr.CIT would have liked but this cannot be the ground for assumption of jurisdiction under s.263 of the Act. The learned AR thus submitted in conclusion that the assessment order under review cannot be labelled as erroneous in so far as prejudicial to the interest of the Revenue within the terms of Section 263 of the Act in the circumstances so narrated. 7. The learned DR, on the other hand, vehemently supported the action of the Revisional Authority and relied upon the order so passed under s.263 of the Act. As regards, business advancement expenditure, the learned DR submitted tha....
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....d to upset the finality of assessment proceedings before the AO where the AO has allegedly committed error in passing assessment order without proper verification of expenses and deductions claimed. Implicit in the question is the scope of powers of Revisional Commissioner in the event of alleged inadequacy of enquiry into various aspects of an issue. 8.3 On perusal of the show cause notice (SCN) dated 18.08.2017 issued by the Revisional Commissioner proposing to set aside the assessment order dated 26.12.2016 passed by AO under s.143(3) of the Act, we notice that the Pr.CIT is essentially dissatisfied with the degree of inquiry made in respect of issues raised therein. Firstly, as per para (i) of SCN, the Pr.CIT alleged that inquiry was not made on distribution of gift items to various individuals which include expenditure incurred of Rs. 24.32 Crores on gift items exceeding Rs. 1000/- each. Such non-inquiry was alleged to be erroneous and prejudicial to the interest of the revenue. As noted above, the assessee responded by stating that the detailed breakup of business advancement expenses amounting to Rs. 55.14 Crores incurred was provided to the AO in pursuance of specific quer....
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....The AO, in our view, has not committed any error in not chasing will o the wisp in the absence of any brazen circumstances. The action of the Pr.CIT on this issue of business advancement expenses appears to be guided by the considerations of Revenue alone and thus cannot be viewed with favour. 8.4 The second issue flagged as per para (ii) of the show cause notice concerns examination of certain points in relation to Baddi unit and Sikkim unit. As an adjunct to this allegation, the Pr.CIT also asserted that the AO has failed to apply as to what kind of medicines are being manufactured and whether the units were API or it was formulation etc. We have perused the allegation as reproduced in para 4 of this order. The Pr.CIT essentially opined that the AO failed to make inquiry regarding the manufacturing process and nature of medicines being manufactured and thus alleged that assessment order is vitiated for this reason. In this connection, we take note of the reply dated 10th December, 2016 placed by assessee before the AO touching the aforesaid issue. As pointed out on behalf of the assessee, the books of accounts of Baddi unit and Sikkim units are maintained separately and the allo....
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....urportedly not met, it should not necessarily trigger revisional action under s.263 of the Act in every case. The discretion given to the supervisory authority is expected to exercise in a judicial manner having regard to the totality of facts. 8.5 We shall now turn to the next issue namely non inquiry towards quality control and regulatory approval in relation to R&D expenses on which the assessee has claimed weighted deduction. In this regard, we refer to the reply of the assessee before the Pr.CIT clarifying the issue. The Pr.CIT has not rebutted the explanation of the assessee anywhere. It was pointed out by the assessee before the Pr.CIT that it had already informed the AO vide submissions dated 10.12.2016 filed in the course of assessment proceedings that all manufacturing and direct expenses incurred for each unit have been accounted directly in the respective books of accounts of given unit. It was clarified that expenditure relating to quality control and regulatory approvals were not grouped into R&D expenses. The quality control has been claimed as an ordinary expenditure in the respective books of various units as it is a part of the production costs. The assessee furt....
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....relation to the issue. This apart, vide submission dated 17.062016, the assessee company also submitted copy of Form No. 3CEB towards details of transaction entered into with Associated Enterprises. The transactions are also reported in the transfer pricing report under s.92D as well as in transfer pricing documentation during the course of assessment proceedings. It is the case of the assessee that the expenses incurred towards promoting its business in foreign territory were allowed after thorough verification of transfer pricing documentation. The applicability of CBDT Circular No. 5/2012 (supra) on account of items costing less than Rs. 1000/- given as a freebies to medical practitioners is, at best, a debatable issue in view of the language employed the circular. The AO has examined all the aspects and has recorded a conscious finding on each issue. The action of the Revisional Commissioner is not tenable on this score either. 8.8 On a broader reckoning, we note that it is the case of the assessee that the AO has recorded a conscious finding after considering the factual matrix in the given context and in the light of prevailing legal position and having regard to the past hi....
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....ore imperative to dwell upon the impact of Explanation 2 for the purposes of Section 263 of the Act. 9.1 The aim and object of introduction of aforesaid Explanation by Finance Act, 2015 was explained in CBDT Circular No. 19/2015 [F.NO.142/14/2015-TPL], Dated 27-11-2015 which is reproduced hereunder: "53. Revision of order that is erroneous in so far as it is prejudicial to the interests of revenue. 53.1 The provisions contained in sub-section (1) of section 263 of the Income-tax Act, before amendment by the Act, provided that if the Principal Commissioner or Commissioner considers that any order passed by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, he may, after giving the assessee an opportunity of being heard and after making an enquiry pass an order modifying the assessment made by the Assessing Officer or cancelling the assessment and directing fresh assessment. 53.2 The interpretation of expression "erroneous in so far as it is prejudicial to the interests of the revenue" has been a contentious one. In order to provide clarity on the issue, section 263 of the Income-tax Act has been amended to provide that an orde....
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....lled, unguided and uncanalised powers are vested with the competent authority. The powers under s.263 of the Act howsoever sweeping are not blanket nevertheless. The AO cannot be expected to go to the last mile in an enquiry on the issue or indulge in fleeting inquiries. The action of the Revisional Commissioner based on such expectation requires to be struck down. 9.3 The use of expression 'which should have been made' in clause (a) to Explanation 2 to Section 263 of the Act is significant. This impliedly tests the action of AO on the touchstone of reasonableness and rationality in approach. It clearly suggests that context also holds the key in the matter of enquiry. The action of the AO requires to be evaluated contextually. If the aforesaid Explanation is read in a abstract manner de horse the test of reasonableness and context, the powers of Revisional CIT would be rendered invincible and almost every assessment order can be possibly frustrated. A nuanced understanding of Explanation suggests that inadequacy in inquiry ought to be of cardinal nature to ignite the potent powers of review. 9.4 As noted, the assessee is a very big player in the pharma sector and enormity of ope....