TaxTMI 
TaxTMI 
2018 (11) TMI 266
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....ch is mainly engaged in stud farm activities. There was search and seizure action u/s.132 of the Act on the assessee's group of cases on 21-06-2011. In response to notice u/s.153A of the Act, assessee filed the return of income on 15-10-2010 declaring total income of Rs. 42,12,57,021/-. During the said search action, various incriminating documents were found and seized/ by the Department in respect of entities connected with the group. Cash was also seized by the Department. During the assessment proceedings u/s.143(3) of the Act for the A.Y.2010-11, AO made various disallowances i.e. additions u/s.14A of the Act, EDP expenses, Foreign Travel Expenses, depreciation on plant and machinery, freight and insurance expense pertains to EOU unit, provision for leave encashment, repairs to building, plant and machinery and product development expenses, etc., apart from others. AO assessed the income of the assessee for the year under consideration at Rs. 158,31,61,728/-. CIT(A) partly allowed the appeal of the assessee relying on the decisions of his predecessor/Tribunal. 3. Aggrieved with the part relief given by the CIT(A), the Revenue is in appeal before the Tribunal. Furth....
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....ated at 70, Koregaon Park, Pune taken on lease (belonging to M/s.Poonawalla Finvest & Agro Pvt. Ltd. ZSP Group company) for office of Director of appellant company and depreciation of Rs. 15,26,708/- on the assets placed thereat. 9. in upholding the disallowance of purchases of Rs. 7,78,950/- by treating the same as 'Bogus purchases'. 10. in confirming the action of A.O. for not directing the AO to reduce Wealth Tax paid of Rs. 21,40,955/- for computing book profit u/s.115JB. 11. The appellant craves leave to add/alter/withdraw any of the 'Grounds of Appeal' at the time of appeal proceedings. Your appellant further submits that the grounds of appeal are, save as otherwise specified, notwithstanding and without prejudice to each other." 5.1 Assessee also filed modified grounds and the same read as under: "1a. The Ld.CIT(A) ought to have held that no disallowance u/s.14A(2) r.w.r.8D can be sustained in the absence of a specific recording of satisfaction by the A.O. based on cogent material and having regard to the accounts of the assessee, to the effect that the claim of the assessee is not correct. b. The Ld.CIT(A) failed to appreciate....
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....completeness, the said paras are extracted as follows : "22. After hearing both the sides on this issue and on perusing the orders of the Revenue, we find the AO did not give the satisfaction having regard to the book of account of the assessee. Further, with similar kind of satisfaction in the case of Poonawalla Investment and Industries Pvt. Ltd. (supra), we hold that the same falls short of the requirement. For the sake of completeness, relevant paras are extracted as follows : "27. In connection with Ground No.1, Ld. Counsel for the assessee submitted that AO failed to record satisfaction which is required while invoking the provisions of section 14A of the Act r.w. Rule 8D of the I.T. Rules, 1962. Bringing our attention to the contents of Para No.5.1 of the assessment order, Ld. Counsel submitted that the AO failed to record the satisfaction before invoking the provisions u/s.14A of the Act. Further, Ld. AR read out the relevant lines from the said para of the assessment order. For the sake of completeness, we proceed to extract the same as under : "5.1. . . . . . . . It is difficult to accept the proposition that all the tax free i....
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....ection 14A(2) and (3) read with rule 8D of the Rules or a best judgment determination, as earlier prevailing, would become applicable." (emphasis supplied). 31. The above ratio was adopted by the Pune Bench of the Tribunal in the case of Capgemini Technology Services India Limited, (in the matter of iGate Computer Systems Limited, (formerly Patni Computer systems Limited amalgamated with iGate Global Solutions Limited and name changed) Vs. DCIT vide ITA Nos. 216 and 360/PUN/2015, order dated 25-01-2018 and allowed the issue in favour of the assessee. For the sake of completeness, relevant operational paras are extracted here as under : "34. We have heard the rival contentions and perused the record. The Assessing Officer while passing the assessment order in para 10 had observed that the assessee had earned significant amount of tax free dividends and in the computation of income, the assessee has disallowed sum of Rs. 50 lakhs under section 14A of the Act. Then, reference is made to the Note filed by the assessee on expenditure disallowable under section 14A of the Act. The Assessing Officer thereafter, takes note of the contents of said explana....
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.... Officer that having regard to the accounts of the assessee, as placed before him, it is not possible to generate the requisite satisfaction with regard to the correctness of the claim of the assessee. It is only thereafter that the provisions of section 14A(2) and (3) read with rule 8D of the Rules or a best judgment determination, as earlier prevailing, would become applicable." (underline provided by us for emphasis) 36. The ratio laid down by the Hon'ble High Court of Delhi in Indiabulls Financial Services Ltd. Vs. DCIT (supra) is thus, not applicable. The ground of appeal No.3 raised by the Revenue is thus, dismissed." 32. From the above, we are of the view that the satisfaction recorded by the AO in Para No.5.1 is extremely based on the suspicion and surmises. The satisfaction arrived at by the AO with reference to the entries in the books of account of the assessee and also having regard to the correctness of the claim of the assessee. In that sense of the matter, the satisfaction recorded by the AO is extremely generic and which falls short of the legal requirement for assuming jurisdiction u/s.14A of the Act. Considering the above positi....
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....ctors and their wives, but it is purely incurred by employees who have travelled for business purpose. 5. The issue has been decided in favour of assessee in its own case vide order for A.Y. 2009-10 (ITA No.1184/PUN/2015 - Serum Institute of India Pvt. Ltd. Vs. DCIT, CC-(1), Pune), wherein issue has been remanded back to the file of AO for verification of facts of expenses incurred other than the purchase of machinery." 8.2 On noting the fact, a similar issue was adjudicated, we proceed to extract relevant Para No.30 onwards from the order of Tribunal for the A.Y. 2009-10. The same reads as follows : "30. On hearing both the sides on this issue, we find the Tribunal in the assessee's own case vide ITA No.931/PUN/2013, dated 22-07-2016 for the A.Y.2008-09 has decided the issue against the assessee and the said finding is extracted here as under for the sake of completeness : "26. The seventh ground raised in the appeal by the assessee is against disallowance of foreign travel expenses of employees Rs. 25,77,069/-. The assessee had claimed the expenditure as revenue expenditure. The ld. AR of the assessee fairly admitted that in the earlier assessment ye....
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.... Assessing Officer as to the details of employees who made foreign tours for the purpose of purchase of machinery, assessee furnished details vide letter dated 27-11-2008 which has been reproduced by the Assessing Officer in para 7 of the assessment order. In the said para, the Assessing Officer has also referred to a letter of the assessee dated 12-11-2008 wherein it was pointed out that the machinery was purchased in the subsequent year. In this background, the point to be decided as to whether the impugned expenditure of Rs. 7,91,197/- on the foreign travel was to be allowed as a revenue expenditure or not. Quite clearly, the plea of the assessee has been that such expenditure has been incurred on foreign tours of the employees for the purpose of purchase of machinery. Since the purpose of travel admittedly, is purchase of machinery, the CIT(A), in our view, made no mistake in holding that the cost of such foreign travel was liable to be treated as part of cost of machinery. Ostensibly, the purchase of the machinery was not finalized in the particular year but the same has been purchased in subsequent year, as adverted by the assessee before the Assessing Officer. There....
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.... that the expenses incurred for the purpose other than the purchase of machinery, needs to be verified by the AO, we find this issue needs to be remitted back to the file of AO for verification of correctness of the facts relating to this claim. AO is directed to verify the expenses in this regard after granting reasonable opportunity of being heard to the assessee. Assessee is directed to produce relevant documents to substantiate his claim. Accordingly, Ground No. 2 raised by the assessee is allowed for statistical purposes." 8.3 From the above, it is evident that the similar issue has been the bone of contention over the assessment years 2008-09 & 2009-10 too. Following the principle of consistency, we proceed to remit the issue to the file of AO with identical direction. Accordingly, the Ground No.2 is allowed for statistical purposes. 9. Ground No.3 relates to classification issues qua the depreciation rates. At the outset, Ld. Counsel for the assessee submitted that this issue stands covered by the order of Tribunal in the assessee's own case for the A.Yrs. 2008-09 and 2009-10. The following is the write up given by the Ld. Counsel for the assessee ....
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....9-10. We therefore proceed to reproduce the relevant paragraphs from the order of Tribunal (supra) and the same read as under : "35. Fourth issue: Ground No.4 raised by the assessee relates to disallowance made by the AO on account of 'provision for Leave Encashment' amounting to Rs. 96,47,634/-. 36. Before us, Ld. Counsel for the assessee submitted that the issue stands decided against the assessee by the order of Tribunal in assessee's own case in ITA No.931/PN/2013, dated 22-07-2016 for the A.Y.2008-09. "37. After hearing both the sides on this issue, we find the Tribunal vide the discussion given at Para No.18 has decided the issue against the assessee relying on the order of Tribunal for the A.Y. 2002-03 wherein the Tribunal relied on the judgment of Hon'ble Calcutta High Court in the case of Exide Industries Ltd. and Another Vs. Union of India 292 ITR 470 and the judgment of Hon'ble Bombay High Court in the case of Universal medicate Private Limited 324 ITR 263. For the sake of completeness, we proceed to extract the relevant finding given by the Tribunal (supra) and the same reads as under : "18. We have heard the submissions made by the l....
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....intenance of share transactions from demat account is not to be allowed u/s.48 of the Act since the expenditure was not incurred wholly and exclusively in connection with such transfer or as the cost of acquisition and cost of improvement thereto and thus made the disallowance of sum of Rs. 1,10,605/-. The CIT(A) defined the expression 'wholly' and 'exclusively' in his order. The CIT(A) also distinguished the decision of Bangalore Bench of the Tribunal in the case of Infosys Technologies Limited (supra) and held that the said decision is not applicable to the facts of the present case and upheld the disallowance made by the AO on account of demat charges. Aggrieved with the order of CIT(A), the assessee is in appeal before us. 45. Ld counsel for the assessee at the outset submitted that the issue stands decided in favour of the assessee by the decision of the Pune Bench of the Tribunal in the case of KRA Holding and Trading Pvt. Ltd. Vs. DCIT and vice-versa vide ITA No.703/PN/2012 & ITA No.665/PN/2012 order dated 19-09-2013 for A.Y. 2008-09 wherein it has been held that the claim of Portfolio Management Fees is an allowable expenditure from such capital gain. 46. ....
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.... factual matrix brought out by the learned counsel so however she has relied upon the order of the CIT(A) in support of the case of the Revenue. 13. We have carefully considered the rival submissions and also the precedent in the assessee's own case by way of the order of the Tribunal dated 25.07.2012 (supra). In the said case, the Tribunal considered the allowability of expenditure incurred by way of payment of fees of ENAM Asset Management Company Pvt. Ltd. in terms of the investment agreement dated 01.01.2005, which is precisely the issue before us also. The Tribunal referred to its earlier decision in the assessee's own case for assessment year 2004-05 vide order dated 31st May, 2011 (supra) and noticed that the issue has been decided in favour of the assessee. Thereafter, the Tribunal noted that against the decision of the Tribunal dated 31st May, 2011 (supra), Revenue preferred an appeal before the Hon'ble Supreme Court only on the issue treatment of income from the sale of shares as 'capital gain' or 'business income' and that the Revenue had not preferred any appeal against the order of the Tribunal allowing the claim of deduction of expenditure by way of Portfolio....
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....see. Considering the above as well as the commonality of the facts of the case in hand, we allow the Ground No.5 raised by the assessee. 12. Ground No.6 by the assessee relates to disallowance of expenditure relating to laying of water pipelines amounting to Rs. 31,39,226/-. 12.1 Relevant facts on this issue include that the assessee claimed the said expenditure as revenue expenditure. Assessee explained that the expenditure has been booked under Schedule-6 addition to fixed assets in respect of Building totalling to Rs. 2,20,19,566/-. Assessee also explained that assessee entered into leave and license agreement with the Executive Engineer, Khadakwasla Irrigation Division on 11-02-2008 for laying the pipeline at a stretch of 6 kilometres from the company location. Details of breakup of the said expenditure are also given by the assessee. Assessee relied on the decision in the case of CIT Vs. Chowgule Chemicals Pvt. Ltd. 216 ITR 234. Assessee contended that assessee is engaged in the business of vaccine production and purified water is the main ingredient for running the business and hence the expenditure is to maintain the business and not to create an asset. Rejecting the e....
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....of the Maharashtra Government. Water is an essential raw material for the Serum Institute and the quality of water is specified. There is no dispute on these facts. From this point of view, assessee is not the owner of the land/water under any law. On the above facts, we have to decide what law shown in the case of Chowgule Chemicals Pvt. Ltd. (supra). On perusal of the said judgment of jurisdictional High Court, we find the said assessee also incurred expenditure for laying a new pipeline for supplying water to the factory premises of the assessee during the year 1978-1979. On the issue of capital/revenue nature of the said expenditure, the Hon'ble High Court held in favour of the assessee relying on its own judgment in the case of CIT Vs.Tata Engineering and Locomotive Company Ltd. 201 ITR 1036. Contents of Para 4 of the said judgment are relevant and therefore, the same are extracted as under : "4. On a careful consideration of the facts of the present case, we find it difficult to accept the above contention. The various tests evolved from time to time by courts to determine whether an expenditure is a revenue expenditure or capital expenditure are too well known to ne....
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....siderations." 6. Applying the above principles to the facts of the present case, we are of the clear opinion that the expenditure incurred by the assessee was a revenue expenditure and not an expenditure of capital nature and the Tribunal was justified in holding so and allowing the deduction to the assessee in the computation of its income on account thereof." From the above, it is evident that the Hon'ble High Court has categorically held under the weight of other business considerations, the test of enduring benefit might even break down. The said view has strength of the Supreme Court judgment in the case of Dalmia Jain and Company Ltd. Vs. CIT 81 ITR 754 as well which is relevant for the proposition that certain litigation expenditure relating to the leasehold rights constitute Revenue expenditure. Therefore, we are of the opinion that the expenditure incurred on laying of the water pipeline involving the land owned by Maharashtra Government constitutes Revenue expenditure. Accordingly, Ground No.7 raised by the assessee is allowed in favour of the assessee." 12.5 On the facts as well as on law, the issue is linked to the ones decided by us in A.Y....
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....ncil of India. Since discounts on purchase of vaccines given to doctors do not violate any laws and hence, are not covered by Explanation u/s.37(1) of the Act. AO failed to appreciate that the Circular issued by CBDT No.5/2015 enlarges the scope of disallowance in the hands of Pharma Companies without any enabling Notification or circular of Medical Council of India. In support of its claim, Ld. Counsel relied on the following decisions : 1. M/s. Solvay Pharma India Ltd. VS. PCIT 89 taxmann.com 249 (Mum. ITAT) 2. DCIT Vs. PHL Pharma Pvt. Ltd. 78 taxmann.com 36 (Mum. ITAT) 3. Emcure Pharmaceuticals Ltd. Vs. DCIT - ITA No.1532/PUN/2015 13.4 On the other hand, Ld. DR for the Revenue relied on the orders of the AO/CIT(A). 13.5 On hearing both the parties and the orders of the Revenue. We find identical issue was the subject matter in the assessee's own case in ITA No.549/PUN/2016, dated 12-10-2018 for the A.Y. 2011-12 has been allowed in favour of the assessee. We therefore proceed to extract the finding given by the Tribunal here as under: "15.5 We heard both the sides and perused the orders of the Revenue and the decisions relied on by the Ld....
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....usiness income. The Explanation provides an embargo upon allowing any expenditure incurred by the assessee for any purpose which is an offence or which is prohibited by law. This means that there should be an offence by an assessee who is claiming the expenditure or there is any kind of prohibition by law which is applicable to the assessee. Here in this case, no such offence of law has been brought on record, which prohibits the pharmaceutical company not to incur any development or sales promotion expenses. A law which is applicable to different class of persons or particular category of assessee, same cannot be made applicable to all. The regulation of 2002 issued by the Medical Council of India (supra), provides limitation/curb/prohibition for medical practitioners only and not for pharmaceutical companies........... 10. From the perusal of the nature of expenditure incurred by the assessee, it is seen that under the head "Customer Relationship Management", the assessee arranges national level seminar and discussion panels of eminent doctors and inviting of other doctors to participate in the seminars on a topic related to therapeutic area. It arranges lectures and spo....
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....ading of the provision of the Indian Medical Council Act, 1956, it is apparent that the ambit of statutory provisions relating to professional conduct of registered medical practitioners under the Indian Medical Council Act, 1956 is restricted only to persons registered as medical practitioners with the State Medical Council and whose names are entered into the Indian Medical Register maintained u/s 21 of the Act. 'Under the scheme of the Act. 19. Furthermore, there is no ambiguity of any kind in the scheme of the Indian Medical Council Act, 1956 that it neither deals with nor provides for any conduct of any association / society and deals only with the conduct of individual registered medical practitioners. There is no other interpretation, which is possible under the Act. 20. The intent of the applicability of the MCI Regulations was always to cover only individual medical practitioners, and not the pharmaceutical and medical device companies. Whether there is any contravention of the MCI Regulations or not is a matter which can be decided by the MCI itself and not by the Income-tax Department. Furthermore, the MCI has itself admitted that it has no....
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....maceutical company or any allied health sector industry, then such a regulation cannot have any prohibitory effect on the pharmaceutical company like the assessee. If Medical Council regulation does not have any jurisdiction upon pharmaceutical companies and it is inapplicable upon Pharma companies like assessee then, where is the violation of any of law/regulation? Under which provision there is any offence or violation in incurring of such kind of expenditure. 23. Now coming to the Explanation to Section 37(1) invoked by the CIT, the Explanation provides an embargo upon allowing any expenditure incurred by the assessee for any purpose which is an offence or which is prohibited by law. This means that there should be an offence by an assessee who is claiming the expenditure or there is any kind of prohibition by law which is applicable to the assessee. Here in this case, no such offence of law has been brought on record, which prohibits the pharmaceutical company not to incur any development or sales promotion expenses. A law which is applicable to different class of persons or particular category of assessee, same cannot be made applicable to all. The regulation of 2002 ....
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....kind of hardship or liability to the assessee. In any case, it is trite law that the CBDT circular which creates a burden or liability or imposes a new kind of imparity, same cannot be reckoned retrospectively. The beneficial circular may apply retrospectively but a circular imposing a burden has to be applied prospectively only. Here in this case the CBDT has enlarged the scope of 'Indian Medical Council Regulation, 2002' and made it applicable for the pharmaceutical companies. Therefore, such a CBDT circular cannot be reckoned to have retrospective effect. The free sample of medicine is only to prove the efficacy and to establish the trust of the doctors on the quality of the drugs. This again cannot be reckoned as freebies given to the doctors but for promotion of its products. The pharmaceutical company, which is engaged in manufacturing and marketing of pharmaceutical products, can promote its sale and brand only by arranging seminars, conferences and thereby creating awareness amongst doctors about the new research in the medical field and therapeutic areas, etc. Every day there are new developments taking place around the world in the area of medicine and therapeutic....
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.... the Tribunal decided the issue in favour of the assessee and held that the said expenditure incurred on repairs and renovation constitutes revenue expenditure and allowable u/s.37(1) of the Act. Ld. Counsel drew our attention to the order of Tribunal in the assessee's own case for the A.Y. 2009-10 to demonstrate the fact of deciding the issue in favour of the assessee. 14.2 We heard both the sides and perused the orders of the Revenue. On going through the order of Tribunal in the assessee' s own case for the A.Y. 2009-10. We find this is a decided issue and therefore, we proceed to extract the finding given by the Tribunal (supra) and the same reads as under : "54. We heard both the sides and perused the orders of the Revenue and the order of the Tribunal in the assessee's own case for the A.Yrs. 2006-07 and 2007-08. On perusal of the said order of the Tribunal (supra), it is evident that the ground raised in this appeal relates to rent as well as expenditure incurred on repairs and renovation. At the end of the proceedings, the Tribunal allowed the ground raised by the assessee. We find it relevant to extract the relevant paras of the Tribunal (supra) and the same re....
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....sidered for business purposes. 56. On hearing both the parties on this issue, we find there is no clarity with reference to the capitalised items of assets credited to the Serum Institute of India Ltd. in the said house premises occupied by Mr. Z.S. Poonawalla, applicable rate of depreciation and the use of the asset etc. As discussed in the open court, we are of the opinion that this limb of the ground should be remanded to the file of AO for fresh adjudication after granting reasonable opportunity of being heard to the assessee in accordance with the set principles of natural justice. Accordingly, this part of the issue is allowed for statistical purposes. Thus, Ground No.8 is partly allowed for statistical purposes. 14.3 Considering the above and rule of consistency, we allow the expenditure on account of rent paid in favour of the assessee and remit the issue pertaining to depreciation with identical directions. Accordingly, Ground No.8 by the assessee is partly allowed for statistical purposes. 15. Ground No.9 raised by the assessee relates to disallowance of Rs. 7,78,950/- on account of bogus purchases. 15.1 Relevant facts on this issue include that AO disal....
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....ere can be no delivery of goods, then it is case of passing of bills of sale and purchases, against which no VAT has been paid. Such bogus purchases are then to be added in the hands of assessee. Where the Assessing Officer had confronted the assessee with the information received, supplied copies of statements and where the persons have not been traced and no confirmation has been filed by the assessee in this regard, then the addition is to be made in the hands of assessee on account of such bogus purchases. In the facts and circumstances of some cases, the goods have been transferred by such hawala dealers to the respective purchasers, against which the assessee has to discharge onus of establishing the trail of goods which are transferred and further sold by them. Where the assessee is able to produce evidence of purchase of goods by way of weighment bridge receipts, transportation documents, payment of octroi and subsequent sale of goods to the respective parties and / or where the assessee has maintained complete quantitative details of purchase and sale of goods, then total bogus purchases cannot be added in the hands of assessee, but GP rate of 10% is to be applied on bogus....
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....sale of the same consignment through same transporter directly to the party, then the total purchases cannot be added in the hands of assessee. However, since the purchases are made from the grey market, some estimation needs to be made in the hands of assessee. The Tribunal in M/s. Chetan Enterprises Vs. ACIT (supra) has already held that the addition be made by estimating the same @ 10% of the alleged hawala purchases, over and above the GP shown by the respective assessee. V. Another set of cases where the statements recorded by the Sales Tax Department have been handed over to the assessee and the copies of same have been supplied to the assessee, then where the assessee established the case of receipt of goods and its onward transmission, then the factum of purchases by the assessee stands established in such circumstances. However, estimation is to be made in the hands of assessee because of purchases from the grey market and following the above said ratio, addition is to be made by estimating the same @ 10% of the alleged hawala purchases, over and above the net profit shown by the assessee. 41. Now, coming to the factual aspects of each o....
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....eved with the order of CIT(A), the assessee is in appeal before the Tribunal vide Ground No.10. 16.1 Before us, Ld. Counsel for the assessee submitted that this issue was a decided one in favour of the assessee in the assessee's own case for the A.Y. 2009-10. Per Contra, Ld. DR for the Revenue relied on the orders of the AO/CIT(A). However, he fairly submitted that this issue is covered one in favour of the assessee by virtue of order of the Tribunal. 16.2 Both the sides heard and perused the orders of the Revenue as well as the order of Tribunal in the assessee's own case for the A.Y. 2009-10. We proceed to reproduce the finding given by the Tribunal here as under : "59. On hearing both the sides, we find this issue has to be decided in favour of the assessee in view of the order of Tribunal (supra) in assessee's own case for the A.Y. 2008-09. For the sake of completeness, we proceed to extract the finding given by the Tribunal and the same reads as under : "26. On hearing both the parties on this issue, we find the decision in the case of Usha Martin Industries Ltd. (supra) helps the assessee. For the sake of completeness, we perused the said d....