2003 (12) TMI 36 - HC - Income Tax

Whether, Tribunal was right in law and had valid material in coming to the conclusion that the advertisement expenses claimed to have been shared by the assessee with M/s. Dynavision Ltd. and the difference in purchase price claimed by the assessee are in the nature of a contractual obligation and are, accordingly, allowable as expenditure? - Tribunal cannot be said to have erred in the view that it took. The question referred are answered in favour of the assessees and against the Revenue.

Summary

Issues Involved:
1. Whether the advertisement expenses shared by the assessee with M/s. Dynavision Ltd. and the difference in purchase price claimed by the assessee are allowable as expenditure for the assessment year 1992-93.
2. Whether the expenditure claimed by the assessee was a device to avoid tax on income earned by the assessee, in light of the Supreme Court's decision in McDowell and Co. Ltd.

Detailed Analysis:

Issue 1: Allowability of Advertisement Expenses and Purchase Price Difference
The court examined whether the advertisement expenses shared by the assessee with M/s. Dynavision Ltd. and the difference in purchase price claimed were allowable as expenditure. The assessees, who were agents of Dynavision, marketed 70% of the company's production. The company, facing financial strain due to a recessionary trend in the television market, had an agreement with the assessees to share marketing expenses and revise the purchase price for TV sets. The assessees agreed to bear 25% of the advertisement expenses and 30% of the travelling and conveyance expenses, with the company covering the remaining costs. Additionally, the assessees agreed to pay an extra Rs. 50 and Rs. 175 per set for 14" and 20" black and white TV sets, respectively.

The Assessing Officer disallowed these expenses, viewing them as a post-accounting exercise to reduce taxable profit. However, the Tribunal found that the agreement, recorded in a letter dated March 20, 1992, and followed by corresponding debit entries in the assessees' books, was not an unreal transaction. The Tribunal noted the company's declining production and sales, and the financial strain it faced. The Tribunal concluded that the expenses were incurred to equitably distribute the financial burden and were commercially expedient for the assessees, who had a vested interest in the company's continued functioning.

Issue 2: Alleged Tax Avoidance Device
The court also considered whether the expenditure was a device to avoid tax, referencing the Supreme Court's decision in McDowell and Co. Ltd. The Revenue argued that the assessees' actions were merely a paper exercise to reduce their tax burden, orchestrated by one of the partners who was also the managing director of the company. The Tribunal, however, found no evidence that the credited amounts returned to the assessees. It emphasized that the payments were commercially expedient and necessary for promoting the products and sustaining the business relationship with Dynavision.

The Tribunal observed that the company was not wholly owned or controlled by the partners of the assessee firms, despite some linkage. The payments made were not legally compelled but were commercially justified. The Tribunal concluded that the expenses were incurred to facilitate the business and preserve the income source, thus allowable as deductions.

Conclusion:
The Tribunal's decision was upheld, with the court finding that the expenses claimed by the assessees were allowable and not merely a device to avoid tax. The questions referred were answered in favor of the assessees and against the Revenue, affirming the commercial expediency and legitimacy of the claimed expenses.