2011 (4) TMI 178 - AT - Income Tax

Disallowance - Cost of testers and merchant displays - There is a direct nexus between the expenses on testers and merchant display and in the business of the appellant it has to be necessarily incurred to meet the competition in the market and to sell its product which are high end and advertisement, promotion,. Incentive and freebies driven - That unless the appellant made the efficacy of its products known in the market its business would suffer.The ratio of the decision of the Delhi High Court in the case of CIT v. Salora International Ltd. 2008 -TMI - 32171 - DELHI HIGH COURT is also applicable to the present case - Decided in favour of assessee. Promotional expenses - the assessee company has given break up of the promotional expenses through the paper book on which remand report was called from the Assessing Officer. It is noted by the Ld. CIT(A) that the assessee company has categorized these expenses under three category. First category of expenses is those expenses on which tax was deducted and paid and the expenses incurred under this category is Rs.15,57,857/- In the light of these facts TDS was deducted and paid by the assessee on these expenses of Rs.15,57,857/-, no disallowance can be made u/s 40(a)(ia) of the Act and hence there is no infirmity in the order of Ld. CIT(A) regarding this part of deletion of disallowance. Legal expenses - The assessee has to explain each item for which bill has been raised by M/s Dua Associates and it has to be explained and satisfied that the same is not in connection with increase in capital or other capital related matters - Thereafter, the Assessing Officer should pass necessary order as per law after providing adequate opportunity of being heard to the assessee - This ground of the revenue is allowed for statistical purposes.

Summary

Issues Involved:
1. Disallowance of expenses on account of cost of testers and merchant displays.
2. Disallowance of promotional expenses.
3. Disallowance of legal expenses.

Issue-wise Detailed Analysis:

1. Disallowance of expenses on account of cost of testers and merchant displays:

The revenue challenged the deletion of expenses on testers and merchant displays amounting to Rs. 7,28,699/- and Rs. 15,216,720/- respectively, arguing that these expenses were for building goodwill and should be treated as capital expenses. The Assessing Officer (AO) had disallowed these expenses, considering them to be of enduring benefit to the business. However, the CIT(A) deleted this disallowance, stating that the nature of the expenditure in the appellant's business was essential for day-to-day operations and thus allowable as revenue expenditure. The CIT(A) also referenced the case of CIT v. Salora International Ltd., noting that the expenditure, even if giving an enduring benefit, was necessary for the business's competitive standing. The ITAT upheld the CIT(A)'s decision, stating that the expenses were essential for the business and had a direct nexus with it. The ITAT found no infirmity in the CIT(A)'s order and rejected the revenue's ground.

2. Disallowance of promotional expenses:

The revenue contested the deletion of promotional expenses amounting to Rs. 38,23,227/-, arguing that the assessee did not furnish complete details during the assessment proceedings, and the AO had noted the absence of TDS details on these expenses. The CIT(A) deleted the disallowance, categorizing the expenses into three parts: those on which tax was deducted and paid (Rs. 15,57,857/-), those on which tax was not required to be deducted (Rs. 21,34,680/-), and those where the amount paid to each person did not exceed Rs. 20,000/- (Rs. 1,30,693/-). The ITAT reviewed the CIT(A)'s findings and noted that the revenue could not controvert these findings. The ITAT found no infirmity in the CIT(A)'s order and rejected the revenue's ground.

3. Disallowance of legal expenses:

The revenue appealed against the deletion of legal expenses amounting to Rs. 1,17,830/-, arguing that these were incurred for consultation related to the increase of capital and other capital-related matters. The AO had disallowed these expenses under section 35D of the Income Tax Act. The CIT(A) deleted the disallowance, stating that section 35D was not applicable. However, the ITAT noted that the CIT(A) did not address the AO's primary objection that the expenses were related to capital increase. The ITAT found that the bill from M/s Dua Associates did not clarify whether the expenses were for capital-related matters. Consequently, the ITAT set aside the CIT(A)'s order on this issue and remanded the matter back to the AO for fresh consideration, instructing the AO to verify the nature of each expense item and pass a new order after providing the assessee an opportunity to be heard.

Conclusion:

The ITAT upheld the CIT(A)'s decision on the disallowance of expenses on testers and merchant displays and promotional expenses, rejecting the revenue's grounds. However, the ITAT remanded the issue of legal expenses back to the AO for a fresh decision, allowing the revenue's ground for statistical purposes. The appeal was thus partly allowed for statistical purposes.