2011 (10) TMI 194 - AT - Income Tax

FBT - Audio Music system, Television set, watches etc... to be treated as Sales Promotion and Publicity Expenses and taxed at 20% or be treated as Gift and taxed at 50% - Held - Gift is anything without consideration but in the present case various items were given in terms of trade scheme depending upon sales targets achieved by stockiest/ dealers. CBDT circular which are not in confirmity with statute cannot be relied upon. A specific provision has been made in regard to sales promotion and publicity expenses then it will override the general provision relating to gift. Therefore, expenditure on sales promotion including publicity would fall within the scope of the specific provision in clause (D) and not clause (O). We therefore, hold that the expenditure on gifts could not be treated as trade scheme or for promotion of company s product as per clause O of sub-section 2 of section 115WB. Appeal was allowed for statistical purpose.

Summary

Issues:
Interpretation of expenses on presents to stockists as gifts or sales promotion.

Detailed Analysis:
The appeal was against the Commissioner of Income Tax (Appeals) order for the assessment year 2006-07, focusing on whether presents to stockists should be considered as gifts or sales promotion expenses. The Fringe Benefits Tax return included presents to stockists, treated as advertising/sales promotion expenses by the assessee. However, the Assessing Officer deemed them as gifts based on CBDT Circular No. 8/2005. The ld. CIT(Appeals) upheld the AO's decision, considering the items as gifts despite carrying the assessee's name or logo. The appellant argued that the presents were given based on sales volumes, not as gifts, emphasizing they were for sales promotion and publicity under section 115WB(2)(D), not gifts under section 115WB(2)(O).

The ITAT analyzed the legislative provisions, noting that 20% of expenses on sales promotion are taxable fringe benefits, while 50% of gifts are taxable. The tribunal observed that the expenditure had a direct nexus with sales promotion and publicity, not fitting the definition of gifts given without consideration. The items carried the assessee's name or logo, serving as advertisement tools. Referring to CBDT Circular No. 8/2005, the ITAT disagreed with the interpretation that the expenditure was without consideration, as it was for sales promotion. The tribunal held that sales promotion expenses should be classified under clause (D) rather than gifts under clause (O), ensuring a lower tax burden for the assessee.

The ITAT highlighted legal principles, stating that circulars cannot override statutory provisions and must align with the law. Relying on Supreme Court precedents, the tribunal emphasized that specific statutory provisions on sales promotion expenses should prevail over general provisions on gifts. The ITAT concluded that the expenditure on gifts should not be treated as trade scheme or product promotion under clause (O) but as sales promotion under clause (D). As the issue was not adequately examined previously, the ITAT remanded the matter to the Assessing Officer for a fresh decision in accordance with the law.

In conclusion, the ITAT allowed the appeal filed by the assessee for statistical purposes, emphasizing the correct classification of expenses on presents to stockists as sales promotion rather than gifts, in line with the legislative intent and legal principles.