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2012 (10) TMI 17 - AT - Income TaxAddition u/s 40A(2)(a) on account of excess payment by the assessee to the Parent Company GSK - apportionment of common cost - CIT(A) deleted the addition on ground that the stand taken by the AO in treating the payment made by the assessee as unreasonable was unsustainable and revenue neutral - Held that - AO has not brought on record any material to prove that payments made to GSK were not genuine or that GSK had not rendered services to the assessee. Comparable facts and figures, based on prevalent market rates, have not been brought on record to establish the basic requirement of invoking the provisions of the section that payments made by the assessee for the services availed were excessive or unreasonable. Hence, CIT(A) rightly deleted the dis-allowance. Dis-allowance for expenditure incurred on account of advertisement - As per AO assessee could not substantiate it why such expenses were necessary particularly when the assessee was paying consignment commission to the GSK for marketing of its products - Held that - First adjudicating authority has rightly deleted the addition on finding that the expenditure was fully supported by sufficient details, that the asessee had submitted complete details of the advertisement giveaways, that genuineness of incurring this expenditure was well proved. No infirmity found in order deleting the dis-allowance. Dis-allowance u/s 40(A)(2)(a) - marketing commission to parent company GSK - Held that - FAA has given a categorical finding that a separate agreement was entered into by the assessee with GSK for the purpose of marketing commission. Assessee had incurred the expenditure as per the said agreement. AO had not doubt the genuineness of the agreement. Though AO has held that marketing commission was excessive and justified as per the provisions of Sec. 40 A(2), yet he has not furnished any data for supporting his stand. Mere observing that payment is excessive is not sufficient to disallow the expenditure. It is not a fit case for applying section 40A(2). Deletion of dis-allowance upheld - Decided in favor of assessee
Issues Involved:
1. Deletion of addition under Section 40A(2)(a) for excess payment to the Parent Company. 2. Re-computation of disallowance under Section 14A. 3. Deletion of addition on account of Advertisement give away. 4. Deletion of disallowance of marketing commission under Section 40A(2)(a). Detailed Analysis: 1. Deletion of Addition under Section 40A(2)(a) for Excess Payment to the Parent Company: The appellant challenged the CIT(A)'s decision to delete the addition made by the AO under Section 40A(2)(a) concerning an excess payment of Rs. 47.28 lakhs to Glaxo SmithKline (GSK). The AO had apportioned common costs based on the turnover of the two companies, determining a 2.01% expenditure rate. The CIT(A) found this method incorrect, noting that the turnover of GSK and the appellant arose from distinct products and that both entities were taxed at the same rate, making the exercise revenue-neutral. The CIT(A) referenced the Supreme Court's decision in CIT vs. Glaxo SmithKline Asia (P) Ltd., concluding no tax evasion occurred. The Tribunal upheld the CIT(A)'s decision, emphasizing that the AO failed to provide evidence that the payments were excessive or unreasonable. 2. Re-computation of Disallowance under Section 14A: The AO disallowed Rs. 12.70 lakhs under Section 14A read with Rule 8D for earning tax-exempt income, which the CIT(A) directed to be re-computed reasonably. The Tribunal agreed with the CIT(A), noting that Rule 8D was not applicable for the year in question and that the CIT(A) had instructed the AO to act reasonably. The Tribunal restored the matter to the AO for a fair estimation of the expenditure related to tax-exempt income, dismissing the AO's appeal and partly allowing the assessee's cross-objection. 3. Deletion of Addition on Account of Advertisement Give Away: The AO disallowed Rs. 16.99 lakhs claimed by the assessee for advertisement give away, questioning the necessity of such expenses when the assessee was already paying consignment commission to GSK. The CIT(A) found the expenditure well-supported by sufficient details and genuine, thus deleting the addition. The Tribunal upheld the CIT(A)'s decision, stating that determining the necessity of an expenditure is the assessee's prerogative, not the AO's. The Tribunal also noted that the AO had allowed similar claims in subsequent years. 4. Deletion of Disallowance of Marketing Commission under Section 40A(2)(a): The AO disallowed Rs. 3.67 crores paid as marketing commission to GSK, arguing it was excessive under Section 40A(2)(a). The CIT(A) found that the AO had misinterpreted the common cost charges and ignored the separate agreement for marketing commission between the appellant and GSK. The Tribunal upheld the CIT(A)'s decision, noting that the AO did not provide data to support the claim of excessiveness and that the payment was made per the agreement, with no evidence of it being excessive or unreasonable. Conclusion: The Tribunal dismissed the Revenue's appeal and partly allowed the assessee's cross-objections, affirming the CIT(A)'s decisions on all grounds.
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