2014 (9) TMI 732 - HC - Income Tax

Advertisement and marketing expenses Trading expenses or not - Held that - The Tribunal has rightly noticed and referred to Commissioner of Income Tax Vs. Pepsico India Cold Drink Ltd. 2012 (6) TMI 256 - DELHI HIGH COURT - the assessee is entitled to claim deferred revenue expenditure but the AO cannot treat the revenue expenditure as deferred revenue expenditure - the Act itself does not have any concept of deferred revenue expenditure - advertisements do not leave a long lasting and permanent effect in the sense that the product or service has to be repeatedly advertised - Even otherwise advertisement expense is a day to day expense incurred for running the business and improving sales - every year, the assessee has been incurring substantial expenditure on advertisements - Keeping in view the nature and character of the assessee s business, every year expenditure has to be incurred to make and keep public informed, aware and remain in limelight - This requires continuous and repeated publicity and advertisements to remain in public eye, to do business by attracting customers - It is an expenditure of trading nature thus, the order of the Tribunal is upheld Decided against revenue.

Summary

Issues:
1. Disallowance of 25% expenditure on advertisement and marketing expenses.
2. Treatment of advertisement expenditure as deferred revenue expenditure.
3. Initiation of penalty proceedings under Section 271(1)(c) of the Income Tax Act, 1961.

Analysis:

Issue 1: Disallowance of 25% expenditure on advertisement and marketing expenses
The Tribunal upheld the CIT(A)'s decision to allow the entire expenditure on advertisement and marketing as a revenue expenditure. The Tribunal reasoned that the expenses were wholly and exclusively for the business of the assessee and not capital or personal expenses. The Tribunal referred to various legal precedents and highlighted that advertisement and marketing expenses are essential for brand building and meeting competition in the market. The Tribunal emphasized that such expenses are revenue in nature and not deferred revenue expenditure. The High Court affirmed the Tribunal's decision, stating that the expenditure was necessary for the business to attract customers and remain competitive.

Issue 2: Treatment of advertisement expenditure as deferred revenue expenditure
The Assessing Officer treated a portion of the advertisement expenditure as deferred revenue expenditure, disallowing 25% of the total amount. However, the Tribunal disagreed with this treatment, emphasizing that the Act does not recognize deferred revenue expenditure. The Tribunal highlighted that advertisement expenses are day-to-day expenses essential for running the business and improving sales. The High Court concurred with the Tribunal's view, noting that advertisements do not have a long-lasting effect and should be treated as revenue expenditure. The High Court cited previous judgments to support the treatment of advertisement expenses as revenue in nature.

Issue 3: Initiation of penalty proceedings under Section 271(1)(c) of the Income Tax Act, 1961
The Assessing Officer initiated penalty proceedings under Section 271(1)(c) of the Income Tax Act based on the addition of deferred revenue expenditure. However, since the High Court upheld the Tribunal's decision regarding the treatment of advertisement expenses as revenue expenditure, the penalty proceedings were not warranted. The High Court dismissed the appeal, concluding that the Tribunal's order did not require any interference, and affirmed the treatment of advertisement expenses as necessary for the business operation.

In summary, the High Court upheld the Tribunal's decision to treat the entire advertisement and marketing expenses as revenue expenditure, rejecting the notion of deferred revenue expenditure. The judgment emphasized the importance of advertisement expenses for brand building and business competitiveness, ultimately dismissing the appeal and penalty proceedings initiated by the Assessing Officer.