2017 (1) TMI 771 - AT - Income Tax

Admissibility of expenditures incurred by the assessee (a pharmaceutical company)u/s 37 - Held that - From the perusal of the nature of expenditure incurred by the assessee, it is seen that under the head Customer Relationship Management , the assessee arranges national level seminar and discussion panels of eminent doctors and inviting of other doctors to participate in the seminars on a topic related to therapeutic area. It arranges lectures and sponsors knowledge upgrade course which helps pharmaceutical companies to make aware of the products and medicines manufactured and launched by it. Under Key Account Management, the assessee makes endeavour to create awareness amongst certain class of key doctors about the products of the assessee and the new developments taking place in the area of medicine and providing correct diagnosis and treatment of the patients. The said activities by the assessee are to make the doctors aware of its products and research work carried out by it for bringing the medicine in the market and its results are based on several levels of tests and approvals. Unless the pharmaceutical companies make aware of such kind of products to key doctors or medical practitioners, then only it can successfully launch its products/medicines. This kind of expenditure is definitely in the nature of sales and business promotion, which has to be allowed. Coming to the gift articles and free samples of medicines, it is seen that the assessee gives various kind of articles like, diaries, pen sets, calendars, paper weights, injection boxes etc. embossed with bold logo of its brand name and the product name so that the doctors remembers the brand of the assessee and also the name of the medicine. All the gift articles, as pointed out by the assessee before the authorities below and also before us are very cheap and low cast articles which bears the name of assessee and it is purely for the promotion of its product, brand reminder, etc. These articles cannot be reckoned as freebies given to the doctors. Even the free sample of medicine is only to prove the efficacy and to establish the trust of the doctors on the quality of the drugs. This again cannot be reckoned as freebies given to the doctors but for promotion of its products. The pharmaceutical company, which is engaged in manufacturing and marketing of pharmaceutical products, can promote its sale and brand only by arranging seminars, conferences and thereby creating awareness amongst doctors about the new research in the medical field and therapeutic areas, etc. Every day there are new developments taking place around the world in the area of medicine and therapeutic, hence in order to provide correct diagnosis and treatment of the patients, it is imperative that the doctors should keep themselves updated with the latest developments in the medicine and the main object of such conferences and seminars is to update the doctors of the latest developments, which is beneficial to the doctors in treating the patients as well as the pharmaceutical companies. Further as pointed out and concluded by the learned CIT(A) there is no violation by the assessee in so far as giving any kind of freebies to the medical practitioners. Thus, such kind of expenditures by a pharmaceutical companies are purely for business purpose which has to be allowed as business expenditure and is not impaired by EXPLANATION 1 to section 37(1). - Decided in favour of assessee

Summary

Issues Involved:
1. Disallowance of expenses related to freebies given by the assessee to doctors.
2. Applicability of Medical Council of India (MCI) regulations to pharmaceutical companies.
3. Validity and retrospective applicability of CBDT Circular No. 5/2012.

Issue-wise Detailed Analysis:

1. Disallowance of Expenses Related to Freebies Given by the Assessee to Doctors:
The Revenue challenged the deletion of ?22,99,72,607/- disallowed by the AO, arguing that such freebies are prohibited by MCI regulations and are not allowable under Explanation to Section 37(1) of the Income-tax Act, 1961. The assessee, a pharmaceutical company, claimed these expenses under categories like 'Customer Relationship Management expenses' (CRM), 'Key Account Management expenses' (KAM), gift articles, and cost of samples. The AO disallowed these expenses, citing the CBDT Circular No. 5/2012 and the MCI regulations prohibiting medical practitioners from accepting gifts, travel facilities, hospitality, and monetary grants from pharmaceutical companies.

2. Applicability of Medical Council of India (MCI) Regulations to Pharmaceutical Companies:
The CIT(A) and the Tribunal both held that the MCI regulations are meant for medical practitioners and not for pharmaceutical companies. The Tribunal referenced the Delhi High Court judgment in Max Hospital vs. MCI, where it was clarified that MCI regulations apply only to medical practitioners and not to the healthcare sector industry. The Tribunal emphasized that the MCI regulations do not have jurisdiction over pharmaceutical companies, and thus, there is no violation of any law by the assessee in incurring such expenses.

3. Validity and Retrospective Applicability of CBDT Circular No. 5/2012:
The Tribunal noted that the CBDT Circular dated 01.08.2012 cannot have retrospective effect for the assessment year 2010-11. The Circular, which interprets the MCI regulations to apply to pharmaceutical companies, was deemed to have overstepped its jurisdiction. The Tribunal cited the principle that a circular imposing a new burden cannot be applied retrospectively. The Tribunal also referenced the decision in Syncom Formulations (I) Ltd., where it was held that the CBDT Circular would not apply to the assessment years 2010-11 and 2011-12.

Conclusion:
The Tribunal upheld the CIT(A)'s decision to delete the disallowance of ?22,99,72,607/-, concluding that the expenses were incurred for business promotion and not as prohibited freebies. The MCI regulations were found to be applicable only to medical practitioners, and the CBDT Circular could not retrospectively apply to the assessment year in question. The appeal filed by the Revenue was dismissed.