2017 (2) TMI 800 - AT - Income Tax

Re-opening of assessment u/s 147 - assessee was not eligible to set off the business loss and depreciation of the amalgamated company - Held that - It is not in dispute that the assessment was re-opened within a period of four years from the end of the relevant assessment year. Moreover, the so called business loss and depreciation of the amalgamated company namely M/s.TTK Biomed Ltd. and TTK Medical Devices Ltd. was not considered by the assessing officer. Therefore, this Tribunal is of the considered opinion that the assessment was rightly re-opened by the assessing officer. Therefore, this Tribunal do not find any reason to interfere with the order of the lower authority and the same is confirmed. Carry forward of loss - Held that - An identical issue was disallowed by this Tribunal in view of the decision of this Tribunal in the assessee s own case for the assessment year 2004-05. Therefore, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly, the same is confirmed. Disallowance of gift - Held that - The citizen of this country deserves better medical treatment. The medical treatment shall be made available by the state at a reasonable cost. The practice of marketing the drugs or medical devices on extraneous consideration cannot be allowed to continue any further. Therefore, the gift said to be given by the assessee is against the public policy. Hence, even if the so called gift is genuine transaction, the same cannot be allowed as business expenditure under Section 37 of the Income Tax Act. In the case before us, the genuineness of the gift is also not proved by the assessee by giving the name and address of the doctors to whom the gift was said to be given. Therefore, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly, the same is confirmed. Disallowance of logo charges - CIT-A allowed claim - Held that - Under Income Tax Act, the partnership firm is an independent and separate assessable unit. Therefore, the assessee obtained a license from M/s.T.T.Krishnamachari & Co., for using the logo (ttk). In pursuant to the agreement, the assessee has paid 0.5% of the sales as logo charges. This Tribunal examined the agreement for the assessment year 2008-09 and found that the logo charges paid by the assessee are revenue expenditure. Accordingly, confirmed a similar order of the CIT(A). In view of the order of this Tribunal for the assessment year 2008-09 in the assessee s own case allowing a similar payment of logo charges as revenue expenditure, this Tribunal do not find any reason to interfere with the order of the CIT(A) Depot charges paid at 3% of the sales - Held that - Payment of depot charges at 3% of the sales are reasonable and not excessive

Summary

Issues:
1. Re-opening of assessment under Section 147 of the Income Tax Act.
2. Carry forward of loss of M/s.TTK Biomed Ltd.
3. Disallowance of gift given to medical practitioners for promoting products.
4. Disallowance of logo charges.
5. Depot charges paid to M/s.TTK & Co.

Re-opening of Assessment:
The assessing officer re-opened the assessment under Section 147 due to the assessee not being eligible to set off business loss and depreciation of the amalgamated company. The Tribunal upheld the re-opening as it was done within four years and relevant aspects were not considered initially. The Tribunal found no reason to interfere with the lower authority's decision.

Carry Forward of Loss:
The issue of carry forward of loss of M/s.TTK Biomed Ltd. was considered, and the Tribunal referred to previous decisions against the assessee. The Tribunal upheld the disallowance based on earlier rulings, finding no grounds for interference.

Disallowance of Gift to Medical Practitioners:
The Tribunal analyzed the claim of gifts given to medical practitioners for promoting products. It highlighted regulations prohibiting such practices and emphasized the need to verify the genuineness of the gifts. The Tribunal held that the gifts were against public policy and Article 21 of the Constitution, as they aimed to influence medical practitioners. Due to lack of proof of genuineness, the Tribunal confirmed the lower authority's decision.

Disallowance of Logo Charges:
Regarding logo charges, the Tribunal examined the agreement between the assessee and M/s.T.T.Krishnamachari & Co. The Tribunal considered previous rulings and confirmed the logo charges as revenue expenditure based on the agreement, finding no reason to interfere with the lower authority's decision.

Depot Charges:
The issue of depot charges paid to M/s.TTK & Co. at 3% of sales was discussed. The assessing officer restricted the charges to 2%, but the CIT(A) allowed 3% based on previous decisions. The Tribunal upheld the CIT(A)'s decision, considering the charges reasonable and not excessive, in line with previous rulings.

In conclusion, all appeals filed by both the assessee and the revenue were dismissed by the Tribunal in its order pronounced on 25th November 2016 at Chennai.