2018 (8) TMI 1368 - HC - Income Tax

Disallowance of expenses - selling expenses - promotional expenses - expenses towards packaging material purchases - genuineness of the transactions - failure to deduct TDS u/s 194C/ 194H on selling expenses and promotional expenses - Disallowance u/s 40(a)(ia) - CIT(A) deleted the additions - ITAT confirmed the order of CIT(A) Held that - The Tribunal accepted the findings of the First Appellate Authority on the counts we have referred to in the preceding paragraphs. The Tribunal has analysed the provision of Section 194C and has given a specific finding that the said provision was not attracted in the subject case. So far as the assessee s claims for deduction in respect of packaging material expenses, sales promotional expenses as well as selling expenses, the Tribunal accepted the findings of the First Appellate Authority. Before the Tribunal, it was urged on behalf of the Revenue that the distributors to whom incentives were paid could not be sent notices under Section 133(6) as the assessee had not provided complete address. This submission was made in support of Revenue s stand that the recipients thereof were not genuine. But in the appendage to the assessment order, to which we have referred to earlier, there is specific reference to such notices being sent. The Tribunal further found that there was no violation of Section 194H of the Act as the transactions involved were all purchases and sales. There was no actual transaction between the parties for the target incentives and only credit notes were provided to the distributors who had achieved the target which they could redeem at the time of subsequent purchases. Decided in favour of assessee.

Summary

Issues Involved:
1. Disallowance of deductions claimed for selling expenses.
2. Disallowance of deductions claimed for sales promotional expenses.
3. Disallowance of deductions claimed for packaging material purchases.
4. Requirement of tax deduction at source (TDS) under Section 194C and Section 194H of the Income Tax Act, 1961.

Issue-wise Analysis:

1. Disallowance of Deductions Claimed for Selling Expenses:
The Assessing Officer (AO) disallowed the deduction of ?4,19,23,214/- claimed as selling expenses, questioning the genuineness of the transactions and the existence of the recipients. The AO also argued that these expenses should be added back to the assessee's income due to non-deduction of tax at source under Section 194H. The First Appellate Authority found no material to doubt the genuineness of the payments or their business expediency, noting that the AO had not pointed out any defects in the books of accounts or provided a show cause notice. The Tribunal confirmed these findings, stating that the transactions were on a principal-to-principal basis and did not fall under Section 194H, thus no TDS was required.

2. Disallowance of Deductions Claimed for Sales Promotional Expenses:
The AO disallowed ?88,85,919/- claimed as sales promotional expenses, treating them as commission or brokerage and asserting that TDS should have been deducted under Section 194H. The First Appellate Authority rejected this, stating that the expenses were for purchasing items for distribution to boost sales, not commission. It was held that there was no principal-agent relationship, and thus Section 194H was not applicable. The Tribunal upheld this view, emphasizing that the transactions were sales, and the incentives were given through credit notes, not cash payments.

3. Disallowance of Deductions Claimed for Packaging Material Purchases:
The AO disallowed ?4,04,12,991/- for packaging material purchases, treating the transactions as works contracts requiring TDS under Section 194C. The First Appellate Authority disagreed, stating that the materials were purchased outright, with excise duty and VAT paid, and were not supplied by the assessee but manufactured by suppliers as per specifications. The Tribunal confirmed this, referring to the definition of "work" in Section 194C and concluding that the transactions were contracts for sale, not works contracts, thus outside the purview of Section 194C.

4. Requirement of Tax Deduction at Source (TDS) Under Section 194C and Section 194H:
The AO argued that the assessee failed to deduct TDS on selling and promotional expenses under Section 194H and on packaging material purchases under Section 194C. The First Appellate Authority and the Tribunal both found that these sections were not applicable. For Section 194H, it was concluded that there was no principal-agent relationship, and for Section 194C, it was determined that the transactions were sales contracts, not works contracts. The Tribunal's analysis was based on the factual nature of the transactions and supported by judicial precedents.

Conclusion:
The High Court affirmed the Tribunal's decision, agreeing that the transactions in question did not attract TDS provisions under Sections 194C and 194H. The Court found no perversity in the factual analysis and upheld the findings of the First Appellate Authority and the Tribunal. Consequently, the appeal was dismissed, and there was no question of law involved. The stay petition was also dismissed, with no order as to costs.