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2019 (7) TMI 862 - AT - Income TaxDisallowance of sales promotion expenses - distribution of costly articles /freebies to doctors and professionals - violation of CBDT circular no. 5/2012 dated 01.08.2012 and are against regulations issued by Medical Counsel of India - HELD THAT - In this view of the matter and consistent with view taken by the coordinate bench in assessee s own case for AY 2011-12 M/S ARISTO PHARMACEUTICALS PVT. LTD. VERSUS ASST. CIT-2 (1) MUMBAI AND VICE-VERSA 2018 (7) TMI 1883 - ITAT MUMBAI wherein it was held that in the absence of any sanction or authority of law on the basis of which it could safely be concluded that the assessee company which is engaged in the business of manufacturing and sale of pharmaceuticals and allied products, had in the garb of sales promotion expenses incurred expenditure in respect of articles distributed to the stockists, distributors, dealers, customers and doctors, for a purpose which is either an offence or prohibited by law, are thus of the considered view that such expenditure incurred by the assessee would not be hit by the Explanation to Sec. 37(1) We are of the considered view that there is no error in the findings recorded by the Ld.CIT(A) insofar as deletion of addition made by the AO towards sales promotion expenses and hence, we are inclined to uphold the findings of the CIT(A) and dismiss the appeal filed by the revenue. - Decided in favour of assessee.
Issues Involved:
1. Disallowance of sales promotion expenses. 2. Applicability of CBDT Circular No. 5/2012. 3. Violation of Medical Council of India (MCI) regulations. 4. Allowability of expenses under Section 37(1) of the Income-tax Act, 1961. Detailed Analysis: 1. Disallowance of Sales Promotion Expenses: The primary issue revolves around whether the expenses incurred by the assessee, a pharmaceutical company, on sales promotion articles can be allowed as deductions under Section 37(1) of the Income-tax Act, 1961. The assessee debited an amount of ?15,68,10,431 under 'sales promotional article expenses.' The Assessing Officer (AO) disallowed the entire amount, citing that the expenses were incurred in violation of the Medical Council of India (MCI) regulations and thus were not allowable as deductions. The CIT(A) partially allowed the expenses, disallowing only those exceeding ?750 per article, amounting to ?1,42,97,051, and allowing the balance ?14,25,13,380. 2. Applicability of CBDT Circular No. 5/2012: The AO relied on CBDT Circular No. 5/2012, which states that any freebies provided to doctors and other medical professionals by pharmaceutical companies are not allowable as deductions under Section 37(1) of the Income-tax Act, 1961. The CIT(A) and the Tribunal found that this circular, which extends the scope of MCI regulations to pharmaceutical companies, was not applicable to the assessee. The Tribunal observed that the circular could not impose a new burden or liability on pharmaceutical companies without any enabling provision under the Income Tax Act or MCI regulations. 3. Violation of Medical Council of India (MCI) Regulations: The AO disallowed the expenses based on the MCI regulations, which prohibit medical practitioners from accepting gifts, travel facilities, hospitality, or monetary grants from pharmaceutical companies. The Tribunal, however, noted that these regulations apply only to medical practitioners and not to pharmaceutical companies. The Tribunal referenced the Delhi High Court's decision in Max Hospital vs. MCI, which clarified that MCI's jurisdiction is limited to registered medical practitioners and does not extend to pharmaceutical companies. 4. Allowability of Expenses under Section 37(1) of the Income-tax Act, 1961: The Tribunal concluded that the expenses incurred by the assessee on sales promotion articles were wholly and exclusively for the purpose of business and thus allowable under Section 37(1) of the Income-tax Act, 1961. The Tribunal emphasized that the MCI regulations and the CBDT circular could not prohibit the pharmaceutical companies from incurring such expenses. The Tribunal cited its own decision in the assessee's case for AY 2011-12, where it had allowed similar expenses, and noted that there was no change in facts for the year under consideration. Conclusion: The Tribunal upheld the CIT(A)'s decision to allow the sales promotion expenses incurred on articles costing less than ?750 each and disallowed the expenses exceeding ?750 per article. The Tribunal dismissed the revenue's appeal and allowed the assessee's appeal, directing the AO to delete the addition sustained by the CIT(A). The Tribunal reiterated that the MCI regulations and the CBDT circular did not apply to pharmaceutical companies and that the expenses were allowable under Section 37(1) of the Income-tax Act, 1961.
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