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TMI Blog2012 (6) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... there has been no evidence that the same could not be utilized - order of Tribunal is not sustainable - 230 of 2001 - - - Dated:- 27-7-2010 - KALYAN JYOTI SENGUPTA, KANCHAN CHAKRABORTY, JJ. JUDGMENT 1. This appeal was admitted by an order dated October 8, 2001, on the following substantial question of law : "Whether the findings of the Tribunal upholding the disallowance of 50 per cent. of the sales promotion expenses incurred in the assess- ment years 1990-91 (Rs. 10,20,808) and 1991-92 (Rs. 11,43,430) for free distribution of gift articles along with the appellant's product are based on any material or evidence and/or have been arrived at by ignoring and not considering the relevant material recorded and found by the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was genuine and the entire cost was allowed. Therefore, the first appellate authority deleted the 50 per cent. disallow- ance of the cost of the gift articles. 5. The learned Tribunal by the impugned judgment and order reversed the order of the Commissioner of Income-tax (Appeals) and restored the order of the Assessing Officer and thus the appeal has given rise the aforesaid question of law. 6. Dr. Pal submits that when the evidence and materials has been pro- duced before the Assessing Officer, on appreciation thereof, it was found that had been able to establish the appellant that the gift articles were pur- chased and there is no allegation that the same were not utilised nor dis- tributed for business promotion. Therefore, the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established on evidence that it was utilized by distribution of the same to the customers for business purposes. Therefore, the entire amount claimed by the assessee should have been allowed by not interfering with the judg- ment and order of the Commissioner of Income-tax (Appeals). He submits that the business expediency rather commercial expediency can only be adjudged by true assessee and not by the Revenue authorities who cannot sit in the arm chair of the trader to perceive the commercial expediency for determining whether the expenditure was wholly and exclusively meted out for the purpose of business of the assessee. The pertinent point is rea- sonableness of the amount of expenditure, and if has to be adjudged from the viewpoint of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) on the question of disallowance of expenditure. 13. Dr. Pal has rightly pointed out that on earlier occasion for the assess- ment year 1988-89 the assessee-company could not establish by producing evidence that the gift articles were purchased or the same were utilised for the purpose of promotion and growth of the business. Therefore, the judg- ment based on fact earlier should not be a binding precedent to be followed by the learned Tribunal. We find considerable force in the sub- mission that reason for disallowance of fifty per cent. on earlier occasion was not established by adducing cogent evidence that there has been pur- chase of the gift articles and the same were utilised for promotion and growth of business so as to bring t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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