ADITYA MEDISALES LIMITED,,VADODARA vs. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(1)(1),, VADODARA

& 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 3 - 2.3 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the provisions of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, are not applicable to the pharmaceutical companies and therefore, any expenditure incurred on providing discounts to doctors ought to be allowed as business expenditure u/s 37(1). 2.4 The Ld. CIT(A) grossly erred in relying on the CBDT Circular No, 05/2012 dated 1" August, 2012 while disallowing the amount of expenditure without appreciating that the CBDT Circulars are not binding on the Appellant.

3. Re: Disallowance u/s. 14A read with tule 8D of Rs. 7.24.182/- 3.1 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in upholding the action of the Assessing Officer in disallowing administrative expenses u/s 14A by invoking Rule 8D without first recording satisfaction with regard to correctness of claim of the Appellant and as to how the disallowance carried out by the Appellant amounting to Rs. 50,000/- was not reasonable. 3.2 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have appreciated mat once it is undisputed that the Appellant had sufficient interest free funds to make the investments and that the Appellant had not incurred any expense to earn exempt income, disallowance u/s 14A read with rule 8D cannot be invoked. 3.3 Without prejudice to the above, the Ld. CIT(A) grossly erred in not rectifying the errors in calculating amount of disallowance u/s 14A read with rule 8D.

4. Re: Levy of interest u/s. 234D: 4.1 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) grossly erred in not directing the Assessing Officer to rectifying the error in computational interest u/s.234D.”

5. Ground No.1 is general in nature.

6. Ground No.2 concerns disallowance of discount offered to Doctors amounting to Rs.17,43,519/-.

6.1 Identical issue has come up in assessee’s own case in 3049/Ahd/2014, 2511, 3415, 2512 & 2513/Ahd/2015 & Ors. order dated 29.03.2019concerning AYs. 2008-09 to 2011-12. The relevant operative para concerning AY 2009-10 dealing with issue reads as under: & 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 4 -

“11.9 We have carefully considered the rival submissions on the issue. The maintainability of discount on sales is in question. It is the case of the Revenue that the assessee is supplying medicines to its C&F agents for its ultimate sale in the market for consumption. The discounts were given by the assessee company to the distributors, retailers, dealers, Doctors associated to C&F agent and who were not directly dealing with assessee and therefore expenses incurred towards discount payment by the assessee has no nexus with the sales made by it to the C&F agents. The AO accordingly is of the view that such indirect discounts to the customers of its agents are not allowable expenditure.

11.10 We do not see any iota of merit in such plea. The discounts given to the customers/ultimate consumer has direct bearing on the potential turnover of the company. It is well settled that the test of the commercial expediency cannot be reduced to the shape of a ritualistic formula nor can it be put in a water tight compartment. It is trite that the Revenue authorities have to place themselves in the position of a business and find out whether expenses incurred can be said to have been laid out for the purposes of businessman. The commercial expediency and prudence are inseparable. If the expenditure is incurred to facilitate carrying on of business of the assessee and is supported by the commercial expediency, it does not matter that the payment is in voluntarily or not necessary or that it also enures to the benefit of a third party. If the object is business promotion, the expenditure can be said to be wholly and exclusively for the purposes of the assessee’s business. The assessee in the instant case demonstrated on facts that payment of such discounts are integrally connected to the sales/turn over achieved or has potential to achieve. The discount expenses have thus been incurred with the object of furthering the trade or business interest of the assessee. Therefore, such expense falls within the expression ‘wholly and exclusively’ referred to in Section 37 of the Act. Therefore, we have no hesitation to concur with the conclusion drawn by the CIT(A) for allowability of discounts given to stockiests/distributors etc. However, we are unable to understand the reasoning of the CIT(A) for discarding the claim of discount expenditure paid to the Doctors. When the test of commercial expediency applied in its natural perspective, there is no reason to exclude Doctors purchasing medicines from C&F agents for the purpose of eligibility of discount payments. We thus set aside the action of the CIT(A) to this extent and direct the AO to allow the trade discount paid to all parties including Doctors as ordinary business expenditure. Thus, Ground No.2 of the Revenue’s appeal is dismissed. As a corollary, Ground No.1 of the assessee’s appeal in stands allowed.”

6.2. In the light of the view taken in the earlier assessment years, the disallowance of discount offered to Doctors is uncalled for. & 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 5 -

7. Ground No.2 of the assessee’s appeal is allowed.

8. Ground No.3 of the assessee’s appeal concerns disallowance of administrative expenditure amounting to Rs.7,24,182/- calculated in terms of Rule 8D(2)(iii) r.w.s. 14A of the Act.

8.1 When the matter was called for hearing, the learned Senior Counsel for the assessee sought limited direction for computation of disallowance of administrative expenses only with reference to investments which have actually yielded exempt income in tune with ACIT vs. Vireet Investments Ltd. 165 ITD 27 (SB).

8.2 Identical issue has been dealt with by the ITAT in 3049/Ahd/2014 & Ors. concerning AY 2008-09 to 2011-12. The relevant operative para concerning AY 2010-11 in para no. 18.4 of the order dealing with the issue reads as under:

“18.4 Turning to the cross grievance of the assessee disallowance sustained under s.14A of the Act, we observe that the assessee suo motu has disallowed Rs.50,000/- for earning of exempt income which is rightly reckoned to be direct expenditure under Rule 8D(2)(i) of the Rules in the absence of any supporting material to the contrary. The Revenue authorities, in our view, have also rightly invoked formula under Rule 8D(2)(iii) for disallowance of management and general expenses deemed to be attributable to tax free income. However, the disallowance is required to be computed having regard to the investments which has actually yielded exempt income instead of gross investments in consonance with the decision of the Special Bench in Vireet Investments (supra) as placed on behalf of the assessee. The issue is therefore remitted back to the file of the AO for re-computation of disallowance under Rule 8D(2)(iii) of the Rules. In terms of the averments made above, the Ground No.3 of the Revenue’s appeal is dismissed whereas cross ground no.2 of the assessee’s appeal on this score is allowed in part. “

8.3 In the identical facts, the issue in the instant assessment year is also remitted back to the file of the AO for re-computation of disallowance under Rule 8D(2)(iii) of the IT Rules with reference to & 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 6 - these investments which have actually yielded exempt income instead of gross investments.

9. Ground No.3 of the assessee’s appeal is partly allowed.

10. In the result, appeal filed by assessee is partly allowed. -AY-2013-14 (Revenue’s appeal)

11. The grounds of appeal raised by the assessee read as under:-

“1. On the facts and circumstances of the case and in law, the Ld.CIT(A) erred in allowing the interest of Rs. 14,98,46,433/- by treating it as business expenditure ignoring the fact on record that the transaction between Aditya Medisales Ltd. & M/s. Sun Pharmaceutical Industries Ltd. is not a transaction between 2 unrelated parties as the controlling person in both the company is same i.e. Mr. Dilip Shanghvi as per the Audit report u/s. 44AB in form 3CD for A.Y.2013-14 submitted by the assessee.

2. On the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in partly allowing the appeal on disallowance u/s 14A of the Income tax Act, 1961, without appreciating the fact that the disallowance is rightly made as per provisions of Rule 8D by the AO.”

12. Ground No.1 of the Revenue’s appeal concerns eligibility of interest expenditure incurred by the assessee as business expenditure delayed payment of trading liability.

12.1 The issue is not longer res integra came up for adjudication in 3049/Ahd/2014 & Ors. concerning AY 2008-09 to 2011-12. The relevant para in AY 2009-10 in para no. 10.6 dealing with issue in dispute is reproduced hereunder:

“10.6 In parity with the decision of the co-ordinate bench, we are in agreement with the plea of the assessee that merely because the assessee company is paying huge interest on outstanding credit balance to Sun Pharma while no interest is being charged by the assessee from its debtors cannot be the justifiable reason for resorting to the disallowance of interest. As pointed out on behalf of & 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 7 - the assessee, we also note that the Hon’ble Gujarat High court has also approved the order of the ITAT concerning AYs 1997-98 in CIT vs. Aditya Medisales Ltd. Tax Appeal No. 559 of 2009 judgment dated 04.05.2010 towards deletion of disallowance made on account of excess interest payment under s.40A(2)(a) of the Act. Thus, the issue stands concluded in favour of the assessee by the jurisdictional High Court. The issue having been already examined in the earlier years, we do not see any reason to look afresh. Therefore, we decline to interfere with the order of the CIT(A) in this regard. Consequently, Ground No.1 of the Revenue’s appeal is dismissed.”

12.2 In parity with the view already taken in the identical circumstances, we find no error in decision rendered by the CIT(A). We therefore decline to interfere.

13. Ground No.1 of Revneue’s appeal is dismissed.

14. Ground No.2 of the Revenue’s appeal concerns partial reversal of disallowance under s.14A of the Act with reference to interest expenditure disallowed under Rule 8D amounting to Rs.83,33,086/-.

15. We find no merit in the grievance of the Revenue in the light of the fact that the claim of the assessee towards sufficient interest free funds to carry out investments in excess of the corresponding investments not been rebutted by the Revenue. The investments holding the potential to yield tax free income stands at Rs.16.42 Crores whereas the own interest free funds by way of share capital and reserves stands at Rs.116.50 Crores. Therefore, in such a scenario, no disallowance under Rule 8D(2)(ii) is permissible in the light of decision of the Hon’ble Gujarat High Court in case of CIT vs. UTI Bank Ltd. [2013] 32 taxmann.com 370 (Guj); CIT vs. HDFC Bank Ltd. 366 ITR 505 (Bom.) and Reliance Utilities & Power Ltd. [2009] 313 ITR 340 (Bom.). Hence, we decline to interfere with the decision rendered by the CIT(A) on this score. & 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 8 -

16. Ground No.2 of Revenue’s appeal is accordingly dismissed.

17. In the result, appeal filed by Revenue is dismissed.

18. In the combined result, appeal of the assessee is partly allowed and Revenue’s appeal is dismissed.

This Order pronounced in Open Court on 09/07/2019

Sd/- Sd/- (RAJPAL YADAV) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad: Dated 09/07/2019 True Copy S. K. SINHA आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाइल / Guard file. By order/आदेश से,

उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद ।

आयकर अपील�य अ�धकरण, अहमदाबाद �यायपीठ ‘A’ अहमदाबाद । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD

BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER आयकर अपील सं./ (�नधा�रण वष� / Assessment Year : 2013-14)

Aditya Medisales Limited Deputy Commissoner of बनाम/ 402, 4th Floor, R. K. Income Tax Vs. Center, Fatehgunj, Cricle-1(1)(1), Vadodara - Vadodara - 390002 390007 �थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AABCA9317J (Appellant) .. (Respondent) & आयकर अपील सं./I.T.A. No. 2026/Ahd/2017 (�नधा�रण वष� / Assessment Year : 2013-14)

The Asst. CIT M/s. Aditya Medisales बनाम/ Cricle-1(1)(1), Vadodara Limited Vs. 1st Floor, Aaykar Bhavan, 402, 4th Floor, R. K. Race Course Circle, Center, Fatehgunj Main Vadodara - 390007 Road, Fatehgunj, Vadodara - 390002 (Appellant) .. (Respondent)

Shri S. N. Soparkar, A.R. अपीलाथ� ओर से /Assessee by : राज�व क� ओर से/Revenue by : Smt. Aparna Agrawal, CITD.R. & Shri S. K. Dev, Sr.D.R. सुनवाई क� तार�ख / Date of 04/07/2019 Hearing घोषणा क� तार�ख /Date of 09/07/2019 Pronouncement & 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 2 -

आदेश/O R D E R

PER PRADIP KUMAR KEDIA - AM:

The captioned cross appeals have been filed by the assessee as well as by Revenue against the order of the Commissioner of Income Tax (Appeals)-1, Vadodara (‘CIT(A)’ in short), dated 12.06.2017 emanating from the assessment order dated 30.03.2016 passed by the Assessing Officer (AO) under s. 143(3) of the Income Tax Act, 1961 (the Act) concerning assessment year 2013-14.

(Assessee’s appeal)

“1. The order passed by the Learned Commissioner of Income-tax (Appeals) [hereinafter referred to as 'the Ld. CIT(A)'] is bad in law and on facts.

2. Re: Disallowance of discount offered to doctors - Rs. 17,43,519/- 2.1 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has grossly erred in confirming the disallowance of Rs. 17,43,519/- made by the Assessing Officer by merely relying on the order of its predecessor for AY 2012-13 without appreciating that the discounts were offered to medical professionals for promoting the Appellant's business and that the expenses were wholly and exclusively incurred for the purposes of its business. 2.2 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) grossly erred in not appreciating that the said discounts have been given to medical professionals, in terms of the Appellant's universal discount policy, for dispensing medicines and acting as pharmacists in the course of their medical practice and therefore cannot be painted as illicit gratitude payments.

& 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 3 - 2.3 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the provisions of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, are not applicable to the pharmaceutical companies and therefore, any expenditure incurred on providing discounts to doctors ought to be allowed as business expenditure u/s 37(1). 2.4 The Ld. CIT(A) grossly erred in relying on the CBDT Circular No, 05/2012 dated 1" August, 2012 while disallowing the amount of expenditure without appreciating that the CBDT Circulars are not binding on the Appellant.

3. Re: Disallowance u/s. 14A read with tule 8D of Rs. 7.24.182/- 3.1 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in upholding the action of the Assessing Officer in disallowing administrative expenses u/s 14A by invoking Rule 8D without first recording satisfaction with regard to correctness of claim of the Appellant and as to how the disallowance carried out by the Appellant amounting to Rs. 50,000/- was not reasonable. 3.2 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have appreciated mat once it is undisputed that the Appellant had sufficient interest free funds to make the investments and that the Appellant had not incurred any expense to earn exempt income, disallowance u/s 14A read with rule 8D cannot be invoked. 3.3 Without prejudice to the above, the Ld. CIT(A) grossly erred in not rectifying the errors in calculating amount of disallowance u/s 14A read with rule 8D.

4. Re: Levy of interest u/s. 234D: 4.1 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) grossly erred in not directing the Assessing Officer to rectifying the error in computational interest u/s.234D.”

6.1 Identical issue has come up in assessee’s own case in 3049/Ahd/2014, 2511, 3415, 2512 & 2513/Ahd/2015 & Ors. order dated 29.03.2019concerning AYs. 2008-09 to 2011-12. The relevant operative para concerning AY 2009-10 dealing with issue reads as under: & 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 4 -

“11.9 We have carefully considered the rival submissions on the issue. The maintainability of discount on sales is in question. It is the case of the Revenue that the assessee is supplying medicines to its C&F agents for its ultimate sale in the market for consumption. The discounts were given by the assessee company to the distributors, retailers, dealers, Doctors associated to C&F agent and who were not directly dealing with assessee and therefore expenses incurred towards discount payment by the assessee has no nexus with the sales made by it to the C&F agents. The AO accordingly is of the view that such indirect discounts to the customers of its agents are not allowable expenditure.

11.10 We do not see any iota of merit in such plea. The discounts given to the customers/ultimate consumer has direct bearing on the potential turnover of the company. It is well settled that the test of the commercial expediency cannot be reduced to the shape of a ritualistic formula nor can it be put in a water tight compartment. It is trite that the Revenue authorities have to place themselves in the position of a business and find out whether expenses incurred can be said to have been laid out for the purposes of businessman. The commercial expediency and prudence are inseparable. If the expenditure is incurred to facilitate carrying on of business of the assessee and is supported by the commercial expediency, it does not matter that the payment is in voluntarily or not necessary or that it also enures to the benefit of a third party. If the object is business promotion, the expenditure can be said to be wholly and exclusively for the purposes of the assessee’s business. The assessee in the instant case demonstrated on facts that payment of such discounts are integrally connected to the sales/turn over achieved or has potential to achieve. The discount expenses have thus been incurred with the object of furthering the trade or business interest of the assessee. Therefore, such expense falls within the expression ‘wholly and exclusively’ referred to in Section 37 of the Act. Therefore, we have no hesitation to concur with the conclusion drawn by the CIT(A) for allowability of discounts given to stockiests/distributors etc. However, we are unable to understand the reasoning of the CIT(A) for discarding the claim of discount expenditure paid to the Doctors. When the test of commercial expediency applied in its natural perspective, there is no reason to exclude Doctors purchasing medicines from C&F agents for the purpose of eligibility of discount payments. We thus set aside the action of the CIT(A) to this extent and direct the AO to allow the trade discount paid to all parties including Doctors as ordinary business expenditure. Thus, Ground No.2 of the Revenue’s appeal is dismissed. As a corollary, Ground No.1 of the assessee’s appeal in stands allowed.”

6.2. In the light of the view taken in the earlier assessment years, the disallowance of discount offered to Doctors is uncalled for. & 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 5 -

8.1 When the matter was called for hearing, the learned Senior Counsel for the assessee sought limited direction for computation of disallowance of administrative expenses only with reference to investments which have actually yielded exempt income in tune with ACIT vs. Vireet Investments Ltd. 165 ITD 27 (SB).

8.2 Identical issue has been dealt with by the ITAT in 3049/Ahd/2014 & Ors. concerning AY 2008-09 to 2011-12. The relevant operative para concerning AY 2010-11 in para no. 18.4 of the order dealing with the issue reads as under:

“18.4 Turning to the cross grievance of the assessee disallowance sustained under s.14A of the Act, we observe that the assessee suo motu has disallowed Rs.50,000/- for earning of exempt income which is rightly reckoned to be direct expenditure under Rule 8D(2)(i) of the Rules in the absence of any supporting material to the contrary. The Revenue authorities, in our view, have also rightly invoked formula under Rule 8D(2)(iii) for disallowance of management and general expenses deemed to be attributable to tax free income. However, the disallowance is required to be computed having regard to the investments which has actually yielded exempt income instead of gross investments in consonance with the decision of the Special Bench in Vireet Investments (supra) as placed on behalf of the assessee. The issue is therefore remitted back to the file of the AO for re-computation of disallowance under Rule 8D(2)(iii) of the Rules. In terms of the averments made above, the Ground No.3 of the Revenue’s appeal is dismissed whereas cross ground no.2 of the assessee’s appeal on this score is allowed in part. “

8.3 In the identical facts, the issue in the instant assessment year is also remitted back to the file of the AO for re-computation of disallowance under Rule 8D(2)(iii) of the IT Rules with reference to & 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 6 - these investments which have actually yielded exempt income instead of gross investments.

“1. On the facts and circumstances of the case and in law, the Ld.CIT(A) erred in allowing the interest of Rs. 14,98,46,433/- by treating it as business expenditure ignoring the fact on record that the transaction between Aditya Medisales Ltd. & M/s. Sun Pharmaceutical Industries Ltd. is not a transaction between 2 unrelated parties as the controlling person in both the company is same i.e. Mr. Dilip Shanghvi as per the Audit report u/s. 44AB in form 3CD for A.Y.2013-14 submitted by the assessee.

2. On the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in partly allowing the appeal on disallowance u/s 14A of the Income tax Act, 1961, without appreciating the fact that the disallowance is rightly made as per provisions of Rule 8D by the AO.”

12.1 The issue is not longer res integra came up for adjudication in 3049/Ahd/2014 & Ors. concerning AY 2008-09 to 2011-12. The relevant para in AY 2009-10 in para no. 10.6 dealing with issue in dispute is reproduced hereunder:

“10.6 In parity with the decision of the co-ordinate bench, we are in agreement with the plea of the assessee that merely because the assessee company is paying huge interest on outstanding credit balance to Sun Pharma while no interest is being charged by the assessee from its debtors cannot be the justifiable reason for resorting to the disallowance of interest. As pointed out on behalf of & 2026/Ahd/17 [Aditya Medisales Ltd.] A.Y.2013-14 - 7 - the assessee, we also note that the Hon’ble Gujarat High court has also approved the order of the ITAT concerning AYs 1997-98 in CIT vs. Aditya Medisales Ltd. Tax Appeal No. 559 of 2009 judgment dated 04.05.2010 towards deletion of disallowance made on account of excess interest payment under s.40A(2)(a) of the Act. Thus, the issue stands concluded in favour of the assessee by the jurisdictional High Court. The issue having been already examined in the earlier years, we do not see any reason to look afresh. Therefore, we decline to interfere with the order of the CIT(A) in this regard. Consequently, Ground No.1 of the Revenue’s appeal is dismissed.”

12.2 In parity with the view already taken in the identical circumstances, we find no error in decision rendered by the CIT(A). We therefore decline to interfere.

This Order pronounced in Open Court on 09/07/2019

Sd/- Sd/- (RAJPAL YADAV) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad: Dated 09/07/2019 True Copy S. K. SINHA आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाइल / Guard file. By order/आदेश से,

उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद ।