DCIT, CIR-10(1), KOLKATA, KOLKATA vs. M/S LABORATORIES GRIFFON PVT. LTD., KOLKATA

This appeal filed by the revenue and the Cross Objection filed by the assessee are against the order of Ld. CIT(A)-10, Kolkata dated 10.11.2015 for AY 2011-12. Since both the appeal and the Cross Objection have been heard together, we dispose of the same by this consolidated order.

First we take up revenue’s appeal. Ground no. 1 of revenue’s appeal is against the action of the Ld. CIT(A) in deleting the addition of Rs.6,50,610/- being interest on loan disallowed by the AO. The assessee has claimed to have paid interest on loan of Rs.9,20,283/-. The AO noted that the assessee in the previous year had paid only interest of Rs.2,69,673/- when the turnover of the company was at Rs.22,81,48,862/- whereas in this year, the assessee’s turnover came down to only Rs.20,92,31,782/- and it has claimed

We have heard rival submissions and gone through the facts and circumstances of the case. We note that the AO has made the addition on the sole reason that the interest outgo was more than what was in the immediate preceding year and he noted that the turnover was more than the last preceding year whereas the turnover in the relevant assessment year under consideration was low and that the assessee failed to prove the utilization of the new loan was for the purpose of the business. It was explained by the assessee that the purpose of borrowing additional funds/loan was that there were addition towards capital for work in progress of Rs.2,47,76,337/- due to renovation and modernization in assessee’s factory premises. The Ld. CIT(A) has noted after going through the audited P&L Account and the Balance Sheet wherein it was discernible that the assessee had renovated and modernized the factory, which fact could not be controverted by the Ld. DR before us and since the amount of loan has been utilized for the purpose of business which qualifies to be allowed u/s. 36(1)(iii)/Sec. 37 of the Act and, therefore, the Ld. CIT(A) has rightly allowed the claim of the assessee which does not call for any interference from our part and, therefore, we dismiss this ground of appeal of the revenue.

We have heard rival submissions and gone through the facts and circumstances of the case. We note that the assessee in this year has claimed expenditure on account of legal and professional charges to the tune of Rs.28,75,927/- which according to the AO was double the expenditure for this purpose, when compared to that of the last assessment year which was only of Rs.14,08,257/-. According to AO, the assessee failed to give cogent reason or explanation for incurring such a huge amount for legal and professional charges when the turnover has come down from Rs.22 cr. to Rs.20 cr. and on being asked, the assessee explained that due to retirement of few top management officials who were handling legal, HR, etc. of the assessee company, and in their position since the assessee company could not find any experts in this field took a decision to retain the services of retired professionals who handled the assessee’s professional work in these fields on retainer basis with a view that young recruits can be trained under their experience and expertise for future running of the assessee’s company. We note that following professionals were engaged on retainer basis.

On appeal, the Ld. CIT(A) has taken note that these engagement of professionals on retainer basis was with the intent to increase the turnover and consolidate the market share, and took into consideration of their professional qualifications, experience and knowledge in different fields. The Ld. CIT(A) was of the opinion that where the payments were verifiable, and the assessee has submitted the necessary verifiable details such as the PAN, amounts paid and TDS thereon, (copies of TDS certificates), and explained the nature of payments, it was incumbent upon the AO to make further verification before drawing adverse conclusions, and thereby erred in disallowing the entire professional payments which reasoning we agree. Another reason given by the AO to disallow the expenditure

Next ground is in respect to deletion of addition of Rs.9,90,545/- disallowed by the AO on account of foreign tour expenses claimed by the assessee.

Brief facts are that the assessee claimed foreign tour expenses for which the AO asked for details. The assessee replied that foreign tour expenses have been incurred by Mrs. Zhu Xintian, their Research Manager, in connection with her visit to China, Paris & Hong Kong/Bangkok for exploring new sources of Raw Materials & Packing Materials and to find out New evolving Technologies worldwide. The Foreign trip was undertaken with the objective of promoting the export sale of the company and claimed total expenditure on 5 & CO No.15/Cal/2016 Laboratories Griffon Pvt. Ltd., AY- 2011-12 Foreign Tour as Rs.9,90,545/-, which was incurred wholly & exclusively for business purpose. The AO did not accept the contention of assessee on the reasoning that the claim is not substantiated by the present or future business activities conducted by the assessee and that assessee failed to produce any documentary evidences like the places visited and to whom she met and what were the discussion (minutes of the meeting) so was considered by the AO as personal in nature and nowhere connected with the business of the assessee and so disallowed the claim of Rs.9,90,545/-. On appeal, Ld. CIT(A) gave partial relief and sustained only 20% of the amount i.e. Rs.1,26,000/-. Aggrieved by the partial relief granted to assessee, revenue is in appeal before us.

We have heard rival submissions and gone through the facts and circumstances of the case. We note that assessee deputed its Research Manager Mrs. Zhu Xintian to visit China, Paris & Hongkong/Bangkok with the objective of promoting the export sale of the company and for exploring new source of Raw materials, packing materials, pharmaceuticals manufacturing machines etc. We note from a perusal of paper book page no. 63 which is a chart showing the increase in export turnover in the succeeding years. We note that the export turnover of Rs.11,13,816/- for the instant AY, increased to Rs.1,33,72,874/- for AY 2014-15. Though gradual, there is certainly increase in export turnover. Invoice copies kept from page 64 to 78 of paper book reveals the import of various pharmaceutical manufacturing machines which are pursuant to the visit of the research scholar and these machineries are required to up-grade the manufacturing machines with advanced technology and compete in the business with others who are engaged in the same kind of business. The Ld. CIT(A) has allowed the travelling expense i.e. air ticket of Rs.3,60,545/-, however, restricted the claim of Rs.6,39,000/- which was claimed to have been expended on account of boarding and lodging. The Ld. CIT(A) taking into account the element of personal expenditure sustained 20% of the disallowance which works out to Rs.1,26,000/- and thus assessee got a relief of Rs.8,64,545/-. Against the action of Ld. CIT(A) only revenue is in appeal. Considering the discussion given above, in the facts and circumstances of the case, we are of the view that Mrs. Zhu Xintian the research manager having visited foreign countries wholly and exclusively for business purposes of the assessee company is entitled to claim the expenditure and we do not want to interfere in the order of the Ld. CIT(A), which is hereby upheld. This ground of revenue appeal is dismissed.

Brief facts of the issue are that the assessee has claimed Rs.58,77,566/- under the head Publicity Expenses on account of purchase of physician samples from M/s STP Pharmaceuticals Pvt. Ltd, and debited the said expense in the Profit and Loss Account to derive the net Profit from the business. When the AO asked the assessee to furnish the details of such expenses with reason for claiming the same was answered by the assessee that it had purchased Physician Samples from M/s STP Pharmaceuticals Pvt. Ltd., amounting to Rs.58,77,566/- to be supplied free to physicians as Samples. It was brought to the knowledge of AO that distribution and disbursal of Physician Samples is a Marketing Strategy to boost sales of major products and other promotional measures are undertaken for the growth of turnover of particular product. And since the assessee’s own factory’s capacity was not good enough, a contract was executed between assessee and M/s. STP Pharmaceuticals Ltd. on a principle to principle basis to produce tablet called “SORBILILE”. And since M/s. STP Pharmaceuticals was situated at State of Sikkim, the cost of production was less and by disbursing the sample tablets to the physicians, according to assessee company, the turnover of this product increased manifold. So, assessee tried to justify its claim which was not acceptable to AO. The AO took note of the fact that assessee as ‘consignor’ has executed a contract with M/s. Franco Indian Pharmaceuticals as ‘consignee’ for effecting consignment sale with all kind of accountability to effect the sales and for undertaking such responsibility commission of Rs.15,95,355/- has been paid by the assessee to M/s. Franco Indian Pharmaceuticals. So, according to AO, the assessee violated the principal norm of business and claimed expenditure for the business as a manufacturer cum trader (seller) and not as a consignor. Another default the AO noted was that any way the claim of expense of payment of Rs.58,77,566/- to M/s. STP Pharmaceuticals cannot be allowed because it is hit by sec. 40(a)(ia) of the Act for non-deduction of tax u/s. 194C(1) of the Act. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A) who was pleased to allow it. Aggrieved, the revenue is before us.

We have heard both parties and perused the records. We have already noted the gist of the reasons given by AO for not allowing the claim of the assessee, so the same is not repeated for the sake of brevity. We note that the assessee in the capacity as consignor has 7 & CO No.15/Cal/2016 Laboratories Griffon Pvt. Ltd., AY- 2011-12 executed a contract with M/s. Franco Indian Pharmaceuticals on 27.02.2001 (paper book 108-111) as a consignee, for consignment sale with all kind of accountability to effect sales and for undertaking such responsibility commission to the tune of Rs.15,95,355/- was paid by the assessee to it. In order to boost the sales of “Sorbiline”, the assessee decided to give physician sample of this product. Realising that its factory did not had the capacity to produce the physician sample and for water shortage in its plant, the assessee got into an agreement with M/s. STP Pharmaceuticals on 22.02.2010 (PB page 80-88) to manufacture “Sorbiline” and sell the same to the assessee on “Principal to Principal” basis. We note from a perusal of invoice that M/s. STP suffered central sales tax (PB Page 91-106) for the product manufactured by it. The assessee took into consideration the advantage of the unit of M/s. STP which was located at Sikkim and cost of production of physician sample was comparatively very less and there was no scarcity of water. The decision to disburse physician sample was to boost the sale of “Sorbiline” in the market and it gave results. We note that total sales of “Sorbiline” comes to Rs.13,65,19,553/- whereas the expenditure incurred on physicians samples amount to Rs.5,81,77,566/- which represents 4.3% only towards promotional measures and assessee has justified its claim for the expenditure incurred which was wholly and exclusively for business purposes and thus qualifies for business expenditure, which has been rightly allowed by the Ld. CIT(A). Coming to the other reason of AO to disallow the claim of expenditure for non-deduction of TDS u/s. 194C of the Act for the payment made by assessee to M/s. STP, we first of all reproduce sec. 194C of the Act

Sec.194C of the Act stipulates that when the assessee in pursuance of a contract between the assessee and the contractor carry out any work through a contractor (including supply of labour for carrying out any work), makes the payment to the contractor shall deduct tax at source as specified in the section. Definition of work for the purpose of this section is important to ascertain the legislative intent.

As per clause (e) of Explanation (iv) of sec. 194C of the Act, itself excludes manufacture or supply of a product according to the requirement or specification of a customer (assessee) by using material which is purchased from a person other than such customer (assessee), from the ambit of section 194C.

We note that clause (e) as introduced contains a positive affirmation that the expression "work" will cover manufacturing or supplying a product, according to the requirement or specification of a customer, by using material purchased from such a customer. Clause (e) has placed the position beyond doubt by incorporating language to the effect that the expression "work" shall not include manufacture or supply of a product according to the requirement or specification of a customer by using material which is purchased from a person other than such customer. Meaning thereby, when the material is purchased from the customer who orders the product it constitutes a contract of work, resultantly section 194C will be attracted, while on the other hand, where the manufacturer has sourced the material from a person other than the customer, it would not be classified as work, resultantly section 194C would not be attracted in the later case. So to adjudicate this issue let us look into the relevant clauses of the agreement between assessee and M/s STP

From perusal of the above, it is evident that the agreement was entered into by the assessee on principal to principal basis and was not a contract for carrying out any work since M/s.STP Pharmaceuticals Pvt. Ltd has for the production of SORBILINE sourced the material from a person other than the assessee. We also note from perusal of page 14 PB that assessee’s domestic total sales was to the tune of only Rs 20,92,31,782/ when compared to the expenditure for the production of SORBILINE from M/s.STP Pharmaceuticals Pvt. Ltd to the tune of Rs 58,77,566/ which they manufactured by sourcing the material from a person other than the assesse, doesn’t fall in the ken of sec 194C of the Act.

In the instant case, we note that Ld. CIT(A) on this issue has made a factual finding. We note that due to restriction of production of liquids in the factory premises by the land lord of the assessee, due to effluent water problem, the production of SORBILINE was shifted to backward area as ancillary costs for manufacturing the said product are low. In this regard, the assessee entered into an agreement with M/s.STP Pharmaceuticals Pvt. Ltd. according to which M/s. STP will manufacture the pharmaceutical products in the brand name "Sorbiline" by using materials from its own source and sell the same to the assessee on "principal to principal" basis. Therefore, undoubtedly the provisions of clause (e) of Explanation (iv) of sec. 194C gets attracted in the instant case and as such, the entire expenditure of Rs.58,77,566/- being paid to M/s.STP Pharmaceuticals Pvt. Ltd for purchase of "Sorbiline" does not come under the ambit of sec. 194C, therefore, the AO erred on this issue, which has been rightly corrected by the Ld. CIT(A), which calls for no interference, so we confirm the order of Ld. CIT(A).

We have heard rival submissions and gone through the facts and circumstances of the case. We note that the assessee company claimed to have disbursed gift articles for an amount of Rs.20,97,900/- to the distributors/dealers for promotion of the pharmaceuticals products which it manufactures and trades in. The claim of the assessee was not acceptable for the AO for the reason that the 98.18% of the total sale of the pharmaceutical products of the assessee company was sold through the consignee M/s. Franco Indian Pharmaceuticals Pvt. Ltd. and in this assessment year the turnover has been less and, therefore the AO was not satisfied with the claim of the assessee. Moreover, he took note of the fact that of an internal information he received from the survey/search conducted at the business premises of M/s. Subhlakshmi Enterprises of Mumbai confirmed that they were providing

In the result, appeal of revenue is dismissed and CO of assessee is partly allowed.