ACIT 2(1) CITY-2, MUMBAI V. ABBOTT HEALTH CARE P.LTD, MUMBAI

ITA 1876/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55961 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 10-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS USHA NAIR
• Keywords: Transfer pricing; Business expenditure; Commercial expediency
• Section: 14A; 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, A.M. AND SHRI V. DUR GA RAO, J.M. ITA NO. 719/MUM/2010 ASSESSMENT YEAR : 2004-05 ABBOTT HEALTHCARE PVT. LTD., APPELLANT UNIT 4, CORPORATE PARK, SION-TROMBAY ROAD, CHEMBUR, MUMBAI 400 071. (PAN AAACK3935D) VS. INCOME TAX OFFICER-2(1)(1), RESPONDENT AAYAKAR BHAVAN, M.K. MARG, MUMBAI. ITA NO. 1876/MUM/2010 ASSESSMENT YEAR : 2004-05 INCOME TAX OFFICER-2(1)(1), APPELLANT AAYAKAR BHAVAN, M.K. MARG, MUMBAI. VS. ABBOTT HEALTHCARE PVT. LTD., RESPONDENT UNIT 4, CORPORATE PARK, SION-TROMBAY ROAD, CHEMBUR, MUMBAI 400 071. (PAN AAACK3935D) ASSESSEE BY : MR.YOGESH THAR REVENUE BY : MRS. USHA NAIR DATE OF HEARING : 16/11/2011 DATE OF PRONOUNCEMENT : 25/11 /2011 ORDER PER V. DURGA RAO, J.M.: THESE ARE THE CROSS APPEALS AND THE SAME ARE DIRECT ED AGAINST THE ORDER OF CIT(A)-4, MUMBAI, PASSED ON 17 /12/2009 FOR THE ASSESSMENT YEAR 2004-05. ITA NO. 719 & 1876/M/2010 M/S ABOTT HEALTH CARE PVT. LTD. 2 ITA NO. 710/MUM/10 APPEAL BY THE ASSESSEE 2. GROUND NO. I IS DIRECTED AGAINST THE ACTION OF T HE CIT(A) IN UPHOLDING THE DISALLOWANCE OF SUNDRY EXPENSES AMOUN TING TO RS. 20,48,331/-, BY THE AO. 3. BRIEFLY THE FACTS RELATING TO RAISE THIS GROUND ARE THAT THE AO NOTED IN ASSESSMENT ORDER THAT THE ASSESSEE HAD DEB ITED A SUM OF RS. 20,48,331/- AGAINST SUNDRY EXPENSES UNDER THE H EAD MISCELLANEOUS EXPENSES. ON BEING ASKED TO FURNISH T HE DETAILS OF THESE EXPENSES BY THE AO, THE ASSESSEE VIDE ITS LET TER DATED 28/08/06 STATED THAT THESE EXPENSES REPRESENT THE C OST OF TEMPORARY STAFF EMPLOYED BY THE STOCKIST ON BEHALF OF THE ASSESSEE FOR THE DISTRIBUTION RELATED WORK AT THE STOCKIST C ENTER TO FACILITATE THE MOVEMENT OF GOODS IN CONNECTION WITH THE SALE A ND DISTRIBUTION WORK OF THE COMPANY. IT WAS STATED THAT NUMBER OF STOCKISTS ARE AVAILABLE ACROSS INDIA AND THIS EXPENDITURE WAS INC URRED BY THEM ON BEHALF OF THE ASSESSEE. SINCE THE EXPENDITURE IN CURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF ASSESSEES BUSIN ESS THIS IS A NORMAL BUSINESS EXPENDITURE FULLY ALLOWABLE AS DEDU CTION IN COMPUTING TAXABLE INCOME. IT WAS FURTHER STATED TH AT THESE EXPENSES CONSTITUTE NORMAL BUSINESS EXPENSE ONLY BU T SINCE THESE ITEMS CANNOT BE DIRECTLY CLASSIFIED AS FALLING UNDE R A PARTICULAR DEFINED ACCOUNT HEAD, THESE ARE DEBITED UNDER SUNDR Y EXPENSES HEAD. THE AO ASKED TO THE ASSESSEE TO PRODUCE A COP Y OF THE AGREEMENT WITH THE STOCKISTS FOR INCURRING THE SAID EXPENDITURE ON TEMPORARY STAFF. THE ASSESSEE HAD NOT PRODUCED ANY CONFIRMATION FROM THE STOCKIST NOR FURNISHED ANY DOCUMENTARY PRO OF TO JUSTIFY THE SAID EXPENSES. THE AO, THEREFORE, DISALLOWED TH E SAID SUM OF RS. 20,48,331/- U/S 37(1) OF THE ACT, ON THE GROUND THAT THE PAYMENT WAS MADE TO TEMPORARY STAFF AT THE STOCKIES T LEVEL FOR ODD JOBS WHICH IS OCCASIONAL AND THEY HAVE TO REIMBURSE THESE COSTS. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE CARR IED THE MATTER IN APPEAL BEFORE THE CIT(A). ITA NO. 719 & 1876/M/2010 M/S ABOTT HEALTH CARE PVT. LTD. 3 4. BEFORE THE CIT(A), THE LEARNED AR OF THE ASSESSE E SUBMITTED THAT IT IS TRUE THAT THERE IS NO WRITTEN AGREEMENT BETWEEN THE ASSESSEE AND STOCKIEST FOR REIMBURSEMENT OF THE EXP ENSES. HOWEVER, IT IS ALSO TRUE THAT THE AO DID NOT CALL F OR ANY OTHER DOCUMENTARY EVIDENCE IN RELATION TO SUNDRY EXPENSES CLAIMED BY THE ASSESSEE WHICH IS CLEAR FROM THE QUESTIONNAIRE ISSUED BY THE AO. HE FURTHER SUBMITTED THAT ALL DOCUMENTARY EVIDE NCES ARE AVAILABLE AND COULD BE PRODUCED BEFORE THE AO AND S OME SAMPLE EVIDENCE WAS PRODUCED BEFORE THE AO WHICH COVERS NE ARLY 20% OF THE EXPENDITURE OF RS. 20,48,331/-. AFTER CONSIDERI NG THE SUBMISSIONS OF THE LEARNED AR OF THE ASSESSEE, THE CIT(A) HELD THAT THERE IS NO WRITTEN AGREEMENT BETWEEN THE ASSESSEE AND THE TEMPORARY STAFF AT STOCKIEST LEVEL. HENCE, THE AO I S JUSTIFIED IN DISALLOWING THE EXPENSES INCURRED BY THE ASESSSEE A S IT IS NOT CLEAR THAT THE RECRUITMENT WAS FOR THE BUSINESS OF THE AS SESSEE AND NOT FOR THE STOKIEST. EVEN NO CONFIRMATION WAS FILED FROM T HE STOCKIEST. HENCE, THE DISALLOWANCE MADE BY THE AO IS CONFIRMED AND APPEAL ON THIS GROUND IS DISMISSED. STILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 5. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE I NVITED OUR ATTENTION TO THE PAGE 8 TO 176 OF THE PAPER BOOK AN D SUBMITTED THAT ALL THE DETAILS ARE AVAILABLE PERTAINING TO THE SUN DRY EXPENDITURE, WHICH WERE SUBMITTED BEFORE THE AUTHORITIES BELOW, BUT BOTH THE AUTHORITIES WERE NOT CONSIDERED THE DETAILS PROPERL Y. HE, THEREFORE, SUBMITTED THAT THE ISSUE MAY BE RESTORED BACK TO TH E FILE OF THE AO TO EXAMINE THE DOCUMENTARY EVIDENCE, WHICH HAS BEEN FILED IN THE PAPER BOOK FROM PAGES 8 TO 176. THE LEARNED DR, ON THE OTHER HAND, AGREED WITH THE SUBMISSIONS OF THE ASSESSEE. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, WE ARE OF THE VIEW THA T SINCE BOTH THE PARTIES AGREED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE AO FOR FRESH DECISION, WE RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AFTER E XAMINING THE DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE IN ACCOR DANCE WITH LAW ITA NO. 719 & 1876/M/2010 M/S ABOTT HEALTH CARE PVT. LTD. 4 AND AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARI NG TO THE ASSESSEE. THUS, THIS GROUND IS TREATED AS ALLOWED F OR STATISTICAL PURPOSES. 7. GROUND NO. II TO V ARE PERTAINING TO THE DISALLO WANCE U/S 14A OF THE ACT. 8. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASESSSEE SUBMITTED THAT THE AO ESTIMATED THE DISALLOWANCE U; /S 14A BUT THE CIT(A) DIRECTED THE AO TO RECOMPUTE THE DISALLOWANC E U/S 14A FOLLOWING RULE 8D. THE LEARNED COUNSEL FOR THE ASSE SSEE FURTHER SUBMITTED THAT SINCE THE AO MADE REASONABLE DISALLO WANCE U/S 14A, THERE IS NO NEED TO REMIT THE MATTER BACK TO T HE FILE OF THE AO. HOWEVER, WE ARE OF THE VIEW THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE AO IN VIEW OF THE DECISION OF TH E HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GODREJ & B OYCE MFG. CO. LTD., [2010] 328 ITR 81 (BOM.). THEREFORE, WE RESTO RE THE ISSUE BACK TO THE FILE OF THE AO WITH A DIRECTION TO COMP UTE THE DISALLOWANCE U/S 14A FOLLOWING THE SAID DECISION OF THE GODREJ & BOYCE MFG. CO. LTD. THE GROUNDS RAISED IN THIS REGA RD A TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 1876/MUM/2010 APPEAL BY THE REVENUE 10. THE ONLY GROUND RAISED BY THE REVENUE IS DIRECT ED AGAINST THE ACTION FO THE CIT(A) IN DELETING THE ADDITION OF RS . 2,69,00,000/- TOWARDS ADVERTISING EXPENSES. 11. BRIEFLY THE FACTS RELATING TO RAISE THIS GROUND ARE THAT THE AO, IN THE ASSESSMENT ORDER NOTED THAT THE ASSESSEE HAD INCURRED AN EXPENDITURE OF RS. 2,69,00,000/- ON ADVERTISING, WH ICH INCLUDED TELEVISION EXPENSES OF RS. 1,60,63,55/- AND EXPENSE S ON GIVE-AWAYS OF RS. 22,32,963/- AND RS. 8,51,535/- ON ACCOUNT OF ADVERTISING ITA NO. 719 & 1876/M/2010 M/S ABOTT HEALTH CARE PVT. LTD. 5 TRADE OFFERS. HE FURTHER NOTED THAT THE ASSESSEE HA D PRODUCED SAMPLE COPIES OF BILLS FOR ADVERTISING. ON PERUSAL OF THE DETAILS OF ADVERTISING EXPENSES PRODUCT WISE, THE AO NOTICED T HAT INCASE OF ALL THE PRODUCT THE IPR BELONGS TO THE PARENT COMPANY E XCEPT IN THE CASE OF PRODUCT EPTION AND PROTUSSA PLUS IN RES PECT OF WHICH ADVERTISEMENT EXPENSES INCURRED ARE RS. 2,11,125/- AND RS. 2,53,656/-. IT WAS FURTHER NOTED THAT BY THE ASSESS EES OWN ADMISSION THE TRADEMARK/IPR IS ONLY TO BE USED BY THE ASSESSEE AND, THEREFORE, IT FOLLOWS THAT THE SAME HAS NOT BE EN PURCHASED BY THE ASSESSEE. THE AO HELD THAT IN THAT CASE THE ADV ERTISEMENT EXPENSES DOES NOT BECOME INCIDENTAL TO THE BUSINESS OF THE ASSESSEE COMPANY AND IT IS NOT ALLOWABLE U/S 37(1) OF THE AC. THE AO FURTHER HELD THAT IN THE CASE OF M/S ABOTT INDIA , A GROUP COMPANY OF THE ASSESSEE COMPANY, THE COMPANY HAS NO T BEEN ABLE TO PROVE OR DISTINGUISH WITH DOCUMENTARY EVIDENCE A S TO WHY DIFFERENT YEARDSTICKS ARE BEING USED IN RESPECT OF SALES TO GROUP COMPANIES VIS--VIS SALES TO OTHER COMPANIES. THE A O CONCLUDED THAT THE ABOVE EXPENSES ARE, THEREFORE, NOT EXPENDE D WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS AND THEREFO RE WAS NO COMMERCIAL EXPEDIENCY FOR INCURRING THE SAID EXPEND ITURE. HAD THESE EXPENSES BEEN LEGITIMATELY ALLOWABLE UNDER TH E PROVISIONS OF SECTION 37(1) THERE WAS NO ROOM FOR THE REIMBURSEME NT OF THE SAME BY M/S NOVONORDISK IN THE CASE OF GROUP COMPANY M/S ABOTT INDIA LTD. IN VIEW OF THE ABOVE FINDINGS, THE AO DISALLOW ED THE ADVERTISEMENT EXPENSES PAID BY THE ASSESSEE IN RESP ECT OF THE PRODUCTS OF WHICH THE BRAND/IPR IS OWNED BY THE PAR ENT COMPANY TO THE EXTENT OF RS. 2,50,76,00/-. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CI T(A). 12. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT THE ADVERTISEMENT AND PUBLICITY EXPENDITURE INCURRED BY THE ASSESSEE WAS PURELY FOR INCREASING ITS OWN SALES AND WAS OUT OF COMMERCIAL EXPEDIENCY, AS IT IS WELL SETTLED THAT EXPENDITURE INCURRED OUT OF COMMERCIAL EXPEDIENCY IS A GOOD GROUND FOR ALLOWANC E OF THE EXPENDITURE. IT WAS FURTHER SUBMITTED THAT EXPENDIT URE INVOLVES ADVERTISEMENTS OF ALL PRODUCTS OF THE ASSESSEE. THE SAID ITA NO. 719 & 1876/M/2010 M/S ABOTT HEALTH CARE PVT. LTD. 6 EXPENDITURE HAD BEEN EXPENDED WHOLLY AND EXCLUSIVEL Y FOR THE PURPOSE OF THE BUSINESS OF THE ASSESSEE AND WAS NEI THER CAPITAL NOR PERSONAL IN NATURE. IT WAS ALSO SUBMITTED THAT THE ALLOWABILITY CRITERION SPECIFIED IN SECTION 37(1) ARE SATISFIED AND, THEREFORE, THE SAID EXPENDITURE CANNOT BE DISALLOWED. IT WAS SUBMI TTED THAT IT IS POSSIBLE THAT ONE MAY HAVE A VIEW THAT BECAUSE OF A DVERTISEMENT AND PUBLICITY EXPENSES, INDIRECTLY, THE SALES OF TH E ASSESSEES SUPPLIERS (ASSOCIATED AS WELL AS NON-ASSOCIATED ENT ERPRISES) MIGHT HAVE INCREASED. THAT CANNOT MEAN THAT THE ADVERTISE MENT EXPENSES INCURRED BY THE ASSESSEE IS NOT WHOLLY AND EXCLUSIV ELY FOR THE PURPOSE OF BUSINESS. THE ASSESSEE RELIED UPON VARIO US DECISIONS BEFORE THE CIT(A) INCLUDING THE DECISION OF DELHI T RIBUNAL IN THE CASE OF NESTLE INDIA LTD. VS. DCIT AND THE MUMBAI T RIBUNAL DECISION IN THE CASE OF STAR (INDIA) PVT. LTD. VS. ACIT. THE ASSESSEE SUBMITTED THAT THE TRANSFER PRICING OFFICER HAD ALS O EXAMINED ALL PURCHASE TRANSACTIONS WITH THE ASSOCIATED ENTERPRIS ES AND HAD CONSIDERED THEM AS ARMS LENGTH TRANSACTIONS AND THE RE IS NO ADDITION ON THAT ACCOUNT MADE BY THE TPO IN HIS ORD ER. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE CI T(A) HELD AS UNDER:- 4. I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE AR AND FINDINGS OF THE AO. I FIND THAT THE AO HAD DISALLOW ED THE ADVERTISING AND PUBLICITY EXPENSES ON THE GROUND TH AT THE ASSESSEE HAS NOT INCURRED THESE EXPENSES WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. ACCORDING TO HIM THE EXPENDITURE INCURRED BY THE ASSESSEE HAVE BENEFITED THE PRINCIPAL OF THE ASESSEE. A SIMILAR CASE WAS CONSID ERED BY THE ITAT, MUMBAI, IN THE CASE OF STAR (INDIA) PVT. LTD. VS. ACIT WHEREIN IT WAS HELD THAT ADVERTISEMENT EXPENSES INC URRED ON PROMOTING VIEWERSHIP OF T.V. CHANNELS BY ASSESSEE E NGAGED IN PROCURING ADVERTISEMENTS AND PRODUCING OF THE PROCU RING PROGRAMMES OF THOSE CHANNELS WAS EXPENDITURE INCURR ED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF ITS BUSIN ESS AND IT COULD NOT BE DISALLOWED ON THE GROUND THAT IT MIGHT HAVE ALSO BENEFITED THE ASSESSEES PRINCIPAL. I ALSO FIND THAT THE DELHI TRIBUNAL IN THE CASE OF NESTLE INDIA LTD. VS. DCIT HAS HELD THAT ADVERTISEMENT AND SALES PROMOTION EXPENSES INCURRED BY THE ASSESSEE FOR PRO MOTING SALES IN INDIA IN RESPECT OF PRODUCTS MANUFACTURED BY IT UNDER VARIOUS BRANDS OF FOREIGN COMPANY WERE ALLOWABLE IN ENTIRETY EVEN THOUGH IT MIGHT HAVE BENEFITED THE NON-RESIDEN T COMPANY WHO OWNED THE BRANDS OF SUCH PRODUCTS. ITA NO. 719 & 1876/M/2010 M/S ABOTT HEALTH CARE PVT. LTD. 7 IN THIS CASE ALSO THE ASSESSEE HAS INCURRED EXPENS ES ON ADVERTISEMENTS AND PUBLICITY WHICH MIGHT HAVE BENEF ITED THE PRINCIPALS OF THE COMPANY IN SOME WAY OR THE OTHER. HOWEVER, THE EXPENSES INCURRED BY THE ASSESSEE CANNOT BE DIS ALLOWED ONLY ON THE GROUND THAT IT MIGHT HAVE BENEFITED THE PRINCIPALS OF THE COMPANY ALSO. RELIANCE IS PLACED ON THE DECI SION OF ITAT, ,MUMBAI IN THE CASE OF STAR (INDIA) PVT. LTD. VS. ACIT (2006) 104 TTJ MUM (TM1). THIS GROUND OF APPEAL IS ALLOWED. 13. AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVEN UE IS IN APPEAL BEFORE US. 14. THE LEARNED DR SUBMITTED THAT THE EXPENDITURE I NCURRED BY THE ON ACCOUNT OF ADVERTISEMENT FOR THE BENEFIT OF THE PARENT COMPANY. HE FURTHER SUBMITTED THAT THE EXPENDITURE INCURRED NOT ONLY FOR THE BENEFIT OF THE ASSESSEE BUT ALSO IT IS BENEFITED TO THIRD PARTIES, THEREFORE, THE EXPENDITURE CANNOT BE ALLOW ED. 15. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSSEE SUBMITTED THAT ADVERTISEMENT AND PUBLICITY EXPENDIT URE INCURRED BY THE ASESSSEE WAS PURELY FOR INCREASING ITS OWN S ALES AND WAS OUT OF COMMERCIAL EXPEDIENCY. HE CONTENDED THAT THE E XPENSES INCURRED BY THE ASESSSEE CANNOT BE DISALLOWED ON TH E GROUND THAT IT MIGHT HAVE BENEFITED THE PRINCIPALS OF THE COMPANY AND THEREFORE THE EXPENDITURE IS NOT INCURRED WHOLLY AND EXCLUSIV ELY FOR THE PURPOSE OF BUSINESS. IT IS SUBMITTED THAT THE TPO H AS EXAMINED ALL PURCHASE TRANSACTIONS WITH THE ASSOCIATED ENTERPRIS ES AND HAS CONSIDERED THEM AS ARMS LENGTH TRANSACTIONS AND NO ADDITION MADE BY THE TPO IN HIS ORDER. IN SUPPORT OF ASSESSEES C ASE, THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE FOLLOWING CASE LAWS:- 1. NESTLE INDIA LTD. VS. DCIT, 111 TTJ 498 (DEL.) 2. STAR INDIA (P) LTD. VS. ACIT, 104 TTJ 1 (MUM)(T M). 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W AS WELL AS DECISIONS CITED. THE AO HAD DISALLOWED THE ADVERTIS ING EXPENSES INCURRED BY THE ASSESSEE ON THE GROUND THAT THESE E XPENSES HAVE ITA NO. 719 & 1876/M/2010 M/S ABOTT HEALTH CARE PVT. LTD. 8 NOT INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS AS ACCORDING TO AO THE EXPENDITURE INCURRED BY THE ASS ESSEE HAD BENEFITED THE PRINCIPALS OF THE ASSESSEE COMPANY. T HE CIT(A) HELD THAT THE EXPENDITURE CANNOT BE DISALLOWED ONLY ON T HE GROUND THAT IT MIGHT HAVE BENEFITED THE PRINCIPALS OF THE ASSES SEE COMPANY. THE CIT(A) FOLLOWED THE DECISIONS ITAT IN THE CASE OF N ESTLE INDIA LTD. AND STAR INDIA (P) LTD., (SUPRA), ON WHICH RELIANCE PLACED BY THE ASSESSEE. IN THE CASE OF NESTLE INDIA LTD (SUPRA), THE TRIBUNAL HELD THAT ADVERTISEMENT AND SALES PROMOTION EXPENSES INCURRED BY ASSESSEE FOR PROMOTING SALES IN INDIA IN RESPECT OF PRODUCTS MANUFACTURED BY IT UNDER VARIOUS BRANDS OF A FOREIG N COMPANY WERE ALLOWABLE IN ENTIRETY EVEN THOUGH IT MIGHT HAV E BENEFITED THE NON-RESIDENT COMPANY WHO OWNED THE BRANDS OF SU CH PRODUCTS AND THERE WAS NO QUESTION OF INVOKING SECT ION 92. IN THE CASE OF STAR INDIA (P) LTD. (SUPRA), THE TRI BUNAL HELD THAT COMMISSION DUE TO ASSESSEE FOR PROCURING ADVERTISEM ENTS FOR TV CHANNELS ACCRUED TO IT ONLY WHEN THE PAYMENT DUE TO ITS PRINCIPAL FROM THE CLIENTS WAS REALIZED BY THE ASSE SSEE AS THE TERMS OF THE AGENCY AGREEMENT CLEARLY PROVIDES THAT THE ASESSSEE IS ENTITLED TO RETAIN 15 PER CENT OF NET INVOICE AMOUNT PAID BY THE CLIENTS AS COMMISSION AND RELAI SATION OF AMOUNT AND REMITTANCE ARE VERY MUCH PART OF THE JOB REQUIRED TO BE PERFORMED BY THE ASSESSEE. WE FIND THAT THE ABOVE DECISIONS OF THE ITAT DIRECTLY APPLIES TO THE FACTS OF THE CA SE UNDER CONSIDERATION. SINCE THE CIT(A) DELETED THE ADDITIO N MADE BY THE AO FOLLOWING THE ABOVE DECISIONS OF THE ITAT, WE FI ND NO INFIRMITY IN THE ORDER OF THE CIT(A) AND THE SAME IS HEREBY U PHELD. THE GROUND RAISED BY THE REVENUE IS DISMISSED. 17. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ITA NO. 719 & 1876/M/2010 M/S ABOTT HEALTH CARE PVT. LTD. 9 18. TO SUM UP APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES AND THE APPEAL OF THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF NOVEMBER, 2011. SD/- SD/- (J. SUDHAKAR REDDY) (V . DURGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 25 TH NOVEMBER, 2011 KV COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, G BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI.