Unicure Remedies Pvt. Ltd., Baroda V. The Asstt. Commissioner of Income Tax, Central Circle-2(1)(1), Baroda

MA 223/AHD/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0764 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 09-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NIRMIT ME H TA
• Keywords: Gift
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) M.A. NO: 223/AHD/2019 (IN ITA NO. 2599/AHD/2016) (ASSESSMENT YEAR: 2012-13) M/S. UNICURE REMEDIES PVT. LTD. F-25, BIDC ESTATE, GORWA, BARODA- 390016 V/S THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(1)(1), VADODARA (APPELLANT) (RESPONDENT) PAN: AAACU2473J APPELLANT BY : SHRI NIRMIT MEHTA, AR RESPONDENT BY : SHRI S.K. DEV, SR. D.R. ( )/ ORDER DATE OF HEARING : 06 -09-201 9 DATE OF PRONOUNCEMENT : 02-12-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS M.A. HAS BEEN FILED ON BEHALF OF THE ASSESSEE AND MADE FOLLOWING SUBMISSIONS: THE HONBLE BENCH VIDE ORDER DATED 30.01.2019 DECID ED THE APPEAL FOR THEA.Y. 2011-12 AS WELL AS 2012-13. THE GROUNDS RAISED BE FORE THE HON'BLE TRIBUNAL FOR AY 2012-13 ARE AS UNDER: M.A. NO 223/ AHD/2019 . A.Y. 2012-13 2 1. THE LEARNED COMMISSIONER OF INCOME TAX ( APPEALS)-2, BARODA ['THE CIT (A) 'J ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTIO N OF THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-2 (1)(1), VADODARA ['THE AO'J IN DISALLOWING PAYMENT OF EMPLOYEE'S CONTRIBUTION TO PF AND ESIC AMOUNTING TO RS. 5,39,717/- ON THE GROUND THAT THE PAYMENT WAS NOT MADE WITHIN THE STA TUTORY PERIOD. 2. THE LEARNED CIT (A) ERRED IN FACT AND IN LAW IN DISALLOWING PAYMENT OF EMPLOYEE'S CONTRIBUTION TO PF AND ESIC AMOUNTING TO RS. 5,39,717/-DESPITE THE FACT THAT THE APPELLANT HAS MADE PAYMENT BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME. 3. THE LEARNED CIT (A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN DISALLOWING SALES PROMOTION EXPENSES AMOUNTIN G TO RS.23,85,567/-. . 4. YOUR APPELLANT CRAVES THE RIGHT TO ADD T O OR ALTER, AMEND, SUBSTITUTE, DELETE OR MODIFY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL. 3.THE PRESENT APPLICATION IS PERTAINING TO GROUND N O. 3 WHICH IS IN RESPECT OF DISALLOWANCE OF SALES PROMOTION EXPENSES AMOUNTING TO RS. 23,85,567. IT IS SUBMITTED THAT GROUND NO. 3 AS ABOVE, IS IDENTICAL TO GROUND NO. 3 OF AY 2011-12 (ITA NO. 3058/AHD/2014). THE DETAILS OF DISALLOWANC E OF SALES PROMOTIONS EXPENDITURE IS TABULATED AS UNDER: ISSUE A.Y ITA NO. AMOUNT OF DISALLOWANCE (RS.) SALES PROMOTION EXPENDITURE 2011-12 3058/AHD/20L4 30,11,573 SALES PROMOTION EXPENDITURE 2012-13 ITA NO. 2599/AHD/2016 23,85,567 4. THE HONBLE BENCH HAS PASSED A COMBINED ORDER FO R AY 2011-12 (ITA NO. 3058/AHD/2014) AND AY 2012-13 (ITA NO. 2599/AHD/201 6) AND IN RESPECT OF ISSUE OF DISALLOWANCE OF SALES PROMOTION EXPENDITUR E THE HON'BLE BENCH HAS DECIDED THE ISSUE IN FAVOUR OF THE COMPANY. REFER P ARA 9 TO 12 OF ORDER DATED 30.01.2019. 5. WHILE DECIDING THE APPEAL FOR AY 2012-13 THE HON'BLE BENCH HAS INADVERTENTLY NOT GIVEN ANY DIRECTION WITH RESPECT TO GROUND NO. 3 DEALING WITH SALES PROMOTION EXPENSES. ON PERUSAL OF THE FINDING S OF THE HON'BLE BENCH IN PARA 9 TO 12 IT CAN BE NOTICED THAT WHILE DECIDING ON THE ISSUE OF DISALLOWANCE OF SALES PROMOTION EXPENDITURE, THE REFERENCE TO GROUN D NO. 3 OF ITA NO. M.A. NO 223/ AHD/2019 . A.Y. 2012-13 3 2599/AHD/2016 FOR AY 2012-13 AND QUANTUM OF DISALLO WANCE OF SALES PROMOTION OF RS. 23,85,567 MADE IN AY 2012-13 HAS NOT BEEN IN CORPORATED BY THE HON'BLE BENCH. IN PARA 9 & 10 ON PG. NO. 7 OF THE ORDER DAT ED 30-01-2019, THE HON'BLE BENCH HAS REFERRED ONLY TO QUANTUM OF DISALLOWANCE OF SALES PROMOTION MADE IN 2011-12 (RS. 30,11,573) AND HAS INADVERTENTLY OMITT ED TO MENTION QUANTUM OF DISALLOWANCE OF SALES PROMOTION EXPENDITURE MADE IN AY 2012-13 (RS.23,85,567). HENCE, IT IS REQUESTED THAT THE HON'BLE BENCH MAY P LEASE INCORPORATE THE REFERENCE TO GROUND NO. 3 IN ITA NO. 2599/AHD/2016 FOR AY 2012-13 AND MAY ALSO PLEASE INCORPORATE THE QUANTUM OF DISALLOWANCE OF SALES PROMOTION EXPENDITURE AMOUNTING TO RS. 23,85,567 MADE IN AY 2 012-13 (ITA NO. 2599/AHD/2016). 6. THE FEES REQUIRED TO BE PAID HAS BEEN PAI D AND CHALLAN EVIDENCING THE PAYMENT OF RS. 50/- FOR THE FEES IS ENCLOSED HEREWI TH FOR YOUR RECORD. IN VIEW OF THE ABOVE SUBMISSIONS YOUR APPLICANT MOS T RESPECTFULLY PRAYS AS UNDER : 1. THE ORDER OF THE HON'BLE INCOME TAX APPELLATE TRIBUNAL DATED 30.01.2019 MAY PLEASE BE MODIFIED AND REFERENCE TO GROUND NO. 3 OF ITA NO. 2599/AHD/2016 FOR AY 2012-13 MAY PLEASE BE INCORPOR ATED IN PARA 9 OF THE ORDER DATED 30.01.2019. 2. THE ORDER OF THE HON'BLE INCOME TAX APPELLATE TRIBUNAL DATED 30.01.2019 MAY PLEASE BE MODIFIED AND QUANTUM OF DISALLOWANCE OF SALES PROMOTION EXPENDITURE AMOUNTING TO RS. 23,85,567 FOR AY 2012- 13 MAY PLEASE BE INCORPORATED IN THE ORDER DATED 30.01.2019. 2. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH OUR ORDER DATED 30.01.2019. WE FIND THERE IS AN APPARENT ERROR IN T HE ORDER PASSED BY THE ITAT. INADVERTENTLY GROUND WITH REGARD TO DISALLOWANCE OF SALES PROMOTION EXPENDITURE AMOUNTING TO RS. 23,85,567/- FOR ASSESS MENT YEAR 2012-13 WAS NOT DECIDED. 3. NOW WE RECTIFY OUR OMISSION AND PASS FOLLOWING O RDER: IN ORDER TO FETCH SALES PROMOTION, ASSESSEE HAS IN CURRED EXPENSES OF RS. 23,85,567/- FOR ASSESSMENT YEAR 2012-13. ON ETHICAL PROMOTION- PROPAGANDA, OVER THE COUNTER I.E. ADVERTISEMENT OF MEDICINE AND APART FROM THAT APPELLANT COMPANY ALSO DISTRIBUTED THE GIFT ARTICLE, GOLD COI N SAVING KITS ETC. TO THE DOCTORS M.A. NO 223/ AHD/2019 . A.Y. 2012-13 4 AND THE OTHER CONCERNED PERSON. BUT LOWER AUTHORITI ES CITED A CIRCULAR OF MEDICAL COUNCIL OF INDIA PHARMACEUTICAL COMPANY CANNOT GIVE THE FREEBEES TO THE DOCTORS AND OTHERS. 4. SINCE IN SAME FACTS AND CIRCUMSTANCES ALREADY WE HAVE GRANTED RELIEF TO THE ASSESSEE IN CONNECTED ITA NO. 3058/AHD/2014 FOR ASS ESSMENT YEAR 2011-12. 5. THUS, IN PARITY WITH THE ABOVE SAID ITA 3058/AHD /2014, WE ALLOW SALES PROMOTION EXPENSES AND DIRECT ASSESSING OFFICER TO DELETE THE ADDITION OF RS. 23,85,567/- FOR SALES PROMOTION EXPENDITURE. 6. IN THE RESULT, MISC. APPLICATION FILED BY THE AS SESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 02- 12- 20 19 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 02/12/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD