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321Taxpundit508 ITA Nos.2567 & 2568/Bang/2017 Four Seasons Wines Limited, Bangalore IN THE INCOME TAX APPELLATE TRIBUNAL “C’’BENCH: BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENTAND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA Nos.2567 & 2568/Bang/2017 AssessmentYear:2011-12 & 2012-13 Four Seasons Wines Ltd. No.24, UB City, UB Tower Vittal Mallya Road Deputy Commissioner of Vs. Bangalore 560 001 Income-tax Circle-11(3) Bangalore PAN NO :AABCF1204D APPELLANT RESPONDENT Appellant by : N O N E Respondent by : Smt. R. Premi, D.R. Date of Hearing : 08.03.2021 Date of Pronouncement : 08.03.2021 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: The appeals filed by the assessee are directed against the orders passed by the Ld. CIT(A)-3, Bengaluru and they relate to the assessmentTAXPUNDIT.ORG years 2011-12 & 2012-13. 2. None appeared on behalf of the assessee. We notice that the Registry has sent notice of hearing by registered post on an earlier occasion and the same has been returned back by the postal department with the noting “left”. Hence, the bench has directed the revenue to serve the notice. Ld. CIT(DR), vide his letter dated 4.3.2021, has reported to the Tribunal that the notice has been served upon the assessee. Under these circumstances, we are ITA Nos.2567 & 2568/Bang/2017 Four Seasons Wines Limited, Bangalore Page 2 of 7 constrained to proceed to dispose of these appeals ex-parte, without the presence of the assessee. 3. Since common issues are urged in these appeals, both the appeals were heard together and are being disposed of by this common order for the sake of convenience. 4. We heard Ld. D.R. and perused the record. The assessee is engaged in the business of manufacture and sale of wines. 5. The first common issue urged in both the years relate to disallowance of interest expenditure u/s 36(1)(3) of the Income-tax Act,1961 ['the Act' for short]. The facts relating to the same are stated in brief. The A.O. noticed that the assessee has borrowed funds from banks and other entities and paid interest thereon. He further noticed that the assessee has made investments in other companies namely Wines Society of India Pvt. Limited (WSIPL) and other companies without collecting interest from them. Hence the A.O. disallowed proportionate interest expenditure of Rs.24 lakhs in assessment year 2011-12 and Rs.41.04 lakhs in assessment year 2012-13 In the appellate proceedings, the Ld. CIT(A) noticed that the assessee has given two separate loan/investment in M/s. WSIPL andTAXPUNDIT.ORG the assessee has collected interest from the one of the loans. Accordingly he deleted interest disallowance relating to the loan on which interest was received. The Ld. CIT(A) noticed that the assessee could not establish commercial expediency in making the investment in WSIPL. Accordingly, he confirmed interest disallowance in respect of remaining amount of loans in both the years under consideration. ITA Nos.2567 & 2568/Bang/2017 Four Seasons Wines Limited, Bangalore Page 3 of 7 6. Before us, no material was placed by the assessee to contradict the findings recorded by Ld. CIT(A) on this issue. Accordingly, we do not find any reason to interfere with the order passed by Ld. CIT(A) on this issue in both the years under consideration. 7. The next common issue relates to disallowance of advertisement expenses in both the years. The A.O. noticed that the assessee has incurred huge amount of expenses on these advertisement expenses. In assessment year 2011-12, the turnover of the assessee was Rs.14.91 crores while the advertisement expenses were Rs.7.09 crores, which worked out to 50% of the sales. In assessment year 2012-13, the advertisement expenses incurred by the assessee worked out to 40% of the turnover. The A.O. took the view that the assessee has not proved the nexus between advertisement expenses incurred by it and the commercial expediency in incurring the same. Accordingly, he took the view that a portion of advertisement expenses needs to be disallowed. Accordingly, he disallowed 25% of the advertisement expenses incurred by the assessee in both the years under consideration, which worked out to Rs.1.77 crores and Rs.2.38 crores respectively in AY 2011-12 and 2012-13. The Ld. CIT(A) also confirmed the same. TAXPUNDIT.ORG 8. We heard Ld. D.R. on this issue and perused the record. From the orders passed by the tax authorities, we notice that the assessee has explained the object behind incurring huge advertisement expenses. It was explained that per person consumption of wine in India was only 10ml. per year, while the global per capital consumption of wine is 4.50 ltrs. Accordingly, considering the huge opportunity, the assessee has incurred huge ITA Nos.2567 & 2568/Bang/2017 Four Seasons Wines Limited, Bangalore Page 4 of 7 advertisement expenses. It was also submitted that the assessee’s market share is increasing every year and within a short span of 4 years, it has reached 2nd position in terms of market share. We notice that the above said explanation was not convincing to both the tax authorities. 9. We notice that the assessee has incurred the advertisement expenditure according to its wisdom/strategy from the point of view of the businessman. It is a well settled proposition of law that the tax authorities cannot sit in the arm chair of the businessman and decide the manner of conducting the business of the assessee. We notice from the assessment order that it is not the case of the A.O. that advertisement expenses incurred by the assessee are not genuine/bogus. The AO has formed the view that the advertisement expenses are huge vis-à-vis its Sales revenue. In our view, it should not be the reason for making estimated disallowance. Under these set of facts, we are of the view that the A.O. was not justified in disallowing part of advertisement expenditure on estimated basis and the Ld. CIT(A) was not justified in confirming the same. Accordingly, we set aside the order passed by Ld. CIT(A) on this issue in both the years under consideration and direct the A.O. to delete the disallowance in both the years under consideration.TAXPUNDIT.ORG 10. The assessee has urged one more issue in assessment year 2013-14, which relates to disallowance of business promotion expenses. We heard Ld. D.R. on this issue and perused the record. The A.O. noticed that the business promotion expenses of Rs.13.07 lakhs incurred by the assessee was in the nature of capital expenditure and the same has resulted in creation of an asset of enduring nature. Accordingly, he disallowed the business ITA Nos.2567 & 2568/Bang/2017 Four Seasons Wines Limited, Bangalore Page 5 of 7 promotion expenses treating the same as capital expenditure. Before Ld. CIT(A), the assessee furnished breakup details of business promotion expenses as given below: Sl.No. Particulars Amount in Rs. 1 Import pass fees 78,658 2 Trade sampling 1,450 3 Hologramer charges 1,27,963 4 Demurrage charges 3,08,029 5 Cash discount 9,794 6 Business promotion and others 7,82,046 11. The assessee also furnished additional evidences in support of the above expenses. Hence, Ld. CIT(A) called for a remand report from A.O., wherein the A.O. expressed the view that item no.1 to 6 mentioned in the table aggregating to Rs.5,25,894/- is revenue in nature. With regard to the remaining amount of Rs.7,82,046/-, the A.O. submitted as under: 3. Regarding the busines promotion and others (item 6) of Rs.7,82,046/-, the following facts are relevant. • The assessee company had launched four season range only in 2008 09 and in a short span of 4 years, the company achieved considerable market share. • Promotional expenses had been incurred for the purpose of expanding the existing business, not as part of day to day business TAXPUNDIT.ORGactivities. • Business promotion expenses helped the assessee to increase the revenue earning capacity 12. The Ld. CIT(A) directed the A.O. to delete the addition of Rs.5,25,894/- mentioned in sl.nos.1 to 5 of the table (referred above), since the A.O. himself has accepted the same as revenue in nature. With regard to remaining amount of Rs.7,82,046/-, the Ld. CIT(A) took the view that 25% of the same may be treated as capital in nature. However, he sustained addition of Rs.5,86,535/- out of ITA Nos.2567 & 2568/Bang/2017 Four Seasons Wines Limited, Bangalore Page 6 of 7 the above said amount of Rs.7,82,046/- and deleted the balance amount of Rs.1,95,571/-. Aggrieved the assessee has filed this appeal before us. 13. We heard Ld. D.R. and perused the record. The Ld. CIT(A) has discussed about the details of expenditure of Rs.7,82,046/- as under: “6.4 A perusal of the details of the business promotion expenses shows that it includes expenditure on purchase of bottle stand for display, expenditure on display and testing in wine fes ivals, press table for rooms, purchase of glass corner, shower curt ins, soap dispenser, bathroom fittings, artificial stones, crockery, flower vase etc., in addition to expenditure on various meetings, travel to various places including abroad, food expenses and travel expenses of various guests.
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