1994-VIL-239-KER-DT

Equivalent Citation: [1995] 212 ITR 611, 80 TAXMANN 221

KERALA HIGH COURT

Date: 21.10.1994

COMMISSIONER OF INCOME-TAX

Vs

POPULAR AUTOMOBILES LIMITED

BENCH

Judge(s)  : T. L. VISWANATHA IYER., K. K. USHA 

JUDGMENT

The judgment of the court was delivered by

T. L. VISWANATHA IYER J. -- Out of the three questions, of which the Revenue sought reference to this court, question No. 1 has already been referred under section 256(1). Question No. 2 is one on which we have directed reference in similar other cases. So far as question No. 3 is concerned, the facts are that the assessee had paid commission to certain persons for procuring orders for its products. The payments were made after the sales were effected. The assessing authority treated these payments as sales promotion expenses falling under section 37(3B) of the Income-tax Act, 1961, to which section 37(3A) applied. The Commissioner, on appeal, took the view that the payment so made was sales commission, and not sales promotion expenses, and, therefore, the assessee was entitled to deduction of the entire amount. This was affirmed in appeal by the Tribunal. The Revenue, therefore, seeks reference of the question whether the payments so made should not be treated as sales promotion expenses, attracting the provisions of section 37(3A).

Having heard counsel for the parties, we are satisfied that no question of law arises out of this finding of the Tribunal. The amount was paid as commission to representatives of the assessee who procured orders from prospective customers and brought about sales. The payment is made only if and when the sales are effected, and not otherwise. They are related only to sales. The position of the representatives is that of mere agents canvassing orders, who are remunerated according to the work done and orders procured by them. No doubt, it is intended to enhance and improve the business and sales of the assessee ; but it is not a sales promotion activity. Clause (i) of sub-section (3B) speaks of advertisement, publicity and sales promotion. Read in that context, sales promotion is an activity which will promote the sales of the assessee by reason of the advertisement and publicity that will be attendant on it or by reason of the incentives or other attractions offered to attract customers for the assessee's products. Payment of commission to representatives is in effect remuneration for work done which will not be sales promotion expenses hit by the limitation in section 37(3A). We are not, therefore, inclined to refer question No. 3 sought by the Revenue.

Accordingly, we direct the Income-tax Appellate Tribunal, Cochin Bench, to state a case and refer the following question of law (question No. 2 sought by the Revenue) for the opinion of this court under section 256(2) of the Income-tax Act, 1961, namely :

" Whether, on the facts and in the circumstances of the case, the assessee is entitled to investment allowance under section 32A of the Income-tax Act, 1961 ?"

Communicate a copy of this judgment under the seal of this court and the signature of the Registrar to the Income-tax Appellate Tribunal, Cochin Bench, for information and compliance.

 

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