The Commissioner Of Income Tax, Central Ii, Mumbai v. M/S.kraftware (India) P. Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1916 OF 2009 The Commissioner of Income Tax, Central II, Mumbai ..Appellant. Versus M/s.Kraftware (India) P. Limited ..Respondent. Mr.B.M. Chatterjee with Mrs.Padma Divakar for the appellant.Mr.J.D. Mistry with Mr.Atul K. Jasani for the respondent. CORAM : Dr.D.Y. Chandrachud & J.P. Devadhar, JJ. DATE : 3[rd] February, 2010 P.C. : 1.The learned counsel appearing on behalf of the revenue and the learned counsel appearing on behalf of the assessee state that questions (a) and (b) formulated in the appeal by the revenue are covered against the revenue by the judgment delivered today by this Court in Income Tax Appeal No.2362 of 2009. It may be noted that the companion appeal pertained to the same assessee. The relevant assessment year in question in the present appeal is assessment year 2000-2001. of the Income Tax Appellate Tribunal, insofar as the Tribunal held that the advertisement expenses were not a part of the indirect cost of the export of trading goods for the purposes of deduction under Section 80HHC and that similarly sales promotion expenses cannot also be regarded as a part of the indirect cost of trading goods. The answer to these questions is essentially a pure finding of fact which has been recorded by the tribunal in Para 27 of its judgment. The Tribunal has held that the assessee was engaged in manufacturing silver utensils and that it also traded in utensils in domestic and export markets. The goods manufactured by the assessee were sold under the brand name of the assessee. On the other hand, trading goods were sold in the name of the manufacturers of those goods. The Tribunal has accepted the case of the assessee that the advertisement expenses and the sales promotion expenses were incurred only in connection with the sale of the goods manufactured by the assessee and there was no material whatsoever to indicate that the assessee had directly or indirectly advertised the products manufactured by others which were traded by the assessee. There is a finding of fact that there was no nexus between the advertisement expenses with the trading goods exported by the assessee and that such expenses could not be treated as part of the indirect cost of the goods traded by the assessee. In so far as sales promotion expenses are concerned, similarly the Tribunal has held that no nexus has been proved between the expenditure and the export activity relating to trading goods. In these circumstances, the questions (c), (d) and (e) which relate to advertisement expenses and sales promotion expenses do not raise any substantial question of law. 3.By question (f), the revenue seeks to submit that the advertisement and sales promotion expenses were incurred for promotion of a brand name and should have been treated as capital expenditure. This submission does not appear to have been canvassed before the Tribunal and hence there is no discussion on the issue in the order of the Tribunal. Therefore, this cannot be regarded as a question arising out of the order of the Tribunal. 4.For the aforesaid reasons, there is no merit in the appeal. The appeal is accordingly dismissed. There shall be no order as to costs. (J.P. Devadhar, J.) (Dr.D.Y. Chandrachud, J.)