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Leeforad Healthcare Limited, Ludhiana the proceedings u/s 153A and coupled with the fact that no incriminating material or otherwise any other evidence had been found during the course of search that any "Freebies/Gifts" was given to the Doctors/Medical Practitioners, therefore, the findings of the Ld. PCIT (Central) with regard to setting aside of the assessments for making enquiries, relating to the nature of 'Business Promotion' expenses was misconceived. It was further argued that it is settled law that the search assessments have to be framed on the basis of incriminating material found during the course of search and since no incriminating material had been found for any of the years on this issue of 'Business Promotion Expenses', the entire basis for setting aside the already completed assessments was against the facts and circumstances of the case. Reliance was placed on the following judgments by the Ld. Counsel as under:-

ITA 344 to 353-c-2022 -

Leeforad Healthcare Limited, Ludhiana

a). Since no incriminating material had been found with respect to "Freebies / Gifts to Doctors/Medical Practitioners, no adverse view can be taken in respect of 'Business Promotion' expenses as claimed in the return of income as per the binding judgment in the case of 'Kabul Chawla's (supra) case and various other judgments of different Hon'ble High Courts and of the Co-ordinate Benches, particularly the order of the Chandigarh Bench as cited 'Supra".

9.8 Thus, from the various documentary evidences as furnished before us and placed in the paper book, we have no hesitation in holding that the no 'Freebies/Gifts' have been given to the Doctors/Medical Practitioners. We have also gone through the judgment in the case of 'Apex Laboratories Pvt. Ltd.' (supra) in detail and we find that while delivering the judgment, the Hon'ble Apex Court had categorically mentioned about freebies/gifts given to the Doctors/Medical Practitioners and we have also referred to the Regulations of the Medical Council of India of 2002 which debars the Doctors from accepting such gifts and we also note that this judgment relates to the Gifts received by 'Medical Practitioners/Doctors only whereas in the present case, it is a fact on record that the AO, after making in-depth enquiries/examinations/verifications of 'Business Promotion' expenses had found that no 'Freebies/Gifts' were given to Doctors/ Medical Practitioner. Above all, the concerned Assessing Officer, who framed the search assessments has categorically admitted in 'Annotated Report' ITA 344 to 353-c-2022 -

Para 5.7, page 15 & 16 The PCIT has quoted CBDT Our stockiest/Distributors are not 'medical circular, in which, again, it has professionals' and they are not under the been mentioned about Freebies to guidelines of Medical Council of India. Medical Practitioners and their professional associates and the violation of the provisions of Indian Medical Council (2002), have been referred to.

Para 5.8, Page 16 The Ld. PCIT (Central), Ludhiana has grossly In this paragraph, it has been erred in mentioning these facts, since these mentioned by the Ld. PCIT that incentives are being given only to section 37(1) would cover Stockiest/Distributors, under a scheme to make acceptance of Freebies by Medical more sales and a bare look at the judgment of Practitioners, which is prohibited 'Apex Court', which has been placed at pages by law and then, the reference has 129 to 159 of the 'Judgment set' and at so been made to the Judgment of many paragraphs, of the case, it has been 'Apex Court'. clarified, especially at page 153 of 'judgment set' in para 33 that pharmaceutical company gifting the Freebies to Doctors etc. is clearly prohibited by law and not allowed to claim deduction u/s 37(1). In our case, the person concerned, who are receiving incentives etc. ITA 344 to 353-c-2022 -