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2.3 That the assessing officer/DRP erred on facts and in law in not following the order of DRP in appellant's own case for assessment year 2009-10 whereby similar disallowance made on account of free samples distributed to doctors/ medical practitioners were deleted.

3 That the assessing officer erred on facts and in law in making an addition of Rs. 88,85,591 on account of transfer pricing adjustment in respect of the 'international transaction' of business support services. On the basis of the order passed under section 92CA(3) of the Act by the TPO.

4. Ground No. 1 is general and is therefore rejected.

5. Ground 2 to 2.3 relates to disallowance under section 37(1) of the Act of Rs. 5,42,19,943/- being expenditure incurred towards distribution of free samples to doctors/medical practitioners, holding the same to be incurred in contravention of the guidelines issued by Indian Medical Council read with circular 05/2012 issued by the CBDT.

6. The relevant facts, as succinctly stated are that assessee had incurred an amount of Rs. 5,42,19,943/- towards distribution of free samples to doctors/medical practitioners. The Assessing Officer/DRP disallowed the whole of the above expenditure in view of the Circular No. 5/2012 [F. No. 225/142/2012-ITA-II] dated 01.08.2013 issued by the Central Board of Direct Taxes ('CBDT') read with Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 observing that above free samples of medicines distributed by the appellant to doctors/ medical practitioners and others constituted gifts or freebies, which are not allowable in terms of Explanation to section 37(1) of the Act. The relevant portion of the order reads as under:

7. Being aggrieved, the assessee has come up in appeal before us and brought to our notice the Standard Operating Procedure ('SOP') adopted by the assessee to distribute samples to doctors/medical practitioners. It was submitted that the sample so distributed to the doctors/medical practitioners by the appellant are in pursuance of the specific request being made by the latter and such samples are not distributed voluntarily/ suo-moto to any doctor/ medical practitioner in order to influence the latter's discretion of prescribing its medicines to the patients. A reference was made to Regulation 6.8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, (as amended in 2009), which reads as under:

11. Further AR contended that similar disallowance of expenses on sample distribution was made while completing the assessment for the assessment year 2009-10 as well. It was submitted that assessee had challenged the said order before DRP and the DRP vide order dated 05.09.2013, inter alia, deleted the said disallowance. It was thus prayed that issue relating to allowance of expenses on sample distribution is squarely covered in favour of appellant by the order of DRP for the assessment year 2009-10 and therefore disallowance made may be deleted.