The supreme court of India has declared that distribution of physician's sample by pharmaceutical companies to the medical profession is in nature of advertisement expenditure falling within restrictive provisions of sub section (3A) of section 37 of Income Tax Act.
The nature of the advertisement or publicity depends upon the nature and quality of the article in question. The public would not buy a drug just because it is advertised repeatedly or publicised through posters or announced on the TV etc. They should have confidence about the curative value of the drug and such confidence could be created mainly by the medical practitioners prescribing the drug.
It was contended by appellant that the physician's samples were distributed only to doctors & therefore the expenditure incurred was not advertisement, publicity or sales promotion. The purpose of such distribution was to obtain a feed back from medical profession as to the efficacy of the distributed drugs.
The Supreme Court observed that the object of distribution of samples of the drugs to the doctors is to make them aware that such drugs are available in the market in relation to the cure of a particular affliction and therefore to persuade them to prescribe the same in appropriate cases.
But the expenditure on physicians samples distributed to doctors by pharmaceutical companies is outside the scope of sub section (3A) of section 37 of the Act. Hence the supreme court of india has declared that the physician's samples distributed by pharmaceutical companies come under the ambit of advertisement.