TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 811
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....ised by the assesseein memo of appeal filed with Income Tax Appellate Tribunal, Varanasi (hereinafter called " the tribunal") , reads as under : "1. Because the learned Assessing Officer as well as Commissioner of Income Tax (Appeals) both have erred and acted illegally in not allowing the deduction u/s. 80IB of the IT Act as it stood as on 31.3.1998. 2. Because the assessment is bad on facts & in law and not maintainable." 3. This is the third round of litigation before the tribunal. The assessee filed its return of income with Revenue declaring loss of Rs.71,22,987/- , on 30.11.1998. The case of the assessee was selected for framing scrutiny assessment ,and eventually assessment order dated 20.03.2001 u/s. 144 of the 1961 Act was passed by the AO determining total income of the assessee at Rs.3,03,11,280/- , wherein some additions were made by the AO to the income of the assessee and also taking into account the declaration of the assessee in the computation of total income that "No deduction on account of 80IA have been claimed due to loss during the year". The matter went up to tribunal, and the Allahabad-tribunal vide appellate order dated 17.08.2010 , restored the matter....
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.... of the 1961 Act. 4. The assessee being aggrieved by an assessment order dated 01.12.2017 passed by the AO u/s 254 read with Section 143(3) of the 1961 Act, filed appeal before ld. CIT(A) in third round of litigation , the ld. CIT(A) called for remand report from the AO and again theappeal filed by the assessee was dismissed by ld. CIT(A) , vide appellate order dated 19.02.2019, by holding as under: "7. I have gone through the submissions of the appellant as well as the facts of the case. Admittedly books of accounts, vouchers, details of employees, actual monthly salary paid to them and their addresses were not available/submitted. The conditions of allo ability of deduction u/s 80IA has been prescribed in sub section (2) of this section. Clause (iv) of this sub section reads as under: (iv) in a case where the industrial undertaking manufacturing or produces articles or things, the undertaking employs ten or more workers in a manufacturing process carried on with the aid of power, or employs twenty or more workers in a manufacturing process carried on without the aid of power." 8. It is clearly mentioned in this clause that deduction u/s 80IA shall be allowed to an industri....
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....or the assessee submitted that there are no books of accounts, vouchers and other details etc. available with the assessee, because the record room in the office of the assessee was gutted in the fire which took place on the night of 28.03.2002 in the record room of the office of the assessee, which led to destruction of all books of accounts, vouchers and other records of the company . It was submitted that the assessee did not produce books of accounts, vouchers and other relevant details before the authorities. It was submitted by ld. Counsel for the assessee that the dispute here is whether the assessee had employed 20 or more workers in the manufacturing process, as prescribed u/s 80IA(2) of the 1961 Act. The copy of letter dated 30.03.2002 written by assessee to SHO, Thana(Police Station)Gahmar, , Ghazipur , intimating about the fire taking place in the night of 28.03.2002 in the record room of the office is enclosed and filed in paper book filed by assessee at page number 1 . The said paper book is placed on record in file. It was submitted that the assessee is not in a position to submit any details whatsoever in view of the above fire which destroyed all its records includ....
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....e second round of litigation denied the deduction u/s. 80IA to the assessee, vide assessment order dated 12.12.2011 passed u/s. 254/143(3) of the 1961 Act , on the grounds that during set aside proceedings, the assessee could neither produce relevant books of accounts, bills and vouchers etc. nor the assesse could establish the fulfillment of mandatory four conditions cumulatively which are essential for claiming deduction u/s. 80IA of the Act. The matter again went to the tribunal in the second round of litigation , and the Allahabad-tribunal vide appellate order dated 10.3.2016 in ITA No. 98/Alld/2013 again set aside the matter to the file of the AO with the following observation: "In our view, It s incumbent on the Assessing Officer to examine the claim of the assessee whether the assessee is eligible for deduction u/s.80IA, whether the assessee has complied with all the conditions as stipulated u/s 80I/80IA. In view of this fact, in our opinion, the onus is on the assessee to adduce the evidence and material which may prove that the assessee complied with all the conditions as stipulated u/s.80IA." As directed by tribunal, again notices were issued by the AO u/s. 143(2) & 14....
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.... in a manufacturing process", along with other conditions mentioned in sub section (2). Details of employees have not been submitted by the appellant either before the AO or during the course of appellate proceedings. It has merely been submitted that total salary paid to all employees is 21,91,928/-. This amount also includes staff welfare. Further the condition prescribed under clause(iv) of Section 80IA clearly mentions that 20 or more workers are employed in a manufacturing process. Admittedly, the salary has been paid to workers in a manufacturing process as well as the Office. Further there is no evidence that salary or Rs. less than 1 lac is paid to the employees by the assessee during the year under consideration. If salary of Rs. less than 1 lac is paid, only then the number of employees will be excess of 20 making the unit eligible for deduction. However, it has been discussed above that the deduction is admissible only if 20 or more employees are employed in manufacturing process but in the present case, it is not clear how many employees are employed in the factory and office separately. Further the evidence in the form of bills and vouchers of installation of machinery....
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....he assessee. This is the third round of litigation and the assessee is not able to produce any evidence to justify its claim of deduction u/s 80IA of the 1961 Act. The ld. Sr. DR has rightly stated that even when assessment order was passed by the AO in the first round of litigation , on 20.03.2001 , which was prior to the fire taking place on 28.03.2002, the assessee could not produce any evidences to substantiate that it met the conditions as are prescribed u/s 80IA of the 1961. The assessee could neither demonstrate as of now, that it has employed during the year under consideration ,twenty or more workers in the manufacturing process , nor it could demonstrate as to the installation of plant and machinery during the year under consideration. The exemption/deduction provisions in the taxing statute are to be strictly construed. Reference is drawn to the Judgment and order of Constitution Bench of Hon'ble Supreme Court in the case of Commissioner of Customs(Imports) v. Dilip Kumar and Company , reported in (2018) 95 taxmann.com 327(SC) , and judgment and order of Hon'ble Supreme Court in the case of Ramnath and Co. v. CIT, reported in (2020) 116 taxmann.com 885(SC), wherein it ha....