(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1.0 We have heard Mr. M. R. Bhatt, learned senior standing counsel assisted by Mrs. Mauna Bhatt, learned counsel appearing of the Revenue in this Tax Appeal.
2.0 This Tax Appeal has been filed on the following proposed substantial questions of law.
“[1] Whether the Appellate Tribunal is right in law and on facts in allowing assessee deduction u/s 80IB of I.T. Act without considering that the conditions laid down u/s 80IB of I.T. Act have not been fulfilled?
[2] Whether the Appellate Tribunal is right in law and on facts in allowing assessee deduction of salary amount of Rs. 1,50,000/ being not actually spent?
[3] Whether the Appellate Tribunal is right in law and on facts in setting aside the view of AO that in view of sectioned 80AB no profit from Industrial undertaking is included in the gross total income and hence such deduction would not be permissible?”
3.0 While rejecting the appeal of the Revenue, the Tribunal recorded following findings.
“3. We have considered rival submissions, perused the material on record and have gone through the orders of authorities below. We find that in assessment year 2003 04 also, this very issue was there before the Tribunal for this assessee itself as to whether the assessee is eligible for deduction u/s 80IB or not. In that year also, it was the basis of the A.O. for rejecting the claim of the assessee that the number of workers attending the factory and working in the manufacturing process was less than 10. This issue has been decided by the Tribunal in favour of the assessee in his own case as per para 6 & 8 of the Tribunal order which are reproduced below:
“6. We have considered rival contentions, carefully gone through the orders of the authorities below and found from the record that on the basis of loose muster roll sheets found during the course of survey the A.O. has held that assessee was not having more than 10 workers, therefore, not eligible for claim of deduction u/s.80IB. By the impugned order, the CIT(A) has analyzed the statement recorded by the A.O. during the course of survey and its replies filed by him visavis, inspection report of factory inspector on two occasions and the inspection report of ESI Inspector, wherein number of workers and also the name of workers engaged in the bottle washing unit was mentioned. From the records we find that A. O. has only considered workers engaged in one unit, whereas the assessee was having another washing unit of same activity, therefore, the workers engaged in bottle washing unit was also required to be taken into consideration while computing total number of workers employed by the assessee. From the record we find that as per the wages register, attendance register and inspection reports of factory and ESI Inspectors fully support the conclusion drawn by the CIT(A) to the effect hit assessee was having bottle washing unit also, and the workers engaged therein are also to be taken into consideration for computing the total number of workers employed. The muster roll on which the AO has relied did not contain the names of the workers. The name of workers engaged in bottle washing unit were not entered into muster roll, however, in the wages register and attendance register the names of all these workers were duly mentioned. The detailed finding recorded by the CIT(A) has not been controverted by the department by bringing any positive material on record to this effect. Accordingly, we do not find any reason to interfere in the finding recorded by the CIT(A) thereby treating the assessee as illegible for claim of deduction u/s.80IB on the basis of number of workers employed in its Industrial Undertaking.
8. The next ground of the Revenue relates to deleting the disallowance of salary expenses incurred on the workers. In view of the finding that assessee was employing more than 10 workers, the actual salary paid to them was held to be allowable by the CIT(A). Accordingly, on the same reasoning as given in ground No.I of the department's appeal, we do not find any infirmity in the order of the CIT(A) for allowing claim of deduction on account of salary expenses of the employees. Accordingly ground taken by the Revenue in both the years on account of salary expenses are dismissed.”
4.0 While recording the finding, the Tribunal has relied on its decision with respect to the respondent assessee for earlier Assessment Year 200304. The judgment of the Tribunal has already been affirmed by this Court in Tax Appeal No. 78 of 2012 on 9th August 2012. Since earlier judgment of the tribunal which has been relied on in the impugned order has been affirmed by this Court, and there is no change of circumstances, this Tax Appeal is covered by decision rendered in Tax Appeal No. 78 of 2012. Accordingly, we do not find that either of the three questions raised by the appellant raise any substantial question of law.
5.0 For the aforesaid reasons, this Tax Appeal, being devoid of any merits, is dismissed.
[V. M. SAHAI, J.] Amit [N. V. ANJARIA, J.]