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TMI Blog1989 (9) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... he two quality checkers and with reference to 50 per cent of the salaries of 5 supervisors. The details appear at page 1 of the assessee's paper book. The ITO rejected this claim on the ground that the claim was not admissible. 3. In appeal, the learned CIT(A) accepted the claim. 4. Before us on behalf of the Department, it was submitted by Shri D.C. Agarwal, the learned Departmental Representative that r. 6AA was inserted by the IT (8th Amendment) Rules, 1981 only w.e.f. 1st August, 1981 whereas the accounting period of the assessee relevant to the asst. yr. 1982-83 in question closed on 30th June, 1981 and, therefore, no claim could have been allowed by the learned CIT(A). On the other hand, Shri S.K. Gupta, the learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is also no provision enabling retrospective effect to be given to r. 6AA. The result is that no weighted deduction was claimable by the assessee under s. 35B(1)(b)(ix) read with r. 6AA for the assessment year in question. The deduction allowed has, therefore, to be withdrawn. 5. The next ground relates to the allowance of weighted deduction under s. 35B with reference to the amount of Rs. 33,285 representing "Catalogue expenses". It appears that before the ITO, the assessee had only raised a claim under s. 35B amounting to Rs. 7,227.75 being 1/3rd of the total expenses of Rs. 21,683 incurred on printing and stationery, salaries, postage and telegram, photo expenses and business promotion. The claim was disallowed by the ITO. In appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional ground and the assessee cannot say that just because the notice of hearing of the appeal before the CIT(A) would have gone to the ITO, the ITO should be taken to have had noticed of the assessee's additional ground or of the intention of the CIT(A) to entertain that ground. In coming to this conclusion we have duly taken note of the decision of Ahmedabad Bench 'C' in Keshavlal Vithaldas vs. ITO (1981) 11 TTJ (Ahd) 304. In the circumstances we are of the view that this matter should go back to the learned CIT(A) for a decision afresh after giving to the assessee as also to the Assessing Officer a fresh opportunity of hearing. 7. The only other ground relates to the expenses of the assessee's claim under ss. 80HH and 80J. The ITO h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned CIT(A) had not examined the requested of s. 80HH and 80J and had held the assessee to be an industrial undertaking without the same and further that the requirement regarding employment of the requisite number of workers had also not been considered. On the other hand, Shri S.K. Gupta, the learned counsel for the assessee strongly supported the order of the learned CIT(A). 10. We have considered the rival submissions. The learned CIT(A) has not examined the requirements of ss. 80HH and 80J regarding the assessee being an industrial undertaking manufacturing or producing articles. He should have examined the exact procedure followed by the assessee, the operations carried on at the assessee's undertaking as well as outside and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the undertaking employed less than 10 regular workers, it could be heard to say that on any particular day, it wanted to employ additional casual workers, to enhance the figure to the requisite number, but that it could not do so by reason of non-availability of the casual labourers. If it chose to have less than the requisite number of regular workers on its muster roll, it ran the risk of not satisfying the requirement on such days on which the necessary number of casual workers was not available. This requirement was examined by the Bombay High Court in the case of CIT vs. Sawyer's Asia Ltd. (1979) 11 CTR (Bom) 285 :(1980) 122 ITR 259 (Bom). Therefore, on this point also, the order of the learned CIT(A) is set aside and the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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