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TMI Blog2016 (8) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient reasons for rejection of the accounts of assessee. Hence, the CIT (A) and Tribunal were justified in deleting the addition. Both the authorities below have considered the materials placed before them and we see no reason to interfere with the same. - Decided in favour of assessee Disallowance u/s.40A(2)(b) being paid by the assessee to the Excise Department on behalf of its sister concern - Held that:- The assessee company exclusively marketed its product through its sister concerns namely Babul Marketing and Babul Agencies. Accordingly assessee company collected excise duty and paid the same to the Central Excise Department as against the collected dues from these parties. The excess payment was made. The assessee route coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee u/s.80IA made by the Assessing Officer on the ground that: [a] the assessee was manufacturing article which was specified in the list of Xith Schedule (section 80IA(2)()iii); [b] the assessee had employed less than 10 workers in the manufacturing process which was carried out with the aid of payment; and [c] the investment in plant and machinery had exceeded the permissible limit of ₹ 60 lacs? 4. Tax Appeal No.1251 of 2007 challenges the order dated 22/12/2006 made by the ITAT No.ITA NO.963/Ahd/1997 and came to be admitted on the following question of law: Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT (A) deleting the disallowance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal were justified in deleting the addition. Both the authorities below have considered the materials placed before them and we see no reason to interfere with the same. Accordingly, we answer the issue raised in Tax Appeal No.1249 of 2007 in favour of the assessee and against the Department. 7. Now, insofar as, the questions raised in Tax Appeal No.1250 of 2007 and Tax Appeal No.1253 of 2007 are concerned, in paragraph No.14 of its judgment, the Tribunal has observed as under: 14. Now coming to the second aspect that workers engaged by labour contractors are to be counted while counting number of workers. The answer is in affirmative and it is supported by the decision of Jurisdictional High Court in the case of CIT vs. prithviraj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and the AAC were not right in holding that the concerned persons were not employees because they were being paid on piecerate basis or job work basis. In the present case, the Tribunal has found that the assessee has the ultimate control over the affairs of the establishment and that the industrial undertaking of the assessee was employing more than 20 workers through the contractor. Applying the principles laid down by the aforesaid decision to the facts of the present case it cannot be said that the Tribunal was not justified in holding that the assessee is employing 2 0 workers in its industrial undertaking as contemplated by the provisions of cl. (iv) of subs.( 2) of s.80I of the Act. There is no dispute to the extent that if n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2007 in favour of the assessee and against the Department. 8. So far as Tax Appeal No.1252 of 2007 where the question of deleting the disallowance made by the AO under Section 80IA on the ground that the aggregate value of plant and machinery exceed ₹ 60 Lacs and that the undertaking did not employ the prescribed number of workers is posed for our consideration. The Tribunal has also discussed this aspect in its order more particularly paragraph No.12 and 13 and last portion portion of paragraph No.13 is very relevant which reads thus: 13. Looking to the issue from above point of view it has to be held that cars, trucks, dead stock, pumps, etc. cannot be said to be plant and machinery for the purpose of determining c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh its sister concerns namely Babul Marketing and Babul Agencies. Accordingly assessee company collected excise duty and paid the same to the Central Excise Department as against the collected dues from these parties. The excess payment of ₹ 4,88,687/was made. The assessee route collection and payment of excise duty through its trading and profit and account. In this view of the situation, we find that there is no infirmity in the decision of CIT (A) vide which such disallowance has been deleted as the present addition is not falling within the ambit of section 40(A) (2)(b). We uphold his order. Ground raised by revenue is dismissed. 9.1 Accordingly, we answer the issue raised in Tax Appeal No.1252 of 2007 in favour of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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