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TMI Blog2017 (8) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is engaged in the activity of manufacture or that foremen were not employed for the process of manufacture, in the particular undertaking of the assessee, for which, benefit under Section 80IB(2)(iv) was sought. Though this Court, after having gone through the material adduced on record by appellant-department vis-a-vis impugned order passed by the learned Appellate Tribunal, is of the view that no substantial question of law arises for determination of this Court, but otherwise also, as has been discussed hereinabove, learned Tribunal has correctly dealt with each and every aspect of the matter, taking into consideration law laid down by Hon’ble Apex Court Kondiba Dagadu Kadam vs. Savitribai Sopan Gujarat [1999 (4) TMI 600 - SUPREME COURT OF INDIA] as well as the rule occupying the field. This Court, after having carefully examined the text of questions of law formulated in the appeal vis-a-vis findings recorded by learned Appellate Tribunal, finds that questions framed by the appellant-department are pure questions of fact, which definitely cannot be looked into in the present proceedings, and as such present appeal deserves to be dismissed. - Decided against the reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. The only issue being as to whether the assessee is compliant of the said provision or not. From the bare reading of sub-clause (iv) reproduced supra, it is evident that the undertaking of the assessee, must have employed ten or more workers in a manufacturing unit carried out with the aid of power. 10. Otherwise assessee being a manufacturing unit, is entitled to the benefits of deductions, fulfilling all other conditions specified in sub-section (2) of Section 80IB of the Act, is not in dispute. 11. In the instant case, assessee is carrying on the activity of manufacturing knitted cloth with the aid of power. It is not in dispute. 12. The Assessing Officer, in a tabulated form, depicted employment status of each one of the workers so employed by the assessee on monthly basis. From a reading of para-5.1 of order dated 30.03.2006 (Annexure P-1, page-7), it is evident that assessee had not employed more than ten workers for more than fiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect decisions of various courts/tribunals and not in terms of suspicions, surmises and conjectures. It is only empirical evidence and not mathematical exercise that is relevant and decisive, in ascertaining the compliance with the relevant statutory condition. It is not statutorily incumbent on the appellant to explain and justify day to-day employment of such workers, based on the product or outcome of various statistical formulations. Therefore, having regard to the submissions made by the appellant, relevant record and above discussions, it is evident that the appellant has substantially complied with the said statutory condition of employment of workers. Consequently, such findings of the A.O., based on pure surmises and suspicion are not sustainable and, hence, found unacceptable. 16. Perusal of the order dated 17.11.2008 (Annexure P-3) passed by the Tribunal, only reveals the aforesaid findings to have been affirmed. 17. While contending that in fact the Tribunal had concurred with the findings of the Assessing Officer, Ms. Vandana Kuthiala, learned counsel, invites our attention to para-10 of the order, which we reproduce as under:- 10. It is evident from the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring process. In fact, Tribunal was not even required to answer the same, for there was no dispute as to whether the undertaking of the assessee is engaged in the activity of manufacture or that foremen were not employed for the process of manufacture, in the particular undertaking of the assessee, for which, benefit under Section 80IB(2)(iv) was sought. 20. Though this Court, after having gone through the material adduced on record by appellant-department vis-a-vis impugned order passed by the learned Appellate Tribunal, is of the view that no substantial question of law arises for determination of this Court, but otherwise also, as has been discussed hereinabove, learned Tribunal has correctly dealt with each and every aspect of the matter, taking into consideration law laid down by Hon ble Apex Court as well as the rule occupying the field. 21. This Court, after having carefully examined the text of questions of law formulated in the appeal vis-a-vis findings recorded by learned Appellate Tribunal, finds that questions framed by the appellant-department are pure questions of fact, which definitely cannot be looked into in the present proceedings, and as such present appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l after the 1976 amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High court. Of course, the proviso to the Section shows that nothing shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. The proviso presupposes that the court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated ate by it. The existence of a substantial question of law is thus, the sine-qua-non for the exercise of the jurisdiction under the amended provisions of Section 100 C.P.C. 26. In Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, the court reiterated the statement of law that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law. 9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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