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TMI Blog2016 (11) TMI 1604X X X X Extracts X X X X X X X X Extracts X X X X ..... lfare legislation. Therefore, the explanation of the assessee is contrary to the existing statutory provisions. Tribunal is of the considered opinion that Shri. Sowrirajan stay in the factory premises in the night cannot be considered as employment in the manufacturing process. Coming to the consultant so long as the consultant is not shown as an employee of the assessee in its pay role, he cannot be considered as an employee participating in the manufacturing process. The assessee may consult several consultants for several purposes including legal and technical aspect. It is not known, what are the functions the consultant performed in the manufacturing process of the assessee. Unless and until, it is established that the consultant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative for the assessee submitted that, that is the style of working of Shri. Sowrirajan. On a further query from the bench how the assessee could employ an individual for 24 hours without giving any leave or break as required under the labour legislation, the learned counsel for the assessee could not clarify anything. Referring to the judgment of the Allahabad High Court in CIT Vs. Sultan and Sons Rice Mill reported in 2005 (272) ITR 181, the learned representative submitted that when the manufacturing process was automatic, a person can also be employed in the manufacturing process as well as Chowkidar. On a query from the bench, the learned counsel for the assessee clarified that the manufacturing process of diesel generator is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing officer found that the assessee has employed less than 10 employees in the manufacturing process. Therefore, the assessee is not eligible for deduction under Section 80IA. Admittedly, the assessee engaged in the business of assembling the diesel generators. The question arises for consideration is how many employees are employed by the assessee in the process of manufacturing diesel generator. If the consultant and chowkidar was excluded, admittedly, the workers are less than 10. By placing reliance on the Allahabad High Court in Sultan and Sons Rice Mill (supra), the assessee claims that even casual labourers also have to be considered as employees . The casual labourers have to be considered as employees in the manufacturing proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring process. 5. Now coming to the consultant so long as the consultant is not shown as an employee of the assessee in its pay role, he cannot be considered as an employee participating in the manufacturing process. The assessee may consult several consultants for several purposes including legal and technical aspect. It is not known, what are the functions the consultant performed in the manufacturing process of the assessee. Unless and until, it is established that the consultant has performed a role in the manufacturing of diesel generator, this Tribunal is of the considered opinion that such a consultant cannot be considered as an employee participating in the manufacturing process of the assessee. In those circumstances, this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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