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TMI Blog2020 (11) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ys of such employees, on whose salary deduction has been claimed by assessee, are not available on record. Therefore, we are unable to verify, whether necessary condition of 300 days stands fulfilled. We also agree with Ld.CIT.DR that nothing on record placed before us reveals that this is the 3rd year of claim by assessee as has been submitted - issue needs to be remanded to Ld.AO to verify these details in terms of new employees having satisfied the 300 days criteria during the year. We direct assessee to provide all details regarding number of regular workmen/employees, number of new workmen/employees added for each of the immediately three preceding assessment years to Ld.AO. Ld.AO is then directed to analyse fulfilment of the condition in respect of new employees/workmen against whom the claim has been made by assessee under section 80JJAA of the Act. Ld.AO is then directed to allow deduction under section 80 JJAA Foreign Tax credit - HELD THAT:- AO rejected the claim as assessee had made the additional FTC, by way of written submission without any evidences. In our view this issue needs to be remanded to Ld.AO to consider the claim of assessee in light of evidences/documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle or thing as per the conditions laid down under section 80JJAA. And; the condition of 300 days to be fulfilled by the regular workmen as per the provisions does not stand fulfilled. 4. It has been submitted by Ld.AR that Ld.AO did not allow the claim following decision of Hon ble Delhi Tribunal in case of LG Electronics India Pvt.Ltd reported in (2013) 33 Taxmann.com 465, wherein, it was held that only new workmen employed for a period of 300 days in relevant previous year are eligible for deduction under section 80 JJAA of the Act. He also placed reliance on Full Bench by decision Hon ble Supreme Court in case of Commissioner of Customs (Import) Vs. Dinesh Kumar Co. Ors. reported in Civil Appeal No.3327 of 2007 by order dated 5. In respect of the full amount of foreign tax credit claimed by assessee, it was observed by Ld.CIT(A) that assessee has not submitted any letter of claim before Ld.AO for additional foreign tax. And that assessee had only by way of written submission dated 05/07/2016 filed the claim of foreign tax credit submitted before Ld.AO. Ld.CIT(A) was of the opinion that assessee did not claim additional foreign tax credit in its return of income during the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced reliance on observations of Ld.CIT(A) and para 4.2 of impugned order. He submitted that Ld.CIT(A) relied on his order for assessment year 2012-13. He thus submitted that nothing on record establishes the submission of Ld.AR that this is the 3rd year of claim. Ld.CIT.DR submitted that details with regard to employees on salary deduction has been claimed under section 80JJAA of the act has not been produced in the paper book. He thus requested for the issue to be remanded to authorities below for verification. 14. We have perused submissions advanced by both sides in light of records placed before us. 15. We note that the Ld.AO denial of benefit to assessee is based on the reasoning that assessee was denied benefit against these employees in the 1st year of their employment and that assessee being a software development company is not eligible for deduction. 16. We note that the 1st of objection of Ld.AO regarding nonsatisfaction with respect to additional wages paid to new employees in the 1st year of employment is concerned, this Tribunal has expressed following view in case of Texas Instruments (India) Pvt.Ltd vs ACIT (supra): 9. We have given a very careful consideration to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction for the reason that the workmen did not work for 300 days or more but if the next two Assessment years, if he works for more than 300 days each, then the deduction u/s.80JJAA of the Act has to be allowed. It is not proper to say that if the deduction is refused in the first year of employment of the new employee then for the next two succeeding Assessment Years also, the benefit of deduction will not be available. Such an approach defeats the very purpose for which deduction u/s.80JJAA of the Act is allowed for three consecutive Assessment years. This aspect has now been clarified in the Finance Act, 2018 by adding a second proviso to the definition of additional employee in Explanation (ii) to Sec.80JJAA of the Act. Even prior to such curative or clarificatory amendment, we are of the view that the claim for deduction u/s.80JJAA of the Act cannot be and ought not to have been disallowed on this ground. We therefore direct that the deduction claimed by the Assessee should be allowed. 17. From the above observations, there is no doubt that assessee cannot be denied deduction under section 80JJAA of the Act, provided that, such employees fulfils the condition of being employ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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