9911796707
TMI Blog2012 (11) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... ose fully and truly all material facts in respect of deduction u/s 80JJAA. 2. Without prejudice to above the Ld CIT(A) has erred both on law as well as on the facts and circumstances of the case by not accepting that the claim of the appellant amounting to Rs. 44,95,566/- u/s 80JJAA has been wrongly disallowed by ACIT. The ld CIT(A) has erred both on law as well as on facts and circumstances of the case by holding that disallowance of the deduction claim of Rs. 44,95,566/- made by the assessee company under the provisions of section 80JJAA of the Income Tax Act, 1961 in respect of the employment of new workmen by Assistant Commissioner is correct by taking a narrower interpretation of the words employed during the previous year appearing in sec. 80jJAA of the Income Tax Act, 1961 without appreciating the intention of the provisions of sec. 80JJAA to create employment opportunity throughout the year and has taken interpretation of the provisions of sec. 80JJAA in such a manner that will result into Absurd results i.e. for deduction u/s 80jJAA employee should join on or before 4th June, of a year so as to complete 300 days in the year of joining itself. 3. The assessee craves t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sallowance of deduction u/s 80JJAA of the Act. 3. Dissatisfied with the order, the assessee company filed appeal before the Ld CIT(A) and submitted as under:- i) That reopening of assessment after the expiry of four years was bad in law and all the conditions as laid down in proviso to section 147 for reopening the assessments were not applicable to the circumstances of the appellant. ii) That there was a full and true disclosure of all material facts by the company which was necessary for making assessment. iii) That assessee had itself disclosed the particulars and calculation of deduction claimed u/s 80JJAA and had attached the same along with second revised return. iv) That as per provisions of section 147 of the Act, a case may be reopened for re-assessment even after four years from the end of relevant assessment year if the assessee had not disclosed fully and truly all material facts necessary for assessment. v) That Department was very much aware of the claim of deduction by the assessee company which was exclusively made through a revised return and that the issue again found mention when audit party had raised objection. Therefore, the Ld AR argued before Ld C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee filed appeal before this Tribunal. 6. At the outset, the Ld AR submitted that claim u/s 80JJAA was filed along with the second revised return on 26.11.2002 and invited our attention to pages 36 to 38 of paper book wherein audit report in Form No.10DA showing calculation of claim u/s 80JJAA was placed. He further took us to page 51 wherein he invited our attention to deduction u/s 80JJAA allowed by the Assessing Officer in original assessment order. Our attention was also invited to page 54 of the paper book wherein a notice u/s 154 of the Act was placed. In view of the above, the Ld AR argued that Assessing Officer had agreed to the claim of assessee and had duly allowed the same in the assessment order and thereafter even revenue's contention of rectifying the alleged mistake u/s 154 was also not successful and that is why the revenue initiated proceedings u/s 147 of the Act after expiry of four years on the basis of non disclosure of all material facts by assessee. The ld AR further submitted that particulars and calculation of deduction u/s 80JJAA was fuly disclosed inform No.10DA and therefore there was no failure on the part of assessee to disclose the material f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the wages paid to the workmen appointed after 4th June of relevant year will not qualify for claiming deduction under the said section. Reliance was placed in the case of Bajaj Tempo 196 ITR 188 proposing that liberal view of the provisions of income tax should be taken where the overall objective of the provision is promoting economic growth, similarly reliance was placed in the case of KP Verghese v. ITO 131 ITR 597 proposing that interpretation of statutes that leads to absurdity, unjust result should be avoided. Therefore, he argued that in the present case also if the proposition of revenue is to be accepted then assessee will have no benefit of an additional workmen if he is employed after 4th June in a year. 8. The Ld DR, on the other hand, argued that section 80JJAA of the Act is clearly worded and it clearly refers to workmen employed in previous year. He further argued that every year is a different year and argument of Ld AR clearly intermingles different years. Therefore, any workmen employed in the preceding year cannot be said to be employed in the year under consideration for the purpose of claim u/s 80JJAA of the Act. Regarding reopening, the Ld DR argued th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of audit report placed at page 37 of paper book would reveal that annexure to audit report is not in the prescribed form. A New column 5(b) has been inserted by auditor to show number of workmen employed in the year 1999-2000. This column is not part of annexure as required by this section and form No.10DA. Perhaps this column has been inserted by auditor to mislead the Department regarding eligibility of workmen employed in the year 1999-2000 for calculation of workmen employed during the year under consideration. The report has been obtained by assessee and it can be said that insertion of column 5(b) must have been on the instructions of assessee as the benefit was to be enjoyed by assessee and not by C.A. The assessee in a way through audit report had tried to mislead the department by showing number of new regular workmen at 53. Therefore, the assessee had not disclosed fully and truly all material facts for claiming deduction u/s 80JJAA and is clearly hit by the proviso to section 147. The Hon'ble Delhi High Court in the case of Honda Seil Power Product 197 Taxman 415 held that merely because material embedded in material or evidence which the Assessing Officer could h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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