Income Tax Appellate Tribunal - Mumbai
Asst. Commissioner Of Income-Tax vs Ms. Richa Chadha on 5 April, 2005
Equivalent citations: [2006]282ITR1(MUM), (2005)97TTJ(MUM)910
ORDER
D.C. Agrawal, Accountant Member
1. This is an appeal filed by the revenue against the order of CIT(A)-XXI, Mumbai dated 12.04.2000. The main issue involved in the appeal is that the CIT(A) is erred in allowing the claim for deduction of Rs. 22,24,193/- Under Section the Act, eventhough the assessee has not regularly employed 10 workers during the relevant previous year.
2. The assessing officer disallowed the claim of deduction Under Section 80IA on the sole ground that during the assessment year in question, the concern of assessee M/s Goodwill Industries did not employ ten or more workers as required in Section 80IA(2)(v). On 22.3.2000, the assessing officer conducted a spot enquiry at the factory premises of the assessee at Silvasa. On that day, he found that manufacturing of chemical products was completely stopped as per the statement of Sri H. Prajapathi, who was employed as chemist. According to him, Goodwill industries had stopped manufacturing activities in the month of October, 1998. As the industry was not functioning, it was not possible for him (A.O.) to ascertain the number of workers working in the factory, he inspected salary register for the assessment year 1996-97 and found some discrepancies and observed as under:-
"1. Shri Kishore B. patel who was a chemist cum plant operator, gets fixed salary of Rs. 2,100/- pm.
2. other names mentioned in the salary register are of workers who are hired on daily wages.
3. No designation of any persons is mentioned in the salary register.
4. In the column of days present, Kishore B patel has worked at an average of 26 days per month throughout the year.
5. Number of days present in the case of workers is ranging from 2 days to 26 days. No bonus, PPF or ESIC has been provided to any of the workers of the chemists during the year.
6. In the month of April, 1996, as per the salary register, Kishore B patel was present for 26 days. There are twelve workers who have worked in two shifts of 12 hours each Shri Sanjay Borase was present for 11.87 days, shri Dinesh yadav was present for 8 days, Shri Rishikesh tiwari was present for 2.91 days and Shri chandan singh was present for 8.66 days. The four workers have worked for very less period compared to the total number of days for which the industry functioned during the month. Similarly, in the month of May, 1996, Shri Kishore was present for 26 days. There are 13 workers who have worked during the month, but Shri chunulal patel was present for 3 days, Shri Ravikaran singh was present for 4 days, Shri sanjay mishra was present for 3.58 days, Shri shivkumar yadav was present for 7 days, Shri pataru singh was present for 5.5 days, Shri dharmendra singh was present for 5 days and Shri Sunder Singh was present for 4 days only. These seven workers have worked for substantially less period vis-a-vis total number off days for which the industry functioned during the month of May. The copy of the salary for the month of May 1996 is annexed to this order as Annexure-I. This trend has been carried out through out the year 1996-97."
He then asked the assessee as to why the claim of deduction Under Section 80IA should not be disallowed as according to him workers employed by assessee were less than ten. It was replied to the assessing officer that provision requires that the undertaking must have employed the requisite number of workers substantially during the period for which relief is claimed. The assessee relied on the decision of Hon'ble Bombay High Court in two cases:-
1) CIT v. Ormerods (I)(P) Ltd., 136 ITR 470 (Bom)
2) CIT v. Harit Synthetic Fabrics Pvt. Ltd. 162 ITR 640 (Bom) However, the claim was rejected by the assessing officer on the ground that workers mentioned in the salary register are casual and not permanently employed. According to him, casual labour engaged on daily wages cannot be considered as employed within the meaning of Section 80IA(2)(v). He carried out analysis of the salary register and prepared following table showing the workers employed in the factory during the financial year 1996-97:-
--------------------------------------------------------------------------------
Month No. of days No. of workers No. of workers present
for which Shri mentioned in the for more than half of
Kishore B. register the days in which
Patel was (including industry functioned
present chemist)
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April, 96 26 12+1 8+1
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May, 96 26 13+1 6+1
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June, 96 26 9+1 9+1
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July, 96 27 14+1 6+1
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August, 96 24 9+1 9+1
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Sept., 96 25 9+1 5+1
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Oct., 96 29 11+1 7+1
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Nov., 96 22 13+1 6+1
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Dec., 96 27 12+1 8+1
--------------------------------------------------------------------------------
Jan., 97 27 19+1 8+1
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Feb., 97 23 14+1 8+1
--------------------------------------------------------------------------------
March, 97 27 16+1 8+1
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Total: 308 From the above table, he inferred that except the month of June and August, 96 the number of workers employed fall below the requisite number. Before the CIT(A), the assessee repeated the same arguments as made before the assessing officer that it has substantially employed ten or more workers.
Main arguments made before the CIT(A) are as under:-
"It is to submit that Sri Kishore B. Patel was a supervisor and chemist employed on a permanent basis and had to be present throughout the month. The criteria adopted by the assessing officer was not correct considering the facts and circumstances of the case. The number of workers employed have not been stable due to lack of facilities in the area. In the absence of facilities, the labourer turnover was very high so much of that during the year in all about 163 workers were employed in place of the mandatory requirement of 120 workers. The supervisor's position was different from those of the workers, hence the number of workers substantially employed on the basis of the number of days the supervisor was present would not be a correct criteria and would give a distorted picture. A better criteria would be the number of days the factory had worked and had produced material. We give below a statement showing the number of days the factory worked as per RGI register under the excise laws, the number of workers and the number of workers present for more than 1/2 the days on the said basis.
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Month No. of days as No. of workers No. of workers present
per excise mentioned in the for more than half of
record register (including the days in which
chemist) industry functioned
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April, 96 16 12+1 11+1
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May, 96 23 13+1 6+1
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June, 96 22 9+1 9+1
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July, 96 25 14+1 8+1
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Aug., 96 17 9+1 9+1
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Sept, 96 8 9+1 8+1
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Oct, 96 14 11+1 9+1
--------------------------------------------------------------------------------
Nov., 96 11 13+1 13+1
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Dec., 96 17 12+1 10+1
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Jan., 97 24 19+1 10+1
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Feb., 97 17 14+1 12+1
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Mar., 97 18 16+1 10+1
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Total: 212 From the above statement, it can be seen that except for the months of May, July and September, the factory had 10 or more workers during the year, and as such, it is deemed to have satisfied the condition of having employed 10 or more workers during the year.
3) The CIT(A), on the other hand, held that the number of workers employed is more than 10 on substantial basis during the relevant financial year (para 2.14 of CIT(A)'s order).
"This section does not put any restrictions on the number of days the unit should junction other than pointing out that the appellant should have employed more than ten workers in case the unit is running with power and more than 20 workers in case the unit is running without the aid of power. There are case laws which state that, the unit must have substantially worked to get the benefit of deduction under the IT Act. In the instant case, the appellant has set up a unit in a backward area, where the appellant has tried to produce an article or thing from out of the available resources in and around the area. The only bench mark that can be employed to ascertain how many workers had worked during the year is the number of days, the appellant had carried on the manufacturing activity, as per the Excise Register RG I which shows the number of days the unit has produced an article or thing. As per this register the appellant has given the following table of workers attendance. Details of workers attendance for the year 1996-97
--------------------------------------------------------------------------------
Month working Mondays Mondays as per No. of workers
days as per required as attendance cum as per
RG-I per RG-I salary register attendance
cum salary
register
--------------------------------------------------------------------------------April, 96 16 160 239.72 13
--------------------------------------------------------------------------------May, 96 23 230 204.31 14
--------------------------------------------------------------------------------June, 96 22 220 260.43 10
--------------------------------------------------------------------------------July, 96 25 250 251.98 15
--------------------------------------------------------------------------------Aug., 96 17 170 203.72 10
--------------------------------------------------------------------------------Sept., 96 8 80 144.60 10
--------------------------------------------------------------------------------Oct., 96 14 140 233.59 12
--------------------------------------------------------------------------------Nov., 96 11 110 204.17 14
--------------------------------------------------------------------------------Dec., 96 17 170 254.13 13
--------------------------------------------------------------------------------Jan., 97 24 240 276.65 20
--------------------------------------------------------------------------------Feb., 97 17 170 231.90 15
--------------------------------------------------------------------------------Mar., 97 18 180 286.51 17
--------------------------------------------------------------------------------Total: 212 2120 2791.71 163
Thus, the CIT(A) considered the excise register and on that basis he held that the assessee has employed 10 or more workers. The assessing officer has incorrectly not relied on the excise register. The CIT(A) did not find any merit in the assessing officer's submissions that the workers employed by the assessee are casual and are not permanent. Further, according to him, there is no mention in Section 80IA (2)(v) to show that exemption Under Section 80IA is available only for permanent workers. The CIT(A) relied on the decision of Hon'ble Karnataka High Court in the case of CIT v. K.G. Yediyurappa reported in 152 ITR 152, according to which, in the absence of any definition of the word 'worker', casual worker should also be counted to ascertain whether a new industry has employed 10 or more workers to claim deduction Under Section 80HHC. Thus, the CIT(A) allowed the claim of the assessee holding that casual workers should also be counted for the purpose of deciding as to whether the concern has employed 10 or more workers.
4. Before us, the learned Departmental Representative argued that the concern did not employ 10 or more workers on regular basis, what the assessee has employed were only casual workers. The requirement of Section 80IA(2)(v) is that 10 workers should be employed for normal period other than strike, lock out etc. For this proposition, he relied on the decision in the case of CIT v. Abhirami Cotton Mills (p) Ltd. reported in 220 ITR 84 (AP). According to him, formula of man days as worked out by CIT(A) is not correct. According to the calculation as given by the assessing officer in his order, the number of workers were less than ten. No PF or insurance was deducted for these workers. The gist of arguments of the learned Departmental Representative is that the casual works should not be counted for deciding as to whether the concern had employed 10 or more workers and only those regularly employed by the concern on the main process should be considered for such counting.
5. The learned authorised representative of the assessee, on the other hand, argued that there is no requirement of the statute that only those who work regularly or those who are permanently employed should be considered for the purpose of Section 80IA. The excise register inspected by the assessing officer has been incorrectly not relied by the authorities. This register is regularly maintained by the assessee, inspected and verified by the excise authorities and therefore, no. of workers as mentioned in such register should be considered for the purpose of counting. He further argued that the condition relating to 10 or more workers should be substantially satisfied and it is not necessary that for all time the assessee should employ 10 or more workers. For this proposition, the learned authorised representative of the assessee relied on the following decisions
1. 250 ITR 675 (Del) CIT v. Taluja Enterprises (P) Ltd.
2. 29 TTJ 507 (coch) Kanan Latex Industries (P) Ltd. v. ITO
3. 122 ITR 259 (Bom) CIT v. Sawyer's Asia Ltd.
4. 162 ITR 640 (Bom) - CIT v. Harit Synthetics Fabric (Pvt) Ltd.
5. 176 ITR 470 (Bom) - CIT v. Ormerods (I) Pvt. Ltd., According to assessee, there may not be any distinction between casual and regular worker. Thus, casual, temporary, regular workers, all should be considered for counting. He also relied on the definition of 'worker' given in Factories Act, according to which, the worker means a person employed directly or through any agency whether for remuneration or not for any manufacturing process.
6. The learned authorised representative of the assessee also pointed out that the claim of the assessee for deduction 80IA has been allowed by the department for the assessment year 96-97 and assessment year 98-99. In other words, the claim was allowed in earlier assessment year and also in the subsequent assessment year even though assessment year 96-97 was re-opened Under Section 147.
7. We have heard the rival submissions and considered the facts and materials on record including the case laws cited before us. The main issue in the present case is that whether the casual workers employed and those employed on main manufacturing process by the assessee should be considered for the purpose of Section 80IA(2)(v). We find that, assessee had employed casual workers for carrying out manufacturing process. Some of them were not present through out the month as observed by CIT(A). Part of these workers were employed on main process.
8. Section 80IA(2)(v) during the relevant period reads as under :-
80-IA.(2) (i).. ..
(ii)...
(iii) ...
(iv) ...
(v) in a case where the industrial undertaking manufactures or 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.
There are two limbs of this issue. The first one is who should be considered as employee in a manufacturing process carried on by the assessee, whether those who were employed in the main manufacturing process or also those who are employed for subsidiary process supporting the main manufacturing process. The other limb of the issue is, who should be counted as workers, whether those who are regularly / or permanently employed or in addition to regular and permanent, those who are casual workers employed by the assessee for carrying out manufacturing process whether employed in the main process and /or in supporting or subsidiary activities. Another supplementary issue for consideration is whether only substantial compliance of the condition is to be ensured or there should be a complete compliance in the sense that 10 or more workers should be employed through out the year and if there is any fall below ten on any day of the year then it should be treated as non compliance of the condition of Section 80IA(2)(v).
9. There is no dispute that assessee is an industrial undertaking manufacturing chemical products with the aid or power. Now, what is to be seen is whether this undertaking has employed 10 or more workers in manufacturing process. According to us, a manufacturing process means not only manufacturing activity but also such other activities supporting the main manufacturing process. Thus, in a chemical factory, if certain workers are employed for bringing chemicals to the site or those who are employed for their protection and safety, or those who are employed for maintaining and preserving the final product, or its transportation can also be said to be employed for in the manufacturing process. Therefore, it can not be said that we have to consider for the purpose of Section 80IA(2)(v) only those employees who are involved in the main process. Thus those workers who are employed for such subsidiary activities will also be part of manufacturing process and hence they need to be counted for the purpose of deciding as to whether the concern employed 10 or more workers. In fact there is nothing on the record so as to suggest as to how many of them were employed for main process and how many of them were not involved in main process. Only argument of the revenue has been that the workers were not regularly employed but were only casual workers. From this it was suggested that the casual workers were not the part of main manufacturing process. Thus, it became necessary to deal with this part of the issue as to whether only those who are involved in the main process should be considered for the purpose of counting.
10. As per Section 2(m)(1) of the Factories Act, the definition of worker is as under:-
(1) worker means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to or connected with the manufacturing process or the subject of the manufacturing process but does not include any member of the armed forces of the union;
Thus, worker includes a person, who is not only in manufacturing process but also in cleaning any part of the machinery or premises used for manufacturing or in any kind of work incidental to or connected with manufacturing process. Further, it is not necessary that ten or more workers should be employed through out the year. What is necessary is that there should be substantial compliance of the provisions of Section 80IA (2)(v). If for most of the period for which manufacturing process continued, the assessee has employed more than ten workers, may be in the main manufacturing process and / or in subsidiary process relating thereto, then, it is a substantial compliance of the provisions. This view is supported by ITAT, Cochin in Kanan Latex Industries (P) Ltd. v. ITO in ITA No. 465/Cochin/84 reported in 29 TTJ 507.
11. According to us, a manufacturing process would start from storage of raw material till storage of finished goods. Thus, the workers involved in bringing raw material from storage to factory and those storing finished goods can also be said to be employed in the manufacturing process. Similar is view has been expressed by Hon'ble Allahabad High Court in Sultan & Sons Rice Mills - 272 ITR 181 (All).
"the expression of manufacturing process should interpreted in its ordinary sense and should not be confined or restricted to the actual manufacturing alone. The processes which are intimately connected with actual manufacturing process will also be within the expression. The word "employed ten or more workers in the manufacturing process" normally would cover the entire process carried on by the industrial undertaking of converting the raw material into finished goods. The workers. The work of ten or more workers employed in the manufacturing process should integrally connected with the manufacturing process. The work should be reasonably connected with and be part of the manufacturing. The various processes starting from purchase of raw material till the sale of finished goods form integral part of the manufacturing process and workers and labourers employed in this process are workers employed in the manufacturing process."
In Chillies Exports House Ltd. v. CIT - 25 ITR 814 (SC) Hon'ble Supreme Court while dealing with the word 'manufacturing process' held on the basis of decision of Chowgule and c/o. Pvt. Ltd v. UOI (1981) STC 124 (SC) that word "processing" has not been defined in the Act and must therefore be interpreted according to its plain natural meaning. Webster Dictionary gives following meaning of the word "process" :
"to subject to some special process or treatment, to subject (especially raw material) to a process of manufacture, development or preparation for the market, etc., to convert into marketable for as live stock by slaughtering, grain by milling, cotton by spinning, milk by pasteurising, fruits and vegetables by sorting and repacking"
Thus, the act of processing start from initial treatment till making it in a maketable form including sorting and repacking. If that is so then workers employed for chain of activities involved in processing should be counted as employed for manufacturing process. In view of this, we do not agree with learned Departmental Representative that only those who are involved in the main manufacturing process should only be considered for the purpose of counting. If manufacturing process consists of certain chain of activities starting from storage, bringing to manufacturing site, manufacturing process sorting, packing and storage, then all the workers involved in all these activities should be considered for counting the requisite number.
12. The next issue involved is as to whether only permanent employees should be considered for counting or as to whether casual, temporary adhoc, or even employed by contract should also be considered for this purpose. For resolving this issue, we derive support from the decision of Hon'ble Karnataka High Court given in the case of CIT v. K.G. Yediyarappa & Co. --151 ITR 152 (Kar), wherein in the context of Section 80H(2)(iv) whose language is similar to Section 80IA(2)(v), it was held that "Section 80HH of the Income tax Act, 1961, which provides for deduction in respect of profits and gains from newly established industrial undertakings or hotel business in backward areas, requires that the industrial undertaking should be employing ten or more workers in a manufacturing process carried on with the aid or power. All that the section states is that the assessee should employ ten or more workers in the manufacturing process. The wording of the section is unambiguous. In the absence of any definition of word "worker", the court has to take its ordinary meaning which may mean casual, permanent or temporary. There is, therefore, no reason why the work "worker" should not include all these three categories. Hence, even casual workers should be counted to ascertain whether a new industrial undertaking has employed ten or more workers for claiming deduction Under Section 80HH".
Thus, we do not agree with the view of learned Departmental Representative that only those who are regularly employed should only be considered for the purpose of counting. We, rather, rely on the view of the decision of Hon'ble Karnataka High Court (supra) and also relied on by learned counsel for the assessee, that casual, temporary or permanent employees all should be considered for the purpose of counting. This is also supporting by the definition of "worker" used in the Factories Act and quoted above.
13. Hon'ble Gujarat High Court in CIT v. V.B. Naraina 252 ITR 884 (Guj) said that workers even on contract / piece rate basis should be counted as if employed by the assessee in the manufacturing process. Hon'ble Kerala High Court in the case of CIT v. Indian Resin and Polymers (235 ITR 005 (Kerala)) held that temporary and casual workmen apart from permanent workmen employed by assessee should be taken into consideration for finding out whether assessee satisfied the condition laid down in Clause (iv) of Section 80HHC. Section 80HHC (iv) reads as under:-
(2) This section applies to any industrial undertaking which fulfils all the following conditions, namely :--
(i) it has ..
(ii) it is not...
(iii) it is not ...
(iv) it 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.
14. This provision of Section 80HHC(2)(iv) is similar with the provision of Section 80IA(2)(iv). Hence, we can derive support from the decision of Hon'ble Kerala High Court for our view that temporary and casual workers apart from permanent workmen should also be counted for knowing as to whether the concern has employed ten or more workers.
15. Another related issued raised by learned counsel for the assessee is as to whether there should be complete compliance of the provision of Section 80IA(2)(v) in as much as for all time of the financial there should be ten or more workers employed or there can be substantial compliance of the provision in as much as for most of the part of the financial year, there can be ten or more workers employed in the factory for manufacturing process and it would not be fatal if for some part of the financial year, the number is reduced below ten.
16. We find that the total number of workers as per RG-I register including the chemist worked for all the months of the year were more than ten as per the chart given by the CIT(A) and reproduced above. However, so far as presence of workers is concerned, we find from the order of CIT(A) that they were ten or more for more than half of the days during the period, when industry functioned except in the month of May, July and September, 96. Thus, only in three months in the financial year, number of workers present for more than half of the days in which industry functioned were ten. However, as per RG-I register as observed above, number of workers were ten or more through out the year. If we consider the excise register as such, then we do not find any fault in the claim of the assessee because nowhere they were less than ten at any time during the year. Even if we consider the number of workers present in the month then we find that more than ten were present for more than 50% of the days for nine months during which factory worked. Thus, they were ten or more workers present for substantial period of time.
17. After considering the arguments of the learned counsel for the assessee as well as of the learned Departmental Representative and also the decided cases on the subject, we tend to agree with the views of the learned counsel for the assessee that there can be substantial compliance and not strict compliance. It is not necessary for the purpose of getting benefit Under Section 80IA there should be literal and complete compliance of Clause (iv) i.e. for all the time in the financial year, there should be ten or more workers if the factory is running with aid or power. The need for substantial compliance will also arise in case of a factory which is seasonal or which is temporarily closed due to lock out or strike or due to some other natural calamity. In that situation there cannot be a complete compliance of the condition laid down in Clause (v) of Section 80IA(2). We have to see that during the period for which factory worked, there were 10 or more workers for most of the time. Our view is also supported by the decision of Hon'ble Bombay High Court in the case of Ormerods (I) P. Ltd. -- 176 ITR 470(Bom) which held that "in order to qualify for relief and satisfy the requirements of Section 84 of the Income tax Act, 1961, the undertaking in a manufacturing process with the aid or power must have employed ten or more workers substantially during the period for which the relief was claimed. There could be no hard and fast rule by which one could determine whether there had been substantial compliance. It is for the authority or the court to decide it based upon the facts in the particular case. Whether the Tribunal found that though the number of workers at a certain period was reduced to six, on an average there had been ten workers employed in the undertaking and this was sufficient and that the assessee was entitled to the relief Under Section 84 of the Income tax Act, 1961."
Similar view was also expressed by Hon'ble Delhi High Court in CIT v. Taluja Enterprises P. Ltd - 250 ITR 675 (Del) according to which "In order to qualify for relief Under Section 80J(iv) of the Act, substantial compliance of the requirement with the new industrial undertaking must have employed in the manufacturing process carried on with the aid of power ten or more workers, is all that is required. The undertaking must have employed ten or more workers substantially during period for which relief is claimed. There can be no hard and fast rule by which one can determine whether there has been substantial compliance. It is for the authority or the Court to show decide based upon the facts. Accordingly, the assessee was entitled to relief Under Section 80J since it had employed more than ten workers for nine months of the accounting year and less than ten workers for the remaining three months."
Hon'ble Andhra Pradesh High Court in CIT v. Abhiram Cotton Mills P. Ltd. 220 ITR 84 (AP) was of the view that for the purpose of compliance of the condition that there should be ten or more workers employed during normal period could be considered and the period of absentism due to strike / lockout / temporary closure should be excluded. The employment test should be understood in the normal circumstances. In view of the above, we hold that if there were ten or more workers employed for substantial part of working period of the factory carrying on manufacturing process, then it would be sufficient compliance of the condition laid down in 80IA(2)(v). In the present case of the assessee, as found by CIT(A) and as mentioned in excise register (RG-I) of the assessee there was ten or more workers employed in the factory and ten or more workers were present for more than 50% of the working days of the factory for all the months in the year except three months, we hold that there was substantial compliance of the condition. The absence of ten workers for some part of the months, in our view will not be fatal. There could be absence of workers for various reasons. Some of them may have been expelled from the factory and new ones may have been employed. The arguments of the learned Departmental Representative rested on the point that there was a quick turnover in the employment. The workers being casual were turned out and new casual workers were employed. According to him, section requires that same workers should continue to be employed during the whole year. We do not agree with this view. Hon'ble Karnataka High Court in K.G. Yediyurappa's case (supra), casual and temporary workers should also be counted for the compliance of the condition of Clause (iv) of Section 80IA(2); there is no merit in the argument that if there was hiring and firing of casual workers or that they were not regular, they should be excluded from the reckoning. Casual worker is always casual. He can be fired at any time and hired as required by the employer. Another argument raised by learned Departmental Representative was that no PF or insurance was deducted for some workers and hence they should not be considered for counting. There is no such requirement in the law that only those workers in whose case PF / insurance is deducted should only be considered for counting. We cannot put another condition in the statute if it does not exists. Quality, type or category of workers is not mentioned in the statute. Hence, in our view all types of workers, whether those in whose case PF / insurance is considered by the employer or those in whose case such deduction is not made like casual / temporary workers, should be considered for the purpose of counting the number ten. In a beneficial provision, additional condition should not be read if they are not specifically provided by the legislature. If by normal interpretation of the provision, benefit is available to the tax payer then such benefit should not be denied by putting a condition which does not exist.
18. Finally, even the department has allowed the claim of the assessee in the earlier and subsequent year after reopening the case on the same issue. The learned Departmental Representative could not point out how the facts of this case are different from those of earlier and subsequent years. Following the principle of consistency the claim of the assessee is also allowable.
19. In view of above discussion, we hold that there was a substantial compliance of Section 80IA(2)(v) and the assessee is entitled to the benefit available in that section. We, therefore, uphold the order of the CIT(A) and dismiss the appeal of revenue.
20. In the result, the appeal of the revenue is dismissed.