- (1.) THE Tribunal has referred the following two questions of law arising out of its order dt. 17th Sept., 1982 in respect of asst. year 1976 -77 : 1. "Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the firms engaged in the construction of dams, constituted an industrial undertaking within the meaning of S. 5(1)(xxxii) ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in holding that the interest of the assessee in the assets of the firms qualified for exemption under S. 5(1) (xxxii) ?"
(2.) THE brief facts of the case are that the assessee is a partner in the firms M/s Mittal and Co., Project Works, Dholpur; M/s Mittal & Co., Dholpur and M/s Mittal & Co., Bombay and had credit balances. The firms were engaged in the construction of dam. It was claimed that the said three firms are industrial undertaking within the meaning of S. 5(1)(xxxii) of the WT Act, 1957 and the value of the assets forming part of such industrial undertaking belonging to the firms in which the assessee was a partner, was exempt under S. 5(1)(xxxii). The claim of the assessee was rejected by the WTO. The matter was challenged before the AAC and reliance was placed on the decision of Delhi High Court in the case National Projects Constructions Ltd. vs. CWT (1969) 74 ITR 465 (Del) wherein it was held that the company engaged in the construction of dams and barrages was an industrial company. The submission of learned counsel for Revenue is that in the following case it was held that the construction company is not an industrial company in accordance with the provisions of the IT Act -CIT vs. Minocha Bros. (1986) 52 CTR (Del) 346 : (1986) 160 ITR 134 (Del), CIT vs. N.U.C. Pvt. Ltd. (1980) 126 ITR 377 (Bom) and CIT vs. Oricon Pvt. Ltd. (1988) 74 CTR 20 (Bom) : (1989) 176 ITR 407 (Bom). The learned counsel for the assessee has placed reliance of Orissa High Court in the case of CIT vs. N.C. Budharaja & Co. (1980) 121 ITR 212 (Ori), wherein also the construction of dams was held to be an industrial undertaking. It was also brought to the notice of the appellate authority that in the case of another partner Smt. Kanak Jain, who was a partner in the firm M/s Mittal & Co. Bombay, the benefit under S. 5(1)(xxxii) has already been allowed by the assessing authority. The order of the AAC was confirmed by the Tribunal.
(3.) IN CIT vs. Pressure Piling Co. (India) P. Ltd. (1980) 126 ITR 333 (Bom) the Bombay High Court has held while interpreting the provisions of S. 84(1) of the IT Act that by subjecting the concrete mixture which consisted of several articles to certain process alongwith iron bars, something new was brought into being. By the piling process something new which ultimately formed part of the construction came into being and since the end product of the piling process was something which had an independent existence and an independent entity and was described as a pile, it was an article for the purpose of S. 84(2)(iii) since it was brought into being by a special process of production, therefore, the assessee was engaged in the "manufacture or production"of 'articles' which the meaning of S. 84(2)(iii) and was entitled to relief under the section. In Shankar Construction Co. vs. CIT (1991) 94 CTR (Kar) 155 : (1991) 189 ITR 463 (Kar) the matter before the Karnataka High Court was with regard to investment allowance under S. 32A and it was held that construction of 'dam' was an industrial undertaking entitled to investment allowance. It was held that where there is systematic activity organised by co -operation between employer and employees for the production and/or distribution of goods and services calculated to satisfy human wants and wishes, prima facie, there is an industry from the purview of S. 32A.;