IN THE HIGH COURT OF GUJARAT AT AHMEDABAD INCOME TAX REFERENCE No 145 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH and Hon'ble MR.JUSTICE D.A.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- COMMISSIONER OF INCOME-TAX Versus NILA CONSTRUCTION CO. -------------------------------------------------------------- Appearance: 1. INCOME TAX REFERENCE No. 145 of 1993 MR AKIL KURESHI with MR MANISH R BHATT for Petitioner Notice Served for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH and MR.JUSTICE D.A.MEHTA Date of decision: 18/09/2001 ORAL JUDGEMENT (Per : MR.JUSTICE M.S.SHAH) In this reference at the instance of the revenue, the following question has been referred for the opinion of this Court in respect of assessment year 1984-85 :- "Whether the Appellate Tribunal is right in law and on facts in holding that the assessee is an industrial undertaking and thereby entitled to deduction under sec. 80HH of the I.T. Act ?" 2. We have heard Mr Akil Kureshi, learned counsel for the revenue. Though served, none appears for the respondent-assessee. 3. The learned counsel for the revenue submits that since the assessee is a firm engaged in the construction activity, it cannot be said to be engaged in any manufacturing or production activity and is, therefore, not entitled to deduction under Section 80HH of the Act. The learned counsel heavily has relied on the decision of the Apex Court in CIT vs. N.C. Budharaja and Co., 204 ITR 412. 4. Having heard the learned counsel for the revenue and having gone through the aforesaid decision, we find that there is considerable substance in the submission made by the learned counsel for the revenue. We accordingly hold that the assessee, a firm engaged in construction activity cannot be said to be an industrial undertaking and is, therefore, not entitled to deduction under Section 80HH of the Act. We accordingly answer the question in the negative i.e. in favour of the revenue and against the assessee. The reference accordingly stands disposed of with no order as to costs. (M.S. Shah, J.) (D.A. Mehta, J.) sundar/-