Case: C.I.T Vs. N.C.Budharaja And Co

counsel for t he Revenue, disputes the correctness of the assessees submission. According to him sub-section (2) of Section 32-A must be interpreted and understood in the following manner: Clause (a) speaks of acquisition of a new ship or aircraft while clause (b) speaks of new machinery or plant installed (i) for the purposes of business of generation or distribution of electricity or any other form of power, (ii) in a small scale industrial undertaking for the purposes of business of manufacture or production of any article or thing, and (iii) in any other industrial undertaking for the purposes of business of construction, manufacture or production of any article or thing; if an assessee installs any new machinery or plant for the construction of ships he can claim investment allowance only under clause (b)(iii); he cannot claim it under clause (a) for the reason that clause (1) is confined only to an assessee who acquires i.e., who purchases a new ship o r a new aircraft after the specified date and the investment allowance is granted on the actual cost of ship or aircraft; the meaning of the word "construction" as well as the word "thing"0 59 Cal App 2d 255: 138 P. 2d 763, 768 1 (1861) 11 CB (NS) 246: 142 ER 791 2 (1903) 88 LT 803: 19 TLR 500must be determined having regard to the context in which the said words occur viz., machinery or plant installed in an industrial undertaking for production of any article or thing; the word "construction" in the sub-clause is thus akin to manufacture or production; similarly the expression "thing" is used as interchangeable with the expression article; a perusal of the list in the Eleventh Schedule reinforces this submission inasmuch as the articles and things mentioned in the Eleventh Schedule are all moveables; it would not be correct to associate the word "construction" with the word "thing"; the appropriate way to read them is in the order in which they occur in the sub-clause says the learned counsel. 27.Though at first sight, the use of the words "construction" and "thing" appear to lend some substance to the contention of the learned counsel for the assessee, a deeper scrutiny and in particular the legislative history of the relevant provisions militates against the acceptance of his submission. Subclauses (ii) and (iii) of clause (b) of sub-section (2) of Section 32-A were substituted by Finance Act (No. 2) of 1977 with effect from April 1, 1978. Prior to the said amendment, the sub-clauses read as follows- "(ii) for the purposes of business of construction, manufacture or production of any one or more of the articles or things specified in the Ninth Schedule; or (iii)in a small scale industrial undertaking for the purposes of business of manufacture or production of any other articles or things." * 28.The unmended sub-clause (ii), which corresponds to present sub-clause (iii), was thus confined to the "articles and things" in the IXth Schedule. The IXth Schedule, since omitted, contained as many as 33 items. Item 15 therein related to "ships". All the items referred only to moveables; none of them refers to an immovable object like a building, factory or bridge. Since the appropriate word in the case of ships is "construction" in common parlance one speaks of construction of ships and not manufacture of ships the legislature used the expression "construction" in unamended sub-clause (ii). The said sub-clause also referred to "articles or things", which is the heading of the IXth Schedule After amendment, sub-clause (ii), which became sub-clause (iii) underwent a certain change. Not only were the words "in any other industrial undertaking were added at the beginning of the sub-clause, the applicability of the sub. clause was extended to al l articles and things except those articles and thing.,mentioned in the Xlth Schedule. The heading of Xlth Schedule is again "list of articles or things", but the list does not include ships. In other words, sub clause (iii), after amendment, continues to apply to ships. Ships are among the articles or things to which the present sub-clause (iii) applies. And that in precisely the reason the word "construction" is retained in amended sub-clause (iii) the sub-clause corresponding to unamended sub-clause (ii). So far as the use of the word "thing" is concerned, it has no special significance inasmuch a the IXth Schedule and the Xlth Schedule both contain a list of articles or thing, , Both the IXth Schedule, to which alone the unamended sub- clause (ii) applies as well as the Xlth Schedule, the articles and things wherein are excluded from the purview of amended sub-clause (iii), refer only to moveable objects called articles or things. In this background, it is not possible or permissible to read the word "construction" as referring to construction of dams, bridge, , buildings, roads or canals. The association of words in former sub-clause (ii) and the present sub-clause (iii) is also no t without significance. The words are: "construction, manufacture or production of any one or more of the articles and things...... and "construction, manufacture or production of any articles and things...... respectively. It is equally evident that in these sub- clauses as well as in the IXth Schedule and Xlth Schedule, the words "articles" and "things" are used interchangeably. In the scheme and context of the provision, it would not be right to isolate the word "thing ", ascertain its meaning with reference to Law Lexicons and attach to it a meaning which it was never intended to bear. A statute cannot always be construed with the dictionary in one hand and the statute in the other. Regard must also be had to the scheme, context and as in this case to the legislative history of the provision. We are, therefore, of the opinion that sub-clause (iii) of clause (b) of sub-section (2) of Section 32-A does not comprehend within its ambit construction of a dam, a bridge, a building, a road, a canal and other similar constructions.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14.For all the above reasons, we are of the opinion that it is not possible to accede to the contention that the activity of construction of a dam can be characterised as manufacture or producing of article or articles, as the case may be, within the meaning of Section 80-HH(2)(i) of the Act.15.Another set of appeals in the first group (Civil Appeal Nos. 5865-5866 of 1983) are preferred against the j udgment of the Bombay High Court in CIT v. Pressure Piling Co. (India) Pvt. Ltd.- The respondent-assessee in these appeals is engaged in the business of laying foundations for buildings and other structures by a specialised patented meth od known as pressure piling. For the assessment years 1963-64 and 1964-65, it claimed the benefit under Section 84 of the Income Tax Act, 1961 on the ground that it is a newly established industrial undertaking within the meaning of the said provision. The ITO denied the said relief on the ground that the assessee did not satisfy the condition in Section 84(2)(iii). In other words, he was of the opinion that the assessee was not engaged in manufacture or production of articles. The assessees appeal to AAC was dismissed, whereupon he carried the matter in further appeal to the Tribunal. There, a difference of opinion arose between the Accountant Member and Judicial Member who heard the appeal. The Accountant Member was for allowing the appeal whereas the Judicial Member was for its dismissal. The matter was referred to a third member, who agreed with the Accountant Member. Thereupon the Revenue applied for and obtained reference of the following question under Section 256(1) of the Income Taxon the facts and in the circumstances of the case, the assessee- company was engaged in the manufacture or production of articles within the meaning of Section 84(1) of the Income Tax Act, 1961, for the assessment year 1963-64, and relief under Section 84(1) and Section 101 for the assessment year 1964-65? "High Court examined the process by which the assessee carried out its worked held that it can be characterised as manufacture or production of an article. Accordingly it answered the question referred in the affirmative i.e., in favour of the assessee and against the Revenue. The correctness of the said view is questioned in these appeals.17.The process adopted by the assessee for laying pressure piles has been set out in the statement of the case in the followingpiles are cast in site and piles are formed in bore holes previously excavated by suitable boring plant at each pile position. The borings are sunk to suitable bearing stratum and concrete is then introduced into the holes under applied air pressure. This, when set, forms a permanent pile giving a very high surface friction in addition to the bea ring value obtained at the foot of the pile. The method adopted of sinking pressure piles is as under: A boring is first made for each pile, the hole being bored with steel tubes. As the boring proceeds, these steel tubes are sunk in the ground, the soil being excavated through the tube itself in the manner employed by well bores. In this way the underlying soil is thoroughly explored, samples of the succeeding strata being obtained as each hole is sunk. This permits the correct depth of boring to be determined in every case. If necessary, steel reinforcements of any required design can then be lowered down the casing and fixed in a correct position so that the rods will be properly embedded when concrete is added. If the bore hole is dry, concrete is introduced to the casings and compressed air is admitted. The air pressure forces the concrete down the casing and presses it into t he interstices of the bottom part of the bored hole from which the casing is withdrawn. In this way, the actual diameter of the pile is made to exceed that of the casing itself and it also forms a rough surface that bonds into the strata penetrated by the pile. As each section of the tube is raised above ground, it is unscrewed and further batch of concrete is added. This process is continued until the pile is completed.Section 84 insofar as it is relevant for our purpose readsIncome of newly established industrial undertakings or hotels.- (1) Save as otherwise hereinafter provided, Income Tax shall not be payable by an assessee on so much of the profits or gains derived from any industrial under taking or hotel to which this section applies as do not exceed six per cent per annum on the capital employed in the undertaking or hotel, computed in the prescribed manner.(2)Th is section applies to any industrial undertaking which fulfills all the following conditions, namely:(i) it is not formed by the splitting up, or the reconstruction of, a business already in existence; (ii)it is not formed by the transfer to a new business of a building, machinery or plant previously used for any purpose; (iii)it has begun or begins to manufacture or produce articles in any part of India at any time within a period of eighteen years from the 1st day of April, 1948, or such further period as the Central Government may, by notification in the Official Gazette, specify with reference to any particular industrialwould be noticed that the language of Section 84(2)(iii), insofar as it is relevant, is identical with the relevant language in Section 80-HH. In the light of our discussion hereinbefore, can it be said that the assessee herein is engaged in manufacture or production of articles? We find it difficult to say so. According to the statement of case, the process adopted by the assessee, in short, is this: in the first instance holes are bored into earth at the site of construction with steel tubes; as the boring proceeds, these steel tubes are sunk into the ground; the soil is excavated through the tube itself; after reaching the correct depth, concrete is poured into the casings and compressed air is admitted; the air pressure forces the concrete down the casing and presses it into interstices; if necessary, steel re-enforcements are also provided to keep the rods in correct position. In this manner a strong foundation is laid. Upon that foundation further construction whether it is a building, bridge, dam or any other structure is raised. Can it be said t hat the said activity is one of manufacturing or producing articles? If the construction of a dam, a bridge or a building as a whole does not amount to manufacture or production of an article, it is difficult to see how the laying of foundation or foundations for such dam, bridge or building can be characterised as manufacturing or production of articles. The process of laying foundation is an integral part of the construction of a dam, bridge or building. Each such structure requires a foundation. The assessee does no more than lay the foundation(s) by a technologically innovative method, which lends to the strength of the foundation. It cannot be said that if a person constructs the entire dam including the foundation, he is not manufacturing or producing an article but where he merely lays the foundation for such dam he is manufacturing or producing an article. The piles, which the assessee lays by his particular method become a fixture in the earth. It ultimately becomes an integral part of the dam, bridge or building, as the case may be. It is not as if the assessee supplies prefabricated piles, which are bored into the earth by the contractor or owner, as the case may be. The work is done on the spot and it is a works-contract. It is no different from any other works contract which is done on the spot and becomes a part and parcel of a larger construction.In such matters one has to look to the precise activity and decide whether it can be said to amount to manufacturing or producing an article. For the above reasons and those given hereinbefore in Budharaja, these appeals are also liable to succeed.20.We may now take up the second group of appeals comprising Civil Appeal Nos. 4239-4248 of 1992. These appeals are preferred by the Commissioner of Income Tax against the decision of the Karnataka High Court in CIT v. Shankar Construction Co.6 Shankar Construction Company is the respondent-assessee in all these appeals. For the relevant assessment years, the respondent claimed deduction on account of investment allowance in terms of Section 32-A. Sub-section (1) of Section 32-A provides inter alia that in respect of machinery or plant specified in sub-section (2), owned by the assessee and wholly used for the purposes of the business carried on by him, he shall be allowed a deduction in respect of the previous year in which the machinery or plant was installed a sum equal t o 25 per cent of the actual cost of the machinery or plant by way of investment allowance. Sub-section (1) provides for such an allowance even in the case of a ship or aircraft. Sub- section (2) specifies the ship or aircraft or machinery or plant referred to in sub-section (1). Having regard to its relevance, sub-section (2) may be set out hereinbelow submitting the portions not necessary to be noticed for the purpose of these(2) The ship or aircraft o r machinery or plant referred to in sub-section (1) shall be the following, namely:(a) a new ship or new aircraft acquired after the 31 st day of March, 1976, by an as sessee engaged in the business of operation of ships or aircraft; (b) any new machinery or plant installed after the 31st day of March, 1976, - (i) for the purposes of business of generation or distribution of electricity or any other form of power; or (ii)in a small-scale industrial undertaking for the purposes of business of manufacture or production of any article or thing; or (iii)in any other industrial undertaking for the purposes of business of construction, manufacture or production of any article or thing, not being an article or thing specified in the list in the Eleventh Schedule:"The claimfor the said allowance was disallowed by the Assessing officer. On appeal, the CIT appeals accepted the assessees claim against which the department went up in appeal to the Tribunal. The Tribunal allowed the Revenues appeal following the decision in I.T.A. No. 715/Bang/1982 (pertaining to Shankaranarayana Construction Company). The assessee thereupon applied for and obtained a reference under Section 256 of the Income Tax Act. The question referred for the opinion of the High Court reads thus: "Whether on the facts and in the circumstances of the case, the Tribunal is justified in law in upholding the disallowance of investment allowance?" With a view to pinpoint the controversy, the High Court reframed the question in the followingon the facts and in the circumstances of the case, the allowance provided for under sub-clause (iii) of clause (b) of sub-section (2) of Section 32-A of the Act will enure to the benefit of the assesses?"is a registered firm, carrying on business in the manufacture and sale of tiles and in construction work on a large scale. It has specialised in the construction of dams and canals. The question before us is whether the assessee is entitled to investment allowance on the actual cost of the machinery and plant installed for the purpose of its business pertaining to construction of dams and canals. In other words , the question is whether such machinery or plant can be said to have been installed "for the purposes of business of construction, manufacture or production of any article or thing" and further whether the assessee or the work undertaken by it ca n be called an "industrial undertaking" within the meaning of sub-clause (iii) of clause (b) of sub-section (2). The sub-clause specifies three requirements which must have been satisfied viz., (1) The new machinery or plant must be installed in an industrial undertaking after the 31 st day of March 1976. (2) The machinery on plant must have been installed for the purposes of business of construction manufacture or production of an article or thing; and (3) the article or thing should not be one of those specified in the Eleventh Schedule to the Act.23.There is no dispute about the third requirement. The controversy is only about the first and second requirements. Even here, the learned counsel for Revenue, Shri Murti concentrated only upon the second requirement. He did no address any arguments with respect to the first, for which reason we do no propose to express any opinion thereon. We shall confine ourselves to the question whether the new machinery or plant installed by the assessee for the purpose of construction of a dam or irrigation canals is entitled to investment allowance. It would be noticed immediately that sub-clause (iii) of clause (b) on sub-section (2) of Section 32-A employs certain words which are not found in Section 80-HH(2)(i) or in Section 84(2)(ii). The relevant words in those two sections are "manufacture or produce articles" whereas the relevant words in Section 32-A are "construction, manufacture or production of any article of thing". Because the sub-clause in Section 32-A employs the additional words "construction" and "thing", it is argued for the assessee that the scope of the sub-clause is wider than the relevant sub-clauses in Section 80-HH and Section 84. It is submitted that the sub-clause concerned in these appeals speak expressly of the construction of a thing. The expression "thing", it is argued, wider than the expression "article" and takes in immovable properties like dams, bridges, roads and canals. If it is not so construed, it is argued, the words "construction" and "thing" in this sub- clause would be rendered super flour Learned counsel brought to our notice the meanings given to the said word various dictionaries , namely from the Lexicon Webster Dictionary, The Conci, Oxford Dictionary of Current English, Blacks Law Dictionary and Strouds Judicial Dictionary. So far as the first two dictionaries are concerned, the said word does not take in immovable property like buildings etc. within its ambit.However, in Blacks Law Dictionary, the following meanings are assigned to the expressionThe objects of dominion or property as contra-distinguished from persons. Gayer v. Whelan10. The object of a right; i.e., whatever is treated by the law as the object over which one person exercises a right, and with reference to which another person lies under a duty.Such permanent objects, not being persons, as are sensible, or perceptible through the senses. Things are distributed into three kinds: (1) Things real or immovable, comprehending lands, tenements, and here determents; (2) things personal or moveable, comprehending goods and chattels; and (3) things mixed, partaking of the characteristics of the two former, as a title- deed, a term for years. The civil law divided things into corporeal (tangi possunt) and incorporeal (tangi non possunt)."