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

Two groups of appeals are placed before us for hearing. The first group involves the interpretation of identical words occurring in Section 80-HH and Section 84 viz., "manufacture or produce articles"whereas the second group is concerned with the words "construction, manufacture or production of any article or thing" in Section 32-A of the Income Tax Act. Civil Appeal Nos. 4238-4240 of 1983 can be said to be representative of the first group whereas the second group of appeals comprise Civil Appeal Nos. 4239 to 4248 of 1992.2.The first group of appeals is directed against the Judgment of a Division Bench of Orissa High Court answering the question referred to it under Section 256(2) in favour of the assessee. The question referred is to the following effect: "Whether on the facts found by the Appellate Tribunal, the assessee is entitled to the benefit provided under Section 80-HH of the Income Tax Act, 1961?" The assessment years concerned are 1974-75 and 1975-76. The respondent assessee is a firm of contractors constituted for the purpose of construction of a dam in Orissa. It was constituted under a partnership deed dated January 14, 1972.It was given the contract of constructing a dam in Dhenkanal District which is a notified backward district for the purpose of Section 80-HH. In proceedings for assessment of its income for the relevant years, the respondent claimed the relief under the said provision. The Income Tax Officer allowed the same. The Commissioner of Income Tax however revised the order of the ITO to the extent of grant of relief under Section 80-HH. He was of the opinion that the assessee, engaged in construction of a dam cannot be said to be engaged in manufacture or production of an article inasmuch as "a dam is constructed and not manufactured. It would be absurd to say that the assessee is manufacturing dam or the dam is capable of being sold. In short, the firm cannot be held as an industrial undertaking merely because it has to undertake certain manufacturing process in the course of construction of the irrigation project". He also referred to the fact that the assessee-firm was constituted only for the purpose of constructing a particular dam, on the completion of which work the firm would cease to exist automatically. The assessee preferred an appeal before the Income Tax Appellate Tribunal which was allowed on the following reasoning andThe activity of constructing a dam can be characterised as an industrial activity. The work undertaken by the assessee-firm can, therefore, be called an "industrial undertaking".(b) The word "articles" occurring in clause (i) of sub-section (2) of Section 80-HH is not confined to moveables nor to small things produced in large quantities.(c) The activity of construction of a dam can be characterised as processing as well asthe instance of the Revenue the aforesaid question was referred for the opinion of the High Court. The High Court agreed with the Tribunal that the assessee-firm constituted for the purpose of constructing a dam for storing water can be called an "industrial undertaking". The High Court opined that the definition of "industry" in the Industrial Disputes Act can well be relied upon to ascertain the meaning of the expression "industrial undertaking", inasmuch as the said expression has not been defined in the Act or the Rules. The High Court also agreed with the Tribunal that the word "article" need not be confined to mere moveables and that "there would be no justification to hold that a dam is not an article in that sense of the term". The correctness of the said view is questioned in these appeals.4. The learned counsel for the Revenue, Shri J. Ramamurti attacked mainly the opinion of the High Court with respect to the meaning attached by it to the word "article". He submitted that the activity of constructing a dam cannot and does not fall within the words "manufacture or produce articles" in Section 80HH(2)(i). He relied upon the decisions in CIT v. N. U. C. Pvt. Ltd.; CIT v. Shah Construction Co. Ltd.2; Chowgule &Co. Pvt. Ltd. v. Union of India3 and Delhi Cold Storage Pvt. Ltd. v. CIT4 in support of his submission. He submitted that the contrary view, taken in some of the decisions of the High Courts, does not represent the correct view. On the other hand, Shri B.B. Ahuja and Shri B. Sen, learned counsel appearing for the respondent-assessee supported the reasoning and conclusion of the High Court and the Tribunal. They relied upon and commended for our acceptance the reasoning in the order under appeal as well as the reasoning in CIT v.Pressure Piling Co. (India) Pvt. Ltd.5; Shankar Construction Co. v. CIT6 and in CIT v. Tiecicon Pvt. Ltd.75. Section 80-HH occurs in Chapter VI-A, which provides for "deductions to b e made in computing the total income". Sub- section (1) of Section 80-HH provides that "Where the gross total income of an assessee includes any profits and gains derived from an industrial undertaking, or the business of a hotel, to which this sect ion applies, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains of an amount equal to twenty per cent thereof ". Sub-section (2) says that Section 80-HH applies to any industrial undertaking which fulfills all the four conditions prescribed therein. It would be appropriate to set out sub- section (2) in its(2) Th is section applies to any industrial undertaking which fulfills all the following conditions, namely:(i)it has begun or begins to manufacture or produce articles after the 31 st day of December, 1970 (but before the 1st day of April, 1990), in any backward area; (ii)it is not formed by the splitting up, or the reconstruction, of a business already in existence in any backward area:Provided that this condition shall not apply in respect of any industrial undertaking which is formed as a result of the reestablishment, reconstruction or revival by the assessee of the business of any such industrial undertaking as is referred to in Section 33-B, in the circumstances and within the period specified in that section;(iii)it is not formed by the transfer to a new business of machinery or plant previously used for any purpose in any backward area; (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.Explanation.- Where any machinery or plant or any part thereof previously used for any purpose in any backward area is transferred to a new business in that area or in any other backward area and the total value of the machinery or plant or part so transferred does not exceed twenty per cent of the total value of the machinery or plant used in the business, then, for the purposes of clause (iii) of this sub-section, the condition specified therein shall be deemed to have been(4) provides that the deduction specified in sub-section (1) shall be allowed for a period of ten years beginning with the assessment year relevant to the previous year in which the industrial undertaking "begins to manufacture or produce articles". Sub-section (1) thus confers a substantial benefit. It provides for deduction for a period of ten years of an amount equal to 20 per cent from the profits and gains of an industrial undertaking which fulfills all the four conditions specified in sub- section (2). All the four conditions must be satisfied simultaneously. We are, however, concerned in these appeals with the first of the four conditions. It says that the industrial undertaking must have begun or begins to manufacture or produce articles after the 31 st day of December 1970 in any backward area. (By the Finance Act, 1990, the words "but before the 1st day of April, 1990" were inserted in the said clause, thus limiting the operation of the section till that date only.)7.Both the Tribunal and the High Court have held that the work undertaken by the assessee, or to put it differently, the assessee, which has undertaken the work of construction of a dam, can be characterised as an industrial undertaking.The counsel for the Revenue has not addressed any arguments on this aspect. We shall, therefore, express no opinion on the question whether the assessee/respondent or the work undertaken by it constitutes an industrial undertaking. We shall proceed on the assumption for the purpose of these cases that it does. The only question, therefore, is whether the assessee, has begun to manufacture or produce articles after the specified date in an area notified as a backward area. It is not in dispute that the assessee commenced its work after 31 stday of December 1970 and that the work carried on by it is in a notified backward area.

Reasoning:
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)."