TMI Blog2009 (8) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI - 27004 - DELHI High Court)] - Decided in favour of the Revenue and against the assessee. - ITR NO 187/96 - - - Dated:- 7-8-2009 - ADARSH KUMAR GOEL, DAYA CHAUDHARY MRS., JJ. Judgment: Adarsh Kumar Goel J.- 1. This reference has arisen from the order of the Income-tax Appellate Tribunal, Chandigarh Bench, Chandigarh, dated March 9, 1995, in I. T. A. No. 411 of 1990 relating to assessment year 1985- 86. The question referred is as under : "Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in holding that the assessee be treated as an industrial company and that the tax be charged at low rate applicable to an industrial company ?" 2. The assessee-comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on its earlier order for the assessment year 1984-85. Similarly, the order of the Tribunal was also based on the order for the earlier year from which a reference was made to this court and was answered against the Revenue being I. T. R. No. 287 of 1995 (CIT v. Bhagyoday Investment Pvt. Ltd.) decided on May 21, 2008. 4. Learned counsel for the Revenue points out that the earlier decision of this court is based on an erroneous concession made by him with regard to the matter being covered by the judgment of the Delhi High Court in CIT v. Bharat Ram Charat Ram P. Ltd. [1986] 157 ITR 199 (Delhi), as he was not having record with him and he stands by the statement made by the Departmental representative before the Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 6 SCC 559, para 7, Union of India v. Mohanlal Likumal Punjabi [2004] 3 SCC 628, paras 8, 9). 7. A perusal of the above definition shows that to qualify as an industrial company, the assessee itself must be engaged in the nature of business specified in the definition, i.e., generation or distribution of electricity or carriage of passengers or goods or construction of ships or in mining. It has nowhere been stated that the assessee is engaged in any such type of activity. The statement made before the Commissioner of Income-tax (Appeals) as noted in para. 3.1 was not factually disputed by the assessee. The same is extracted below : "I have no objection to the entertainment of the additional ground of appeal in case the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to the judgment of the Delhi High Court relied upon on behalf of the assessee. In that case, a finding was recorded that the assessee was a partner with a manufacturing company and on that ground, it was an industrial company. The relevant observations are as under (page 203 of 157 ITR) : "The Tribunal in the course of its decision stated that this question was common for the assessment years 1967-68 and 1970-71 and had depended on whether income derived by the assessee from a partnership with M/s. Electrical Industries Corporation was to be used as a qualification. We have examined the definition and find that a company is deemed to be an 'industrial company' if its income from manufacture is more than 50 per cent. As the findin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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