TMI Blog2015 (6) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... URT ] - Decided against assessee. - ITA Nos. 937, 938 & 939/Kol/2011 - - - Dated:- 8-5-2015 - Rajpal Yadav, JM And B P Jain, AM,JJ. For the Appellant : Shri K K Khemka, FCA, ld.AR For the Respondent : Shri Dilip Kr Mitra, ld. JCIT/Sr.DR ORDER Per: Rajpal Yadav,JM. The present three appeals are directed at the instance of assessee against the common order of Ld. CIT(A) dated 21-01-2011 passed for assessment years 2002-03, '03- 04 and '04-05 respectively. 2. The common issue involved in these appeals relates to confirmation of disallowance u/s. 35D of the I.T Act 1961. 3. The facts on all vital issue are common. Therefore, for the facility of reference, we take the facts from assessment year 2002-03. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the Act. Therefore, it is to be construed in common parlance. The construction of industry development council [CIDC] has construed the construction activity equivalent to industrial undertaking. He drew our attention to pages 42-43 of the paper book. He further relied upon the order of the Special Bench of the Tribunal [ITAT, Delhi Bench ]in the case of ITO Vs. Hydle Construction (P) Ltd reported in 41 CTR (Trib) 17 (Del). According to the ld. Counsel for the assessee, the judgment of Hon'ble Supreme Court in the case of CIT Vs. N.C. Budharaja Co. Anr reported in (1993) 204 ITR 412 (SC) relied upon by the ld.AO and the judgment of the Hon'ble Delhi High Court in the case of Ansal Housing Construction Ltd Vs. CIT in Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al unit. The ld. revenue authorities have concluded unanimously that the assessee is not engaged in manufacturing or production anything. Therefore, it is not an industrial undertaking. For buttressing the contention that construction of road would not amount to manufacture or production of an article or a thing. They made reference to the judgment of the Hon'ble Supreme Court in the case of M/s. N.C Budharaja Co. (supra). The assessee made reference towards the activity carried on by it, but failed to demonstrate as to how laying down of railway track would constitute manufacturing of an article or production of an article or a thing in the light of the decision of the Hon'ble Supreme Court in the case of N.C Budharaja Co. (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the assessee/respondent or the work undertaken by it constitutes an industrial undertaking. From the above extract of the Supreme Court's order it is clear that the Hon'ble Court did not give any finding as to whether the work of civil construction constituted an industrial undertaking or not. I find a direct judicial authority on the issue in the order of Hon'ble Delhi High Court in the case of Ansal Housing and Construction Ltd vs. CIT [Appeals No. 1261,1278, 1287 and 1402 of 2008] where the Hon'ble Court held that those undertakings would qualify as industrial undertakings' which are involved in 'manufacturing activity', the activity of construction can, by no stretch of imagination, be treated as m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are involved in manufacturing activity. 19. The activity of construction can, by no stretch of imagination, be treated as manufacturing activity as it does not amount to manufacture or production of an article or a thing. Law in this behalf stands settled by the judgment of the Supreme Court in the case of Commissioner of Income Tax, Orissa ors v. M/s. N.C. Budharaja Company Ors, 204 ITR 412. Following this judgment, the Supreme Court in S.A Builders Ltd v. Commissioner of income Tax (Appeals), Chandigarh Anr., 289 ITR 26, held that the business of civil construction would not amount to carrying on any manufacturing activity. Even this Court in Ansal Housing Estates (P) Ltd. V. Commissioner of Income Tax, 1999(77) DLT 76 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
