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TMI Blog1997 (9) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... was right in holding that the assessee is not engaged in the activity of manufacturing of any intermediary products ? 4. Whether the finding of the Tribunal that the assessee is not engaged in the manufacturing of any intermediary products is based on evidence ? 5. Whether the Tribunal was right in holding that the equipment purchased and installed during the asst. yr. 1985-86 has not been utilised for any activity of manufacturing any article or thing ? 6. Whether the finding of the Tribunal that the equipment purchased and installed during the assessment year has not been utilised for any activity of manufacturing any article or thing is based on evidence ? 7. Whether the finding of the Tribunal that the assessee is not engaged in the manufacture or processing of any intermediary products is arrived at by ignoring the relevant material on record and by relying upon extraneous of s. 32A of the Act ? 8. Whether the Tribunal is right in holding that the assessee's case is covered by the decision of the Supreme Court in CIT vs. N.C. Budharaja and Co. (1993) 114 CTR (SC) 420 : (1993) 204 ITR 412 (SC) : TC 28R.233 and as such the assessee is not entitled to investment allowan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suitable grades. Having formed an opinion that the assessee was not engaged in the manufacture of any intermediary products and the equipment was not utilised for any activity of manufacturing any article or thing, the Tribunal held that the assessee was not entitled to deduction under s. 32A of the Act. The Tribunal allowed the appeal preferred by the Revenue and disallowed the above said deduction. The assessee moved an application under s. 256(1) of the Act seeking reference to the High Court on the abovesaid questions which has been rejected by the Tribunal forming an opinion that no question of law warranting a reference to the High Court arose from the findings of fact recorded by the Tribunal. 4. Learned counsel for the petitioner -assessee has submitted that determination of the nature of activity carried on by the assessee-whether it was a manufacturing activity or not, required interpretation of the contract entered into by it with the DDA and interpretation of a document is a question of law. Reliance was also placed on a Division Bench decision of the Delhi High Court in CIT vs. Univmine (P) Ltd. (1993) 109 CTR (Del) 75 : (1993) 202 ITR 825 (Del) wherein it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncrete on testing falls below the mark, no payment is to be made to the assessee or remedial measures are to be carried out at the cost of the assessee." Learned counsel for the Revenue has also invited attention of the Court to extracts from the contract entered into between the assessee and the DDA (at page 46 of the paper book). It is titled as a contract for "civil engineering works in cold rolling mills of Bokaro Steel Plant". The scope of work is stated as under: The scope of contract under this work shall cover all civil engineering works (ss. I to VII as per the enclosed schedule of quantities) in respect of following units : (a) Tandem mill complex (b) Pickling line (c) H.R. Coil conveyer. It was further submitted by learned counsel for the Revenue that whatever was extracted by the assessee even by mining operations, was utilised by him in finishing the civil engineering works which the assessee was carrying on and the completed work was handed over to the principals; it is not a case where the products of the mining work were the end-products of the assessee's activities. It was submitted that s. 32A was not at all attracted to the case of the assessee. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocessor in respect of those activities. Their Lordships have during the course of judgment referred to a decision of the Bombay High Court in CIT vs. NUC Pvt. Ltd. (1980) 126 ITR 377 (Bom) : TC 24R.202 where "industrial company" was interpreted to mean that it covers only construction of ships and not construction of anything else. It was also held that the making of doors and window frames, concrete beams and slabs was a step in the construction of a building. The business could not be divided into two parts (a) making of windows and doors and (b) construction. It was accordingly held that the assessee fell outside the definition of "industrial company". It may be noted that in the course of arguments in that case, it had been argued that the percentage of profit from making windows, doors and slabs was greater than the income from the other business of construction. This contention was negatived. The Court held : "Apart from the fact that there is nothing on record to show separately the income derived by the assessee from its so-called different activities, one of constructing buildings and the other of manufacturing frames and beams, we have already held that the assessee- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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