BUILDERS ASSOCIATIONS OF INDIA Vs. UNION OF INDIA

JUDGEMENT

(1.) Though we are dismissing this writ petition preferred under Art. 32 of the Constitution of India at the stage of admission itself, we deem it appropriate to record our reasons therefor in view of the contentions urged by Shri N. A. Palkhivala, learned senior advocate for the petitioner.

(2.) In Commissioner of Income-tax v. N. C. Budharaja and Co., (1993) 204 ITR 412 , a Bench of this Court comprising one of us (B. P. Jeevan Reddy. J.) and N. Venkatachala, J. held inter alia that the words "construction, manufacture or production of any article or thing not being an article or thing specified in the list in the Eleventh Schedule" occurring in sub-cl. (iii) of clause (b) of sub-sec. (2) of S. 32-A of the Income-tax Act, 1961 do not take in construction of a dam, a building, a bridge, a road and the like, The reason given was that a dam, a building, a bridge or road cannot be brought within the purview of' the words "article or thing". After referring to the legislative history of the said clause it was held that the words "any article or thing" refer to only movables and that the use of the word "construction" in the said clause is referable to construction of ships. It was held that the words "construction, manufacture or production of any article or thing" cannot be extended to construction of immovable properties like the construction of a dam, building, bridge, a road and the like. It was observed that doing so would do violence to the plain meaning of the words ."article or thing" occurring in the said sub-clause.

(3.) In this writ petition, Sri Palkhivala contends that inasmuch as three important circumstances were not brought to the notice of this Court by the counsel appearing for the assessees in Budharaja and Co. (1993 Tax LR 1117) and were, therefore, not considered by this Court, the decision in so far as it relates to Sec. 32-A(2)(b)(iii) requires reconsideration and must be referred to a larger Bench. Had the said three circumstances been brought to the notice of this Court, says Sri Palkhivala, the decision would certainly have been different. The three circumstances mentioned by the learned counsel are the following: