COMMISSIONER OF INCOME TAX Vs. ASIAN TECHS LIMITED

JUDGEMENT

(1.) THIS original petition has been filed by the Commissioner of Income-tax, Cochin, under Section 256(2) of the Income-tax Act, 1961, seeking reference of the following questions of law, as arising out of the appellate order dated June 4, 1993 (vide annexure "C", of the Income-tax Appellate Tribunal, Cochin Bench :

(2.) THE assessee is a company doing business in engineering contracts. In the assessment for the year 1983-84, the assessee claimed deduction under Sections 80HH, 80-I and 80J of the Income-tax Act, 1961. THE claim was made on the basis that the assessee for the purpose of executing the work of construction of a tunneling system and a school building had manufactured or produced articles or things which are used in the execution of such work and that this amounted to manufacture and construction for the purpose of the claim made under the aforesaid three sections. THE assessing authority rejected the said claim on the basis of the decision taken for the earlier assessment years to the effect that the assessee is not an industrial undertaking. In appeal, the Commissioner of Income-tax (Appeals) confirmed the said finding of the assessing authority. THE matter was taken in appeal before the Income-tax Appellate Tribunal, Cochin Bench. THE Appellate Tribunal relied on the decision of a five member Bench of the Tribunal reported in R.M. Enterprises v. First ITO [1993] 199 ITR (AT) 40 (Bom), where the Tribunal had dealt with the question as follows (headnote) :

(3.) IT is submitted by counsel on either side that there is no authoritative pronouncement on this question either by this court or by the Supreme Court. Learned senior counsel appearing for the Department contended that this is a very important question arising for consideration in various cases on which pronouncement by this court is absolutely necessary.