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TMI Blog1985 (8) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... investment allowance to the extent of Rs. 5,92,974. The ITO had allowed the assessee's claim. 3. The Commissioner was of opinion that the grant of allowance or investment allowance was erroneous and prejudicial to the revenue. He pointed out that the machinery installed in the business of exhibition of films do not answer to any of the types of business mentioned in section 32A. He directed the ITO to modify his order and withdraw the investment allowance erroneously granted. 4. The assessee is in appeal before us. Shri Sreerama Rao, the learned counsel for the assessee, submitted that the ITO had correctly allowed investment allowance. He submitted that the exhibition of films in a theatre will be covered by sub-clause (iii) of clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary that the thing must be palpable or recognised by any of the senses. A thing may be something which lies in the imagination of a person. For this purpose, he referred to the dictionary meaning of 'thing'. According to Shri Sreerama Rao, it is not necessary to go to that extent, because the picture projected on the screen is appreciated by eyesight and, therefore, it is a 'thing'. He then referred to the expression 'industry'. According to him, this expression must be given a very wide meaning in view of the Supreme Court's decision in the case of Bangalore Water Supply Sewerage Board v. A. Rajappa AIR 1978 SC 548. If such a wide expression is given, theatres also would be industrial undertakings. He then referred to the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustrial undertaking, (2) it should be in the business of construction, manufacture or production of any article or thing, and (3) these articles or things should not be specified in the Eleventh Schedule. 8. The first question would be whether the assessee is an industrial undertaking, for the purpose of section 32A. Shri Sreerama Rao had tried to make out a case by conjugating 'industry' and 'undertaking' separately by referring to the dictionary meanings and meanings assigned to these expressions in other statutes. In our opinion, the expression 'industrial undertaking' should not be split up in this way. It is one expression and it conveys a definite meaning. With regard to Shri Sreerama Rao's reference to the Factories Act, it may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s used in the Act must take their colour from the context in which they appear. The industrial undertaking must be in a business of construction, manufacture or production of any article or thing. Therefore, an industrial undertaking has to satisfy a test that it manufactures or produces something. If it does not, it is not an industrial undertaking. 10. This will take us to the question whether the picture projected on the screen is a 'thing'. Shri Sreerama Rao had laboured hard to give various dictionary meanings of the expression 'thing'. But, before we go into the meaning of the expression 'thing' in isolation, we should understand the implication of the entire clause. For this purpose, we may have to refer to the history of section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trasted with section 80J. Section 80J made no reference to any items in any Schedule. Therefore, it was unnecessary to use the expression 'thing' therein. The expression 'article' standing alone and not confined to any items in any Schedule, was sufficient to take care of all the items an industrial undertaking could produce. That is why the Legislature thought it unnecessary to use the expression 'thing' in section 80J. 11. After the amendment of section 32A in 1978, reference to the Ninth Schedule was removed and substituted by a reference to the Eleventh Schedule. By this it is certainly not possible to say that the meaning of the word 'thing' got expanded. The expression 'thing' has the same meaning as it had earlier, i.e., a referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpretation is uncalled for. 13. It would, therefore, appear to us that an article or thing must be something which is tangible or corporeal. It cannot be referred to something which is illusory. 14. Assuming that the above analysis is wrong, even then, the assessee cannot succeed. As we have pointed out, the assessee must manufacture or produce something. The assessee, it is admitted, is not manufacturing anything. Then the assessee must produce something. The meaning of the expression 'produce' is more or less akin to the meaning of the expression 'manufacture'. The Supreme Court in the case of Dy. CAIT v. Palampadam Plantations Ltd. AIR 1969 SC 930, had quoted with approval the meaning of the expression in Shorter Oxford English Di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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