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TMI Blog2012 (12) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... al preferred by the assessee? (2) In order to answer the questions referred, few relevant facts from the statement of case by the Tribunal to this Court need mention infra. (3) The assessee is a Pvt. Limited Company registered as such under the Companies Act. The assessee is the builder and undertakes various kinds of civil construction, and special kind of civil engineering structural works on contract basis in their day to day business activities. (4) The assessee was awarded one civil engineering special type of works contract during the assessment years in question (1981-82 and 82- 83) by the Bhilai Steel Plant (for short hereinafter called -"BSP") -a Government of India undertaking having one of the largest steel manufacturing plant in the country at Bhilai in District Durg. The works contract was essentially for erection, or/and modernization of Plate Mill designed with specifications supplied by BSP as per their requirement to the assessee. To execute this specialized type of job, the assessee was required amongst other things to erect heavy concrete foundation/pillars/ slabs/columns and than lay each of these specially erected structures in earth in their proper position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to make reinforced concrete and such slabs are used in the main construction work, it is certainly processing of goods. The departmental representatives has, however, accepted that in a normal construction work of this type, manufacturing or processing of goods has invariably to be undertaken. It is, therefore, clear that the assessee company is engaged in the manufacture or processing of goods." (6) The assessee completed the aforesaid works contract. They were then subjected to regular assessment proceedings which ended by determining their taxing liability for the years under consideration. (7) The Assessing Officer (A.O.) then took recourse to the provisions of Section 104 of the Act (since repealed) and invoking its provisions issued a show cause notice to the assessee proposing therein to impose the additional tax which according to him was also found payable by the assessee in terms of Section 104 of the Act on their annual income which they had earned during the two assessment years in question. In his opinion, since the assessee was engaged in construction activities which did not involve any manufacturing or processing activity for production of goods/articles and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d because they had earned certain percentage of profits which enabled them to come out of rigour of Section 104 ibid. However, the Tribunal did not allow the assessee to raise this additional point observing that since it was never raised by the assessee at any stage either before A.O. or CIT (Appeals) but was raised for the first time before the Tribunal and hence it was not allowed to be raised by the Tribunal. It was held that in the absence of any factual foundation laid either before A.O. or CIT (Appeals) by the assessee and simply raising the point in arguments in support of their appeal cannot be permitted. It is against these findings, the assessee felt aggrieved and prayed for making the reference to this Court under Section 256 (1) ibid to the Tribunal on the two questions proposed. The prayer made by the assessee was allowed and accordingly reference was made to this Court to answer aforementioned two questions. (11) Having heard the learned counsel for the parties and on perusal of the statement of case accompanied by its annexures, we are inclined to decide the reference by answering the aforesaid two questions against the Assessee and in favour of the Revenue. (12) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, every production need not amount to manufacture. The word "production" or "produce" when used in juxtaposition with the word `manufacture' takes in bringing into existence new goods by a process which may or may not amount to manufacture. It also takes in all the by-products, intermediate products and residual products which emerge in the course of manufacture of goods. The word 'articles' is not defined in the Act or the Rules. It must, therefore, be understood in its normal connotation-the sense in which it is understood in commercial world. It is equally well to keep in mind the context since a word takes its colour from the context. The word "articles" is preceded by words "it has begun or begins to manufacture or produce". It is difficult to say that the word "articles" in clause (i) of Section 80-HH(2) comprehends and takes within its ambit a dam, a bridge, a building, a road, a canal and so on. To say that all of them fall within the meaning of word `articles' is to over-strain the language beyond its normal and ordinary meaning. It is equally difficult to say that the process of constructing a dam is a process of manufacture or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd processing activity and hence was not eligible to claim the status of an industrial company and in consequence was not eligible to claim the benefits earmarked for industrial companies under the Act. (17) Learned counsel for the assessee then contended that since in the assessment proceedings of the years in question, the taxing authorities had already given the benefit to the assessee by treating them to be an Industrial Company and hence such finding was binding on the authorities while deciding the issue arising in Section 104 proceedings. In other words, the submission was that since the authorities had extended the benefit to the assessee earmarked for industrial company in assessment proceedings for these very assessment years and hence as a necessary corollary, the same should have been extended to the assessee while considering their case under Section 104 ibid also. We do not agree to this submission for more than one reason. (18) First, this was not the question referred to this Court to answer. In other words, so long as any specific question is not referred, this Court in its limited reference jurisdiction cannot answer such issues. Second, even if we can go into s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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