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2004 (3) TMI 40

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..... entire earth excavation work which is to be done by the assessee is required to be done as prescribed under the mining rules/regulations and is to be carried out under the instructions issued from time to time by the mines manager/engineer-in-charge of the GMDC – Thus, assessee has satisfactorily discharged the burden of showing that it is a company which is mainly engaged in mining and, therefore, an 'industrial company' as defined by section 2(7)(c) and hence entitled to the benefit claimed
Judge(s) : M. S. SHAH., A. M. KAPADIA. JUDGMENT The judgment of the court was delivered by M. S. SHAH J. -In this reference under section 256(2) of the Income-tax Act, 1961 ("the Act", for short), at the instance of the Revenue, the following qu .....

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..... 1982, provides the rates of income-tax. The relevant portion reads as under: "Rates of income-tax: I. In the case of a domestic company, - (1) where the company is a company in which the public are substantially interested,- ... (2) where the company is not a company in which the public are substantially interested,- (i) in the case of an industrial company,-" "Industrial company" is defined in section 2(7)(c) as under: " 'industrial company' means a company which is mainly engaged in the business of generation or distribution of electricity or any other form of power or in the construction of ships or in the manufacture or processing of goods or in mining. Explanation.-For the purposes of this clause, a company shall be deemed to b .....

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..... Revenue, has submitted that the assessee is not even engaged in mining. All that the assessee does is the removal of overburden and earth excavation. The assessee does not go beyond the earth excavation, because when the lignite is exposed it is the GMDC which does the mining and therefore the activity which the assessee does is merely preparatory work for "mining" properly so called. On the other hand, Mr. R. K. Patel, learned counsel for the respondent-assessee, has submitted that what the assessee is doing is not merely removal of overburden or scratching the surface as contended, but the assessee has to excavate the earth layer of 8 to 30 metres so as to expose the lignite mineral for further mining. Learned counsel has placed emphasi .....

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