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TMI Blog1980 (4) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, among other things, of undertaking , building, constructing, erecting, planting, executing, carrying out, improving, repairing, enlarging, etc., of factories. We are concerned in this reference with the assessment year 1966-67, and during the year under consideration, it had constructed factories for various large concerns. Admittedly, further, the company declared dividends to the extent of 64% of its net distributable income. It was the case of the company before the ITO that it was entitled to exemption from the levy of super-tax as provided under s. 104 of the Act since it was an industrial company and had distributed more than 45% of its total profits and gains as dividends within the 12 months immediately following the expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . " Whether, on the facts and in the circumstances of the case, it has been rightly held that the assessee was an industrial company ' within the meaning of the said expression as defined in s. 2(7)(d) of Chapter II of the Finance Act, 1966 ? " That is how the said question has been referred to this court, as stated earlier, by the Tribunal under s. 256(1) of the Act. There is no dispute on the facts as found by the Tribunal that the only business that the assessee-company carries on is that of construction and repair of buildings and that it is in the process of and for the purpose of the said construction and repair of buildings that it manufactures window and door frames and concrete beams and slabs. It is also not in dispute that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all other construction companies. It should, therefore, be obvious to anyone that the Legislature has clearly indicated that it does not want to include in the said definition a company which is engaged mainly or otherwise in the construction of anything other than ships. Prima facie, therefore, a company such as the assessee, whose business is to construct and/or repair buildings and factories will not be covered by the said definition. We should have, therefore, thought that the said definition being clear and unambiguous, there was no difficulty in holding that the assessee-company did not fall within the said definition. However, as has been pointed out earlier, the Tribunal has ignored the manifest implications of the said definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no doubt that in the aforesaid decision the Orissa High Court has in terms made observations to the above effect. However, it must be remembered that the Orissa High Court in that case was called upon to interpret the expression "industrial undertaking " in s. 80HH of the Act. The court found that there was no statutory definition given of the said expression anywhere in the Act and, therefore, it had to fall back upon the general definition of an industrial undertaking. For that purpose, the court, firstly, referred to the definition given in the Shorter Oxford English Dictionary and then to the definition of the said expression given in the Industrial Disputes Act, 1947. It is by reference to the definitions given in the said dictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the expression in common parlance or its definition in the sister legislations. As has been pointed out earlier, the expression " industrial company " that we are called upon to construe is the expression which has been defined in s. 2(7)(d) of Chap. II of the Finance Act, 1966. In view of the said definition, it is not open to the court to refer either to the general definition or to the definition given in the other provisions of the same statute or in other statutes. As has been stated earlier, in view of the clear and unambiguous definition of the said expression, it is beyond doubt that the assessee-company which does the business of construction and repair of buildings would not be covered by the said definition. Shri Khatri then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed by the contention advanced by Shri Khatri that taking into consideration the said extended meaning given in the said circular the assessee-company would fall within the definition of an industrial company. It is for this reason that we are not inclined to remand the matter to the Tribunal, as was urged by Shri Khatri, to find out the separate incomes of the assessee-company from the said so-called two sources or activities. In the result, we are of the view that the Tribunal has clearly erred in law in holding that the assessee-company fell within the definition of " industrial company " as given in s. 2(7)(d) of Chap. II of the Finance Act, 1966. We, therefore, answer the question referred to us in the negative and against the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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