COMMISSIONER OF INCOME TAX vs NATIONAL ASPHALT PRODUCTS and CONSTRUCTION CO.

T. D. SUGLA, J. :

Mr. Dastur, the learned counsel for the assessee, points out that in its impugned order dt. 26th February, 1988 the Tribunal while rejecting the Departments application for reference had relied on its earlier order in the assessees own case for the asst. yr. 1981-82. In its order for the year the Tribunal had referred to the opinion dt. 16th February, 1984 given by the Ministry of Law, Department of Legal Affairs, on reference made by the CBDT. According to him, no referable question could, therefore, be said to arise out of the order of the Tribunal as the instructions or circulars issued by the Board were binding on the Departmental authorities.

Mr. Jetly, the learned counsel for the Revenue, on the hand, relied on our Courts judgment in the case of Commissioner of Income Tax Vs. Oricon Pvt. Ltd., , where, referring to a number of other decisions, it was held, in the context of the definition of "industrial company", that a construction company was not an industrial company. There being no decision of any High Court on the interpretation of s. 32A(2)(b)(iii) of the IT Act, as such, he contended, the question requires examination.

It is true that the judgment of our Court (supra) is delivered in the context of the definition of the expression "industrial company" and not in the context of investment allowance contemplated under s. 32A(2)(b)(iii). It is, however, equally true that the opinion of the Law Ministry given to the Board, it has not been shown, was accepted by the CBDT and any circular or instruction as contemplated in s. 119 was in fact issued. In the circumstances, the question is res integra not even concluded by any order, instruction or direction in terms of s. 119.

Accordingly we make the rule absolute. The Tribunal is directed to draw up a statement of the case and refer the question of law to this Court within six months from the date of the receipt of writ.

No order as to costs.