ORDER

Though we are dismissing this writ petition preferred under Art. 32 of the Constitution of India at the stage of admission itself, we deem it appropriate to record our reasons therefor in view of the contentions urged by Shri N. A. Palkhivala, learned senior advocate for the petitioner.

2. In Commissioner of Income-tax v. N. C. Budharaja & Co., (1993) 204 ITR 412 ), a Bench of this Court comprising one of us (B. P. Jeevan Reddy. J.) and N. Venkatachala, J. held inter alia that the words "construction, manufacture or production of any article or thing not being an article or thing specified in the list in the Eleventh Schedule" occurring in sub-cl. (iii) of clause (b) of sub-sec. (2) of S. 32-A of the Income-tax Act, 1961 do not take in construction of a dam, a building, a bridge, a road and the like, The reason given was that a dam, a building, a bridge or road cannot be brought within the purview of the words "article or thing". After referring to the legislative history of the said clause it was held that the words "any article or thing" refer to only movables and that the use of the word "construction" in the said clause is referable to construction of ships. It was held that the words "construction, manufacture or production of any article or thing" cannot be extended to construction of immovable properties like the construction of a dam, building, bridge, a road and the like. It was observed that doing so would do violence to the plain meaning of the words ."article or thing" occurring in the said sub-clause.

3. In this writ petition, Sri Palkhivala contends that inasmuch as three important circumstances were not brought to the notice of this Court by the counsel appearing for the assessees in Budharaja & Co. (1993 Tax LR 1117) and were, therefore, not considered by this Court, the decision in so far as it relates to Sec. 32-A(2)(b)(iii) requires reconsideration and must be referred to a larger Bench. Had the said three circumstances been brought to the notice of this Court, says Sri Palkhivala, the decision would certainly have been different. The three circumstances mentioned by the learned counsel are the following:

(A) That the word "construction" occurring in the said sub-clause should be read independent of and not in association with the words following, viz., "manufacture or production of any article or thing". Learned counsel says that if so read disjunctively, the word "construction" takes within its sweep all types of construction including the construction of dams, buildings, bridges, roads and the like. Learned counsel brought to our notice the opinion of the Law Ministry tendered on February 16, 1984 to the Ministry of Finance and the reply of the Minister of State for Finance to an unstarred question in Parliament (given sometime in 1987-88). The opinion of the Law Ministry, as set out in the writ petition, reads as follows:

"With regard to the above question, it may be stated that S. 32A(2)(b)(iii) refers to any other industrial undertaking for the purpose of business of construction, manufacture or production (of an article) or thing specified in the list in the XI Schedule. The expression "construction" occurring in this provision would indicate that it stands independently and does not qualify articles or things. It is intended to cover any new machinery or plant entitled to any other industrial undertaking for the purpose of business or construction relating to the industrial undertaking concern".

The reply of the Minister of State for Finance to an unstarred question No. 5495 dated 11-12-1987 reads thus:

"(a) Investment allowance under Sec. 32A of the Income-tax Act is allowable in respect of new plant and machinery which is installed and used for the purposes of business of construction, manufacture or production of any article or thing.

(b) There has been a difference of opinion regarding the interpretation of this provision as to whether plant and machinery used for the purpose of business of constru