The Explanation to Section 2 (8) (c) of the Finance Acts, 1974 and 1975 provided a deeming provision for companies with sufficient income attributable to manufacturing and processing activities, irrespective of their main business.

( 1 ) THE only controversy in the present reference is whether the assessee is an " industrial company " within the meaning of Section 2 (8) (c) of the Finance Acts, 1974 and 1975, and as such liable to be taxed at a concessional rate.

( 2 ) THE facts found and/or admitted in the proceedings are, inter alia, as follows: In the assessment years involved, i. e. , 1974-75 and 1975-76, the previous years having ended on the 31st March of 1974 and 1975, respectively, the ITO taxed the assessee at the rate of 65% for income-tax and at the rate of 5% thereon for surcharge. Being aggrieved the assessee preferred appeals and contended before the AAC that, though it was a manufacturing and processing company within the meaning of Section 194 (4) of the I. T. Act, 1961, the ITO had treated the assessee as a trading company and charged tax at the rate applicable to the latter class of companies. It was contended further that, as the assessee was mainly engaged in processing and manufacturing concrete slabs as also in building constructions, it should have been treated as a company engaged in manufacturing and processing. The AAC held that the activity of the assessee of processing and manufacturing concrete slabs in the course of construction of buildings would not constitute manufacture or processing of goods. He noted that the relevant Finance Acts made a distinction between manufacturing concerns and trading concerns and held that the activities of the assessee carried on in the course of construction of buildings would not constitute manufacture or processing of goods.

( 3 ) BEING aggrieved, the assessee preferred further appeals before the Income-tax Appellate Tribunal and contended that it had a factory where it manufactured pre-cast floor tiles, pre-stressed concrete girders, hollow cast cement bricks and carried on the business of construction work as buildings contractors with such items. It was, therefore, submitted that the appellant was a manufacturer of goods within the meaning of the relevant Finance Acts. It was contended alternatively that even construction of buildings could amount to processing or manufacturing of goods.

( 4 ) ON behalf of the revenue it was submitted that from the directors' reports and the entries in the annual accounts of the assessee for the relevant period it would be apparent that the assessee was carrying on business simply as a building contractor. The items required in building construction might be manufactured in the assessee's factory and utilised in its construction work but this would not make the assessee a manufactur- ing company as it was carrying on business essentially as construction engineers. There was no sale of the items concerned.

( 5 ) THE Tribunal considered the respective submissions of the parties, the directors' reports and also the accounts of the assessee and came to the conclusion that the business of the assessee was mainly building and construction. The Tribunal found that there was no evidence to establish that the assessee sold the items manufactured to its customers. The Tribunal was of the opinion that, in order to be an " industrial company " within the meaning of the said Finance Acts, the assessee would have to establish that it was manufacturing and selling processed items in the open market for profit or income. Following the principles laid down in several decisions cited, the Tribunal held that the contracts of the assessee were not for the manufacture and sale of the said items but construction of buildings. The appeals of the assessee were accordingly dismissed.

( 6 ) ON an application of the assessee under Section 256 (1) of the I. T. Act, 1961, the Tribunal has drawn up a statement of case and has referred for the opinion of this court the following question of law :" Whether, on the facts and in the circumstances of the case and on a proper interpretation of Clause (c) of Sub-section (8) of Section 2 of the Finance Acts, 1974 an