AJIT K. SENGUPTA, J.

( 1 ) IN this reference under Section 256 (1) of the Income-tax Act, 1961, the following questions of law have been referred by the Tribunal for the opinion of this court :

( 2 ) QUESTIONS at the instance of the assessee :"1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the rate of depreciation as made applicable with effect from April 2, 1983, was not applicable for the assessment year 1983-84 in the case of the assessee ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the company was not an industrial company mainly engaged in manufacturing of goods ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the rate of income-tax applicable to the company will be that applicable to a non-industrial company ? 4. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the company was not entitled to extra shift depreciation ?"

( 3 ) QUESTIONS at the instance of the Revenue :"1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in holding that the preparation of food in a hotel was manufacture or production of article of the nature as envisaged in Section 32a of the Income-tax Act, 1961 ? 2. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in holding the hotel building as plant when the Tribunal itself viewed in Income-tax Appeals Nos. 937/ (Cal) of 1982 and 6g6/ (Cal) of 1983 in the assessee's own case that no building or structure used as premises in which the business is carried on can be ex facie taken as plant unless it is established that it is impossible for the manufacturing equipment in the hotel to function without the particular type of structure and the building of the hotel had no such particular structure ?"

( 4 ) THIS reference relates to the income-tax assessments of the assessee-company for the previous year ending on November 14, 1982, corresponding to the assessment year 1983-84. The assessee-company runs a five-star hotel in Calcutta styled "hotel Hindusthan International", At the outset, we find that questions Nos. 2, 3 and 4 referred at the instance of the assessee, and question No. 5 referred at the instance of the Revenue, are already covered by our earlier judgments in the case of the assessee-company itself. Questions Nos. 2 and 3 relate to the issue whether the assessee is an industrial company entitled to claim the concessional rate of income-tax. This issue came up for consideration before this court in the case of the assessee-company for the assessment year 1982-83 in Income-tax Reference No. 74 of 1990 (S. P. Jaiswal Estates Pvt. Ltd. v. CIT (No. 1) [1994] 209 ITR 298 ). By our judgment delivered on September 22, 1993, we have already held that having regard to the definition of industrial company as contained in Section 2 (7) (c) of the Finance Act, 1981, the assessee-company is entitled to claim the concessional rate of income-tax since it was engaged in the processing of goods during the relevant previous year. In this year too we find that the definition of industrial company as contained in Section 2 (7) (c) of the Finance Act, 1983, is in pari materia with that contained in the Finance Act, 1982. We also find from the printed accounts of the assessee-company that the earnings from the restaurant on account of food, beverages, etc. , were as under : Rs.  

Restaurant receipts from food, beverages account 54,24,279

Less : Cost of food and beverages consumed earning from restaurant 28,85,286 25,38,993

Net profit as per profit and loss account 28,37,915

Assessed total income as per assessment order 30,76,560

( 5 ) THE earnings from the restaurant are more than 51 per cent. of the assessed total income as well as the net profit as per profit and l

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