( 1 ) THREE questions have come up for answer by us. Those are as follows :"1. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the assessee is an industrial undertaking engaged in the business of production of coal ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the order passed under section 263 of the Act for the assessment year 1982-83 is bad in law ? 3. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in dismissing the appeals for the assessment year 1982-83/1983-84 as infructuous in view of their finding that the revision order under section 263 of the Commissioner of Income-tax was bad in law?"

( 2 ) WE make it clear that questions Nos. 2 and 3 arise because of the peculiar course that the assessment took in regard to the assessment year in question. At first, from the Income-tax Officer's assessment, the Revenue made an application for revision and from the order passed on revision, the Tribunal was approached. However, before that matter could be settled, pursuant to the revising order a fresh assessment was made which again reached the Tribunal.

( 3 ) THUS, questions Nos. 2 and 3 have become largely academic. It is only with regard to the first question that we are really concerned here. The section in regard to which the assessee claimed itself to be an industrial undertaking engaged in the business of production of coal is that relating to investment allowance, i. e. , section 32a.

( 4 ) IT is not in dispute that the investment allowance was claimed in regard to machinery which at the material time was wholly owned by the assessee.

( 5 ) NOR was it ever in dispute that the assessee used such machinery for the purpose of winning coal from mines.

( 6 ) ON the basis of this admitted fact, the argument on behalf of the Revenue was that none the less the assessee was not involved in any production activity at all because the winning of coal does not amount to production of anything.

( 7 ) IT was further argued on behalf of the Revenue by Mr. Agarwalla that even if it is assumed that the winning of coal is production of some sort yet, the assessee would still have to establish that it is an industrial undertaking. Such establishment was never properly made before the Tribunal. In any event the assessee's business largely concerns transport work also, and therefore, it could not claim investment allowance as a producer of coal.

( 8 ) WE first deal with the aspect of production. In Sub-section (2) of section 32a, the machinery has to be installed in an industrial undertaking "for the purposes of business of construction or manufacture or production of any article or thing. . . " Such article or thing cannot be in the Eleventh Schedule but it is nobody's case that coal is in the Eleventh Schedule.

( 9 ) MR. Agarwalla gave us several cases. Amongst those the case of C/t v. Venkateswara Hatcheries (P.) ltd. contains dicta to the effect that production of chicks through the assessee's specialised machinery, which aids such formation is not, within the meaning of the Income-tax Act, production of an article or thing. The Supreme Court laid emphasis on its view that chicks were not articles or things. Also, it said that the assessee does not cause the formation of chicks, which are formed by natural biological processes. The assessee's work is merely aiding such formation. Mr. Agarwalla also gave us the case of Lucky Minmat P. Ltd. v. CIT, where in relation to relief under section 80hh, the Supreme Court opined as follows (page 831) :"the conversion into lime and lime dust or concrete by stone crushers could legitimately be considered to be a manufacturing process while the mere mining of limestone and marble and cutting the same before it was sold in the market could not be so considered. "

( 10 ) THUS, Mr. Agarwalla argued that if the min

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