JUDGMENT : 1. On an application being filed by the Revenue u/s 256(2) of the Income Tax Act, 1961, this court called upon the Tribunal to draw up a statement of case and refer the following question for the opinion of this court : "Whether, on the facts of the case, the Tribunal was justified in allowing deduction u/s 80HH when a specific finding was recorded by the Income Tax Officer that the assessee contravened the conditions laid down in Section 80HH(2) more particularly in Clause (iii) of Sub-section (2)?" 2. The assessee is a contractor and was engaged in the construction of Sunei Spillway in a backward area of the State of Orissa. For the assessment year 1981-82, he claimed certain deductions u/s 80HH of the Income Tax Act, 1961. The Income Tax Officer came to the conclusion that the assessee has not fulfilled the conditions prerequisite for claiming deduction u/s 80HH of the Act and accordingly he rejected the assessee's claim. On an appeal being filed by the assessee, the appellate authority came to hold that the assessee was entitled to deduction u/s 80HH to the extent of 20 per cent. out of his profit in computing the total income for the year under consideration. The Revenue carried the matter to the Tribunal in second appeal. The Tribunal dismissed the second appeal following the Bench decision of this court in Commissioner of Income Tax Vs. N.C. Budharaja and Company which decision had been rendered in respect of the self-same assessee, as it was conceded by the Department that the aforesaid decision would apply. But that decision was under challenge before the Supreme Court. The Revenue, therefore, filed an application before the Tribunal to refer a question u/s 256(1) but as the Division Bench decision of this court was operating in the field, the Tribunal refused to refer the same. The Revenue then approached this court u/s 256(2) and on being called by this court, the question has been referred as already stated. 3. Learned standing counsel appearing for the Department contended that the Bench decision of this court in relation to the self-same assessee in Commissioner of Income Tax Vs. N.C. Budharaja and Company, has been considered and reversed by the Supreme Court in the case of Commissioner of Income Tax, Orissa and Others Vs. 3. Learned standing counsel appearing for the Department contended that the Bench decision of this court in relation to the self-same assessee in Commissioner of Income Tax Vs. N.C. Budharaja and Company, has been considered and reversed by the Supreme Court in the case of Commissioner of Income Tax, Orissa and Others Vs. N.C. Budharaja and Company and Others, and in view of the finding and conclusion arrived at by the Supreme Court, the assessee is not entitled to claim any deduction u/s 80HH of the Income Tax Act. Mr. Badu, appearing for the assessee, on the other hand, contended that the decision of the Supreme Court referred to is distinguishable on the facts and has no binding force in the present case. But on being asked he could not point out any point of distinction. Their Lordships of the Supreme Court have fully analysed the provisions of Section 80HH of the Income Tax Act and have laid down the pre-conditions to be satisfied before an assessee can claim deduction thereunder. On considering the activity of the assessee in the construction of a dam and reversing the decision of this court, their Lordships of the Supreme Court held that the assessee is not entitled to the benefit provided u/s 80HH because the activity of construction of a dam could not be characterised as manufacture or production of an article or articles within the meaning of Section 80HH(2)(i) of the Act. Considering the judgment of this court under appeal ( Commissioner of Income Tax Vs. N.C. Budharaja and Company, ) their Lordships had observed (at page 425) :, "The Orissa High Court has relied upon the meaning assigned to the word 'article' in the Shorter Oxford English Dictionary, to the effect--'a commodity ; a piece of goods or property'. Since article means a piece of property, the learned judges said it can as well mean immovable property. Accordingly, they held, a dam is also an article. In our opinion, the High Court was not right in dissociating the said word from its context, viz., the preceding words, which has led them to attach an unnatural meaning to the said word." 4. Accordingly, they held, a dam is also an article. In our opinion, the High Court was not right in dissociating the said word from its context, viz., the preceding words, which has led them to attach an unnatural meaning to the said word." 4. In view of the aforesaid pronouncement of the apex court in relation to the activities of the self-same assessee who was engaged in construction of a dam, which, in our opinion, will also apply for construction of Sunei Spillway, the conclusion is inescapable that the assessee is not entitled to any deduction u/s 80HH of the Income Tax Act, we accordingly answer the question posed by holding that the Tribunal was not justified in allowing the deduction u/s 80HH. We answer the question in favour of the Department and against the assessee.