JUDGMENT A.R. Tiwari, J. 1. At the instance of the Department, the Tribunal has stated the case and referred the under-noted questions of law on the application registered as R. A. Nos. 54 to 57/Ind. of 1992 arising out of the order dated January 22, 1992, passed in I. T. A. Nos. 846, 847/Ind. of 1985 and I. T. As. Nos. 678, 679 and 680/Ind. of 1988 for the assessment years 1980-81, 1981-82, 1983-84 and 1984-85, for our consideration and opinion : " 1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in law in holding that the assessee is an 'industrial undertaking' engaged in the manufacture or production of articles or things and thereby holding that it is entitled to deduction under Sections 80HHA and 80J 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 that the assessee is entitled to investment allowance under section 32A and whether construction of buildings, dams, .roads, etc., amounts to manufacture or production of articles or things as envisaged under section 32A of the Income-tax Act, 1961 ?" 2. Briefly stated, the facts of the case are that the assessee is a registered firm engaged in the business of construction of dams, buildings, roads, etc. The assessee was denied investment allowance under section 32A as also deductions under Sections 80J and 80HHA of the Income-tax Act, 1961 (for short "the Act"), for (annexures A-1 to A-4). On appeal, the Commissioner of Income-tax (Appeals) allowed deductions under Sections 32A, 80J and 80HHA for the assessment years 1980-81 and 1981-82. Aggrieved, the Department came in appeal. The investment allowance and deductions were disallowed for the assessment years 1983-84 and 1984-85 even by the Commissioner of Income-tax (Appeals). The assessee, therefore, came up in appeal for the assessment years 1983-84 and 1984-85. Both the parties thus filed appeals. The Department filed appeals against the order relating to the assessment years 1980-81 and 1981-82, whereas the assessee filed appeals relating to the assessment years 1983-84 and 1984-85. The Tribunal held that the assessee-firm was an industrial undertaking. The Tribunal, therefore, allowed the deductions for all the four assessment years and also allowed investment allowance for the assessment years 1983-84 and 1984-85. The Tribunal held that the assessee-firm was an industrial undertaking. The Tribunal, therefore, allowed the deductions for all the four assessment years and also allowed investment allowance for the assessment years 1983-84 and 1984-85. Aggrieved, the Department filed applications under Section 256(1) of the Act. On the applications the Tribunal stated the case and referred the aforesaid questions. 3. We have heard Shri D.D. Vyas, learned counsel for the applicant, and Shri Nazir Singh, learned counsel for the non-applicant. 4. Section 80HHA of the Act permits deduction in respect of profits and gains from newly established small scale industrial undertakings in certain areas. Section 80J of the Act permits deduction in respect of profits and gains from newly established industrial undertakings or ships or hotel business in certain cases. Section 32A of the Act deals with investment allowance. Section 32A(2)(b)(iii) provides as under ; " (iii) in any other industrial undertaking for the purposes of business of construction, manufacture or production of any article or thing, not being an article or thing specified in the list in the Eleventh Schedule." 5. Counsel for the non-applicant very frankly brought to our notice the decision in CIT v. Shankar Construction Co. [1993] 204 ITR 412 (SC) and submitted that the questions are required to be answered in favour of the Department. In the aforesaid decision, it is held as under (page 434) : "So far as the decision of the High Court under appeal is concerned, it' appears to have concentrated more upon the meaning of the word 'industrial undertaking' and answered the question in favour of the assessee, holding that the assessee is an industrial undertaking within the meaning of the said sub-clause. Unfortunately, it has not adverted to the other requirement of the said sub-clause even though the Tribunal had referred to this aspect and had disagreed with the view taken by the Orissa High Court in N.C. Budharaja and Co.'s case [1980] 121 ITR 212. It must be remembered that the sub-clause is attracted only if all the requirements therein are satisfied besides the other requirements in the other provisions of the section." 6. It must be remembered that the sub-clause is attracted only if all the requirements therein are satisfied besides the other requirements in the other provisions of the section." 6. In view of the factual matrix and legal position, we are satisfied that the Tribunal was not justified in law in holding that the assessee was an industrial undertaking engaged in the manufacture or production of articles or things: It is held by the apex court that the activity of construction of a dam could not be characterised as manufacture or production of an article within the meaning of the Act. The Tribunal, therefore, committed an error in allowing the benefit of deduction under Sections 80HHA and 80J of the Act and also erred in granting investment allowance under section 32A of the Act. It is settled law that construction of buildings, roads and dams, etc., does not amount to manufacture or production of articles or things as envisaged under the Act. 7. The aforesaid decision, as fairly and frankly submitted by counsel for the non-applicant, concludes the matter against the assessee. 8. In the result, we answer both the questions in the negative, i.e., in favour of the Department and against the assessee. 9. This miscellaneous civil case is disposed of in terms indicated above, but without any orders as to costs. Counsel fee for each side is, however, fixed at Rs. 750, if certified. 10. A copy of this order shall be transmitted to the Tribunal for further action as may be necessary under the law.