Judgment :- R. JAYASIMHA BABU, J. The common question that has been referred to us for our consideration is as to whether the assessee who is engaged in the construction of buildings as also in the manufacture of doors, windows, cement slabs, etc. and from which activities of manufacture the assessee claims to derive 51 per cent of its income is a manufacturing company for the purpose of Finance (No. 2) Act, 1977. The assessment years are 1973-74 to 1977-78. 2. "Industrial company" is defined in s. 2(7)(c) of Finance (No. 2) Act, 1977, as follows: "'Industrial company " means a company which is mainly engaged in the business of generation or distribution of electricity or any other form of power or in the construction of ships or in the manufacture or processing of goods or in mining, Explanation : For the purposes of this clause, a company shall be deemed to be mainly engaged in the business of generation or distribution of electricity or any other form of power or in the construction of ships or in the manufacture or processing of goods or in mining, if the income attributable to any one or more of the aforesaid activities included in its total income of the previous year (as computed before making any deduction under Chapter VI-A of the IT Act) is not less than fifty-one percent of such total income." 3. It is evident from the Explanation that before assessee-company can be regarded as an industrial company, it must be shown to be engaged in any one of the following activities as its main activity; (a) generation or distribution of electricity or any other form of power; (b) construction of ships; (c) manufacture or processing of goods; (d) mining 4. Expln. to s. 2(7)(c) further explains as to what the legislature meant by using the words 'mainly engaged in the business'. If the income attributable to any one or more of the aforesaid activities referred to in s. 2(7)(c) in the total income of the previous year as computed before making any deduction under Chapter VI-A of the IT Act is not less than fifty-one per cent of the total income, then such company is to be regarded as an industrial company. 5. 5. It is, therefore, necessary to ascertain as to whether the 51 per cent or more of the income of the company which claims to be an industrial company is derived from any one of the activities specified in s. 2(7)(c) of Finance (No. 2) Act, 1977. 6. The fact that the assessee is engaged, in the construction of buildings, by itself does not disqualify it from claiming to be an industrial company if it is able to show that 51 per cent or more of the total income is derived from an activity which can be regarded as manufacture or processing of goods. That was indeed the endeavour of the assessee before the authorities below, and it had succeeded in convincing the CIT, who in his order dt. 27th July, 1982, relating to the asst. yrs. 1973-74; 1974-75; 1976-77 and 1977-78 had, after calling for the details from the assessee and after perusing the data so furnished, held that the data relating to 17 items of works completed by the assessee during the period from 28th January, 1971 to 1st December, 1978, showed that the total value of the bills was Rs. 53.60 lakhs of which the bill amount relatable to activities accepted to be manufacture or processing activities amounted to Rs. 38.88 lakhs or 72.53 per cent of its total value of the bills. The CIT had also called for the comments of the ITO on the data so produced before him. The ITO had observed that the assessee had taken into account the works involving cement or casting cement slabs and other works involving the use of cement, as constituting manufacturing activity to arrive at the percentage of manufacturing activity at 72.53 per cent of the total value of the work. The CIT however held that the figure of 72.53 per cent as representing the value of the manufactured goods was correct. He had, therefore, directed the ITO to recompute the tax payable by treating the assessee as an industrial company. Against the order of the CIT, the Revenue went in appeal to the Tribunal. The Bench which heard the appeal was divided in its view. The Judicial Member took the view that the appeal was to be allowed while the Accountant Member took the view that the appeal should be rejected and the assessee held to be an industrial company. Against the order of the CIT, the Revenue went in appeal to the Tribunal. The Bench which heard the appeal was divided in its view. The Judicial Member took the view that the appeal was to be allowed while the Accountant Member took the view that the appeal should be rejected and the assessee held to be an industrial company. On a reference to a third Member, the third Member being the Vice President of the Tribunal, agreed with the Accountant Member and held that the appeal should be dismissed. 7. Learned counsel for the Revenue submitted before us that the assessee could never be regarded as industrial company as it is engaged in the business of construction of buildings and building is not an item of manufacture and further since the activity is construction of building any fabrication done by it for windows or doors or the production of concrete slabs is only for the purpose of building and such activity cannot be regarded as manufacturing activity. The primary requirement of s. (2)(7)(c), according to the counsel, is that the activity in which the assessee is engaged should be an activity of a kind set out in the sub-section and as that is not the main activity of the assessee it cannot be treated as an industrial company. Explanation to that provision, according to the counsel is, not to be read as part of the main provision and if the assessee is unable to show that its main activity is manufacture or processing of goods such assessee cannot claim the status of industrial company by showing that 51 per cent or more of its income is derived from the activity which can be accepted as amounting to manufacture or processing of goods. 8. Counsel relied on the decision of this Court in the case of CWT vs. Dr. G. Nallakrishnan 1997 (140) CTR(Mad) 266. That was a case under the WT Act and the statutory provision considered therein was s. 5(1)(xxxii) of that Act. 8. Counsel relied on the decision of this Court in the case of CWT vs. Dr. G. Nallakrishnan 1997 (140) CTR(Mad) 266. That was a case under the WT Act and the statutory provision considered therein was s. 5(1)(xxxii) of that Act. The Court held that a firm which was engaged in the construction of buildings, manufacture or production of intermediary articles for the purpose of its construction work, like steel fabrication work, making doors and windows and also making reinforced concrete works, such undertaking could not be regarded as industrial undertaking, so long as the intermediary product or manufacture is an integral part of the construction business. 9. Sec. 5(1)(xxxii) of the WT Act does not contain any Explanation similar to one found under s. 2(7)(c) of Finance (No. 2) Act of 1977. 10. Counsel for the Revenue also referred to the case of CIT vs. Minocha Bros. (P) Ltd. wherein the Delhi High Court held that the building contractor who in the process of that work also manufactured doors could not be regarded as industrial company as such manufacturing activity was really a part of the construction work. It was held that the real activity of the assessee therein was to construct buildings which was not in the nature of processing or manufacturing goods. 11. Counsel also placed reliance on the decision of the Supreme Court in the case of CIT vs. N. C. Budharaja & Co. & Ani. in support of his submission that an assessee who is engaged in the business of construction cannot be regarded as industrial undertaking. Counsel referred to the observance of the Court at p. 424 of the report wherein it was observed that the manufacture by the assessee in that case of some of the articles like gates, windows and doors which go into the construction of a dam made little difference to the principles, for deciding as to whether the assessee is entitled to the benefit under s. 80HH of the IT Act. The Court also proceeded to observe in that very paragraph that it was not necessary for the Court to express any opinion on the question as to what would be the position if the respondent had claimed benefit of s. 80HH of the IT Act on the value of the articles manufactured or produced by him which articles have gone into/consumed in the construction of the dam. 12. Learned counsel for the assessee, on the other hand, submitted that the assessee has been found to be an industrial company as after perusing the data which had been scrutinised and considered by the ITO also, the CIT(A) had held in appeal, that over 73 per cent of the income of the assessee was derived from activity which could properly be regarded as manufacturing activity and, therefore, the assessee satisfied the stipulation in the Expln. to s. 2(7)(c) of Finance (No. 2) Act of 1977 and is entitled to be regarded as an industrial company. He placed strong reliance on the decision of the Supreme Court in the case of Minocha Bros. (P) Ltd. vs. CIT which was an appeal from the decision of the Delhi High Court in the case of CIT vs. Minocha Bros. (P) Ltd. (supra). The Supreme Court affirmed the decision of the Delhi High Court but on a ground different from that on which the High Court had based its decision. The apex Court noticed the fact that the appellant before it was engaged in the construction of buildings; that the appellant therein was also manufacturing windows, doors, shutters and other goods for the purpose of constructing the building and that the goods manufactured by it were used in the construction made by it. The Court thereafter took note of the Expln. to s. 2(7)(c) of Finance (No. 2) Act, 1977. 13. We cannot subscribe to the view canvassed for the Revenue that the construction company per se is ineligible for claiming a status of industrial company for the purpose of s. (2)(7)(c) of Finance (No. 2) Act, 1977. The fact that the word 'construction' is used in s. 2(7)(c) refers to ships and not to buildings does not imply that a company which is engaged in construction of buildings as also in the manufacture of articles is debarred from claiming the status of industrial company, every when such company is able to satisfy the test of having received 51 per cent of its income from manufacturing activity or from the processing of goods or other activities referred to in s. 2(7)(c). The Revenue's contention that all construction companies are wholly excluded from s. 2(7)(c) irrespective of the extent to which their income is attributable to manufacturing activity must, therefore, be rejected. 14. In the case of CIT vs. Mnocha Bros. The Revenue's contention that all construction companies are wholly excluded from s. 2(7)(c) irrespective of the extent to which their income is attributable to manufacturing activity must, therefore, be rejected. 14. In the case of CIT vs. Mnocha Bros. (supra), the Supreme Court clearly recognised the eligibility of construction company to be regarded as industrial company if such company was able to adduce evidence to demonstrate that 51 per cent or more of its income was derived from manufacturing or processing of goods. The question is one of proof and not one of eligibility for claiming that status. 15. Learned counsel for the assessee sought to contend that the CIT(A) has found that 72.53 per cent of the assessee's income was due to manufacturing activity and that finding being on record, the assessee is entitled to be treated as industrial company. Having gone through the order of the CIT(A), we are not satisfied that his finding was rendered after considering the evidence which was required to be considered for recording such finding. The CIT(A) has not given any reason for his holding that the works like casting cement or reinforced cement slabs and other works involving use of cement constitute manufacturing activity. Revenue also had not addressed itself this aspect but had only been pursuing the contention that any construction company was ineligible for being regarded as an industrial company. The Judicial Member who considered the order of the CIT was of the view that the finding recorded by the CIT was not adequately supported by materials on record. 16. The assessee though engaged in the business of construction besides being engaged in the manufacture of certain articles is eligible for being regarded as an industrial company if it is able to establish that 51 per cent or more of its income in the relevant previous year was on account of its manufacturing activity. 17. In these circumstances, we consider it just to set aside the orders of the authorities below and direct the AO to make a fresh order in accordance with law after giving opportunity to the assessee as also to the Revenue to adduce such evidence as they may wish to and after considering the same, decide as to whether the proof adduced by the assessee is sufficient to hold that the assessee is an industrial company. The question referred to us is returned unanswered, as the answer would depend upon the finding to be recorded by the AO. We direct the AO to complete the fresh assessment within a period of six months from the date of receipt of a copy of this order. The parties to bear their respective costs.