2004 (3) TMI 40

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....ial company within the meaning of section 2(7)(c) of the Finance Act, 1982, and hence entitled to the benefit claimed?" We have heard Mr. Manish R. Bhatt, learned standing counsel for the Revenue and Mr. R. K. Patel, learned counsel for the respondent-assessee. The assessee is a building contractor and had undertaken contracts from the Gujarat Mineral Development Corporation, Ahmedabad, for removal of overburden and earth excavation in lignite mineral areas of the GMDC. Sub-clause 3(a) of the agreement provided as follows: "The work required to be executed by the contractor is the removal of overburden/earth excavation in lignite mineral areas of the employer, the layer/depth whereof ranges from 8 to 30 metres approximately, which ....

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....ing, 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 VIA of the Income-tax Act) is not less than fifty-one per cent of such total income." The assessee claimed the aforesaid benefit on the basis that it is an industrial company as defined by section 2(7)(c) of the Finance Act, 1982. The Income-tax Officer rejected the assessee's claim as an industrial company. The Commissioner of Income-tax (Appeals) also rejected the assessee's claim on the ground that the assessee had undertaken only the contract work and was not engaged in mining operations. According to the Commissioner, although the removal of overbur....

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.... 8 to 30 metres, the GMDC employs the assessee for the earth excavation by preparing benches of the requisite height/length as per the mining rules/regulations and instructions issued from time to time by the mines manager/engineer-in-charge of the employer. It is submitted that because the work assigned to the assessee in the contract is so technical that it is required to be done as per the mining rules/regulations and under the instructions issued from time to time by the mines manager/engineer-in-charge of the employer. Having heard learned counsel for the parties, it appears to us that the finding given by the Tribunal that the assessee is engaged in mining is a finding based on the facts of the instant case which are apparent from ....