These appeals are by assessee pertaining to assessment years 1979-80 to 1981-82. In all appeals, point in issue is identical. So all appeals are being disposed of by common order. 2. assessee-firm is engaged in construction of thermal power station and other building activities. While making original assessments, assessee was allowed investment allowance at rate of 25 per cent on new plant and machinery installed for carrying out business. ITO allowed investment allowance treating assessee firm as industrial undertaking. 3. Commissioner, subsequently, was of opinion that passed by ITO were erroneous and were prejudicial to interests of revenue. According to him, assessee-firm was not engaged in manufacturing, construction or produce and, consequently, investment allowance should not have been allowed. Commissioner after hearing assessee came to conclusion that assessee-firm was not industrial undertaking. According to him, investment allowance should not have been allowed. Consequently, h e set aside assessment orders and directed ITO to make fresh assessments on this point in light of finding given by him. 4. Before Tribunal, on behalf of assessee, it was contended that finding of Commissioner is not correct. assessee is engaged in construction of thermal power station and other building activities. Thus, assessee-company having as its main business carried out undertaking. As matter of fact, assessee is engaged in manufacture or processing of goods. counsel placed reliance on decision of Full Bench of Tribunal in case of ITO v. Hydle Constructions (P.) Ltd. [1983] 6 ITD 575 (Delhi). learned counsel further contended that when Commissioner passed orders on 24-6-1983, decision of Full Bench of Tribunal which was rendered on 20-10-1983 was not available. Since Full Bench decision of Tribunal is now available, this Tribunal is bound by said decision. According to learned counsel on facts of this case which are similar to case of Hydle Constructions (P.) Ltd. (supra), orders passed by ITO granting investment allowance were quite correct. Thus it was submitted that finding of learned Commissioner holding that orders of ITO were erroneous and prejudicial to interests of revenue is not correct. 5. learned departmental representative supported order of Commissioner and contended that in decision in Hydle Constructions (P.) Ltd.'s case (supra), Full Bench held that after finding out whether company was mainly engaged in activity of manufacture or processing of goods, income-tax authorities have to ascertain relevant facts and come to conclusion on consideration of all materials and also having regard to Explanation of definition of 'industrial company' as given in Finance Act. In present case such facts were not found out by ITO. Thus, it was submitted that finding of learned Commissioner is quite correct. 6. We have considered rival submissions and perused entire material on record. It is common ground that ITO while passing assessment orders for years under consideration granted investment allowance. Once he granted investment allowance, it shall be presumed that he was fully satisfied that assessee was industrial undertaking as defined in Finance Act. Commissioner was of view that in view of decision in case of N.C. Budharaja & Co. [1980] 121 ITR 212 (Ori.), assessee- company was not eligible for investment allowance. Commissioner was also of view that assessee does not fulfill provisions of section 32A(2)(b)(iii) of Income-tax Act, 1961 ('the Act'). ITO while passing assessment orders stated that investment allowance at rate of 25 per cent be allowed on plant and machinery. He has not given any reasons for allowing investment allowance. Commissioner has only set aside assessment orders and directed ITO to make fresh assessments. Commissioner was of view that assessee-company does not fall within definition of industrial undertaking as per section 32A(2)(b)(iii). ITO did not point out any specific words whether assessee-company falls within definition of industrial undertaking as per section 32A(2)(b)(iii). From assessment orders, it comes out that ITO before allowing investment allowance did not give any reasons whatsoever. As matter of fact, ITO before granting investment allowance did not find out facts on this point. Under circumstances, in our opinion, learned Commissioner was correct in holding that assessment orders passed by ITO were erroneous and prejudicial to interests of revenue. Commissioner without bringing on record detail facts came to conclusion that assessee-company was not industrial company under section 32A(2)(b)(iii). In Full Bench decision, it was held that for finding out whether, company was mainly engaged in activity of manufacturing or processing of goods, income-tax authorities have been directed to ascertain relevant facts and come to conclusion on consideration of all materials and also having regard to Explanation to definition of industrial company as given in Finance Act. So on this point, Full Bench directed ITO to find out facts and then decide issue in light of finding given by it. In present case as discussed above no such facts were found by ITO before allowing investment allowance. So orders passed by ITO were erroneous and prejudicial to interests of revenue. learned Commissioner has also given finding that assessee does not fall within definition of industrial undertaking as per section 32A(2)(b)(iii). This finding of learned Commissioner is set aside and this matter shall remain open before ITO when he will decide issue afresh. 7. Looking to aforesaid facts we are of view that finding of Commissioner is quite correct except as stated above. matter shall go back to ITO. He shall decide issue afresh in light of observations made above and also in accordance with law. 8. For statistical purposes, appeals shall be taken as allowed. Per Shri. B. Gupta, Accountant Member-I have carefully read consolidate order of learned Judicial Member in captioned appeals bearing Nos. 4168 to 4175 in cases of above named three appellants, but, with respect, I find myself unable to agree with his conclusion. 2. relevant facts leading up to controversy to be resolved in these 8 appeals may be briefly stated. assessees in appeal are partnership firm of contractors undertaking large scale construction of civil works on contract. For years under consideration these were engaged in execution of different contracts which had been obtained by them for erection of steel works in Chanderpur thermal power station for executing constructional project at Parli for Bharat Heavy Electricals Ltd., and for places. assessees had installed and put into use new machineries and plants for execution of their respective constructional projects and claims had been made by them for grant of investment allowance on such machineries and plants in terms of sub-clause (iii) of clause (b) of section 32A(2). ITO duly examined claims made by three assessees in each of years under consideration and found that requirement of provisions of section 32A had been fully satisfied. It would be useful to reproduce here findings recorded by ITO in assessment orders made in cases of three assessees. R.S. AVTAR SINGH & CO., DELHI (Assessment Year: 1979-80) "...The assessee's claim of investment allowance under section 32A on new plant and machinery had been duly supported by copies of vouchers filed." (Assessment Year: 1980-81) "...The claim for investment allowance made is found to be admissible." (Assessment Year: 1981-82) Dealing with claims for depreciation, extra depreciation and investment allowance, Income-tax Officer observed as follows: "The assessee has produced original bills for additions made in machinery, etc., which have been seen to justify its claim." "The assessee has also claimed extra depreciation and also investment allowance for which necessary provision of 'Investment Allowance Reserve' has been made as per provisions of Act and accordingly same is to be allowed as per rules." Ultimately at end of his order ITO allowed investment allowance due to assessee by holding as follows: "The assessee has claimed investment allowance of Rs. 4,31,494 under section 32A at rate of 25 per cent on new additions made in machinery and equipment costing to extent of Rs. 17,25,978. assessee has created investment allowance reserves of Rs. 3,23,621, i.e., 75 per cent of investment allowance claimed which is in order as per provisions of section 32A(2). As such whole amount shall be carried forward to be adjusted against income of future years." R.S. AVTAR SINGH & CO. (PARLI): (Assessment Year: 1979-80) "...The claim of investment allowance made in new machinery added during this year is found to be valid and is allowed." (Assessment Year: 1980-81): "The claim of investment allowance has been verified and found to be admissible. vouchers in support of cost of new machinery added during this year have also been duly filed." (Assessment Year: 1981-82) "Investment allowance under section 32A on new addition of Rs. 23,513 in machinery and equipment at rate of 25 per cent allowed Rs. 5,878." R.S. AVTAR SINGH & CO. (BHUSAWAL) (Assessment Year: 1980-81) "The claim of investment allowance made is found to be admissible and is accordingly allowed." "Investment allowance on new machinery added costing Rs. 1,75,619 is allowed Rs. 43,905." (Assessment Year: 1981-82) "The assessee has claimed sum of Rs. 28,884 under section 32A as investment allowance on addition in machinery and equipment to extent of Rs. 1,15,535. assessee has created investment allowance reserve as per provisions of Act which is in order and admissible." 3. It was in respect of investment allowance thus granted by ITO that Commissioner Delhi-8, took proceedings under section 263 of Act on identical footing that claims had been wrongly allowed. Indeed, it was ITO himself who put up proposals before Commissioner to initiate proceedings under section 263. ITO was of view that he assessees were contractors who executed contracts on behalf of their principals and that business carried on by them could not be considered to be industrial undertakings because assessees did not manufacture or produce any articles or things. Since Commissioner agreed with changed view of ITO, action had been taken by him under section 263. It is of crucial significance t o note that this is sole objection of Commissioner to grant of investment allowance to assessees. In other words, only reason for denying grant of investment allowance to assessees as given by Commissioner in his identical orders is that because assessees are contractors executing contracts for their principals, these cannot be said to be engaged in any industrial undertaking. Commissioner had found no fault or infirmity whatsoever in assessment orders as regards grant of investment allowance as he has nowhere said that assessee had failed to satisfy anyone of conditions prescribed under section 32A. Commissioner's view was that it was very nature and character of assessee's business, that is of contractor, which excluded grant of investment allowance to them under section 32A. only question, therefore, which arises in these appeals before us is whether above view of Commissioner is correct or not. 4. question as to whether assessee carrying on business as contractor, who instals and uses new machinery such as concrete mixers, rocks and boulder bursting machinery, drilling machines and other costly equipments is entitled to grant of investment allowance is ample settled for us by decision of Full Bench of Tribunal in case of Hydle Constructions (P.) Ltd. (supra). case before Full Bench was that of limited company engaged in construction of civil works like tunnels and dams, etc., and question that in construction of civil works like tunnels and dams, etc., and question that arose for its consideration related to various claims. These were: (a) For levy of lower rate of tax provided for industrial company under provisions of section 2(9)(c) of Finance Act, 1976; (b) For relief under sections 80J and 80HH of Act; and (c) For grant of investment allowance under section 32A. While considering these separate claims, Full Bench took note of distinctive statutory provisions applicable in respect of three claims. Dealing with first claim, Full Bench addressed itself to question as to whether assessee came within definition of 'industrial company' as provided in Finance Act, 1976. For so doing Full Bench had taken into account language employed in corresponding statutory provisions for providing relief such as section 45(d) of Wealth-tax Act, 1957. After analysing provisions defining 'industrial company' as contained in Finance Act and after taking into account comparative language of other provisions, Full Bench was pleased to lay down that in interpreting particular provisions words used have to be given there nature meaning and that intention of Legislature has to be gathered mainly from language used. If definitions are similar, same meaning should be given but if there are certain distinctive features like commission of requirement or addition of some term, significance of such omission or addition must also be kept in view. Full Bench after exhaustive examination of case law dealing with their claims arising under separate statutory provisions proceeded to record its finding on each of three claims as follows: As far as claim for lower rate of tax under Finance Act, 1976 was concerned, Full Bench held that assessee-company having activity of carrying out of civil construction works like tunnel, power houses, etc., as its main business can be treated as industrial company if other conditions prescribed in Finance Act are satisfied. As regards claim of Hydle Constructions (P.) Ltd. that it was entitled to benefit under sections 80J and 80HH, Full Bench negatived claim of assessee. As far as claim for grant of investment allowance is concerned, Full Bench noted amendment in section 32A with effect from assessment year 1978-79 and then held as follows: "For this year (Assessment Year 1978-79) it was provided that assessee would be entitled to investment allowance if machinery was used in industrial undertaking for business of construction, manufacture or production of any articles or things not being article or thing specified in Eleventh Schedule. In other words, except for such machinery which are producing articles or things mentioned in Eleventh Schedule, other machineries which are used for purposes of business of construction, manufacture or production of any other thing would get investment allowance. Thus it would appear that business of assessee insofar as it is business of construction, manufacture or production of any articles or things would be eligible for investment allowance. Income-tax Officer will, therefore, bear in mind above requirement of law while satisfying himself assessee's eligibility by fulfilling other conditions given in section 32A." In view of these findings of Full Bench of Tribunal, there can be no manner of doubt that Bench has expressly held that business of contractor carrying on constructional activity such as building of tunnels, dams and power stations, etc., would be entitled to investment allowance on its machinery and plant under provisions of section 32A. We ought to have, with respect, agreed with this decision of Full Bench as we feel that we are bound by it. It follows then that case of assessees before us is fully covered by ratio of decision of Full Bench of Tribunal as had been forcefully argued by learned counsel for assessees. It further follows that Commissioner's views in impugned orders holding that assessees being contractors undertaking construction of projects of others were not engaged in any industrial activity within meaning of section 32A is wholly fallacious and against decision of Full Bench of Tribunal. Just because assessees were not constructing civil works and thermal power plants for themselves, it could not be said that these were not engaged in activity of construction, manufacture or production within meaning of provisions of section 32A. In these circumstances, only consequence that could flow by following decision of Full Bench of Tribunal was that orders passed by Commissioner (Appeals) section 263 ought to have been reversed. That such would have been consequence is also accepted by Hon'ble Judicial Member. However, he has proceeded to set aside orders of ITO in cases of three assessees and ground that necessary enquiries for allowing claim of investment allowance had not been made by ITO. With respect I do not agree with this part of finding of learned Judicial Member as I find after careful reading of assessment orders passed in cases of three assessees that ITO had duly verified eligibility of assessees to grant of investment allowance and then made necessary deductions from income as per provisions of law. relevant extracts from assessment orders have already been reproduced by me in earlier portion of this order and these excerpts bear eloquent testimony to fact that investment allowance had been granted to assessees after carefully verifying their claim and after ITO had found that all conditions laid down in section 32A stood satisfied. 5. In aforesaid circumstances I do not find any reasons as would justify setting aside of assessment orders framed by ITO on ground that these were erroneous insofar as these were prejudicial to interests of revenue. Indeed having found that only ground on which Commissioner discerned error or prejudice in assessment orders was not sustainable in law in light of Full Bench decision in case of Hydle Constructions (P.) Ltd. (supra) and on proper perusal of assessment orders as discussed in foregoing part of this order, it would be contradiction in terms to set aside orders of ITO. Instead correct thing would be to set aside orders passed by Commissioner under section 263 for various years in case of three assessees. I, accordingly, hold so and while I set aside orders passed by Commissioner (Appeals), I restore assessment orders passed by ITO. 6. appeals filed by assessees are allowed. THIRD MEMBER ORDER Per Shri Ch. G. Krishnamurthy, Senior Vice President-These appeals were heard by Delhi Bench 'E' and as learned Members could not agree upon conclusion, point of difference of opinion as framed by them was referred to President under section 255(4) of Act, who in turn nominated me as Third Member to express my opinion in matter. point of difference of opinion is: "Whether, on facts and in circumstances of case, Commissioner of Income-tax Act, 1961 holding that assessment orders passed by ITO in respect of assessment years under consideration treating assessee-firm as industrial undertakings entitled to investment allowance were erroneous and prejudicial to interests of revenue?" 2. assessees in appeal are firm of contractors undertaking large-scale construction of civil works on contract. For years under consideration these were engaged in execution of different contracts which had been obtained by them for erection work in Chanderpur Thermal Power Station for executing constructional project at Parli for Bharat Heavy Electrical Ltd., and for undertaking construction of other thermal power stations at other places. It is common ground that assessees have installed and put into use new machinery and plant for execution of their respective construction works. assessees claimed that investment allowance on value of machinery and plant installed should be allowed to them in terms of sub-clause (iii) of clause (b) of section 32A(2). ITO after due verification of claims made by assessee allowed claims. Thereafter Commissioner initiated proceedings under section 263 on view that claim for investment allowance was wrongly allowed. view taken by Commissioner was that assessees being contractors executing contracts on behalf of their principals could not be said to be industrial undertaking within meaning of section 32A(2)(b)(iii) so as to qualify for allowance of investment allowance. There was no manufacture or production of any article or thing which according to Commissioner was essential for any concern to be styled as industrial undertaking. He, therefore, issued notices under section 263 and after considering assessee's objections held that assessees were not industrial undertaking and were not entitled to investment allowance. He set industrial undertaking and were not entitled to investment allowance. He set aside assessments made by ITO and directed ITO to redo assessments after giving reasonable opportunity to assessee and considering its contentions on point of allowance of investment allowance. Aggrieved by this order appeals were preferred before Tribunal. 3. Before Tribunal k reliance was placed on behalf of assessee on decision of Full Bench of Tribunal in case of Hydle Constructions (P.) Ltd. (supra) where Full Bench held that contractors engaged in nature of work as assessee herein are entitled to investment allowance. learned Judicial Member, who wrote leading order, came to view that ITO while passing assessment orders merely allowed investment allowance as claimed by Assessee on plant and machinery without giving any reasons for its allowance or making any enquiries. Since no reasons were given by ITO for his conclusion he held that Commissioner was justified in setting aside assessment orders and in directing ITO to make fresh assessments. He felt that allowance of investment allowance by ITO without enquiry and without furnishing reasons caused prejudice to interests of revenue. learned Judicial Member by referring to Full Bench order referred to above pointed out that in that Full Bench it was held that ITO should find out whether company was mainly engaged in activity of manufacturing or processing of goods and only after ascertaining those facts he must come to conclusion whether definition of 'industrial company' as given in Finance Act was satisfied or not. Since no such enquiry was made in this case in his considered view ITO erred in allowing investment allowance and Commissioner was justified in setting aside those assessments. Dealing with finding given by Commissioner that assessee-company did not fall within definition of 'industrial undertaking' as per section 32A(2)(b)(iii), learned Judicial Member felt that finding was not proper and vacated it by pointing out that matter would remain before ITO while he decides case afresh. 4. But learned Accountant Member was of totally different opinion. By quoting from assessment orders of each of these assessees for each of these years, he pointed out that ITO made due and relevant enquiries before allowing claim of investment allowance and it would be incorrect to state on those facts that investment allowance was allowed without making proper enquiries. In each of these observations extracted by learned Accountant Member in his order, it will be seen that ITO concerned mentioned that new plant and machinery was purchased and supporting vouchers were seen, meaning thereby that machinery and plant on which investment allowance was allowed was new, actually purchased and used in business. It was also pointed out in one of orders that investment allowance reserve was also created. Commissioner in his orders never said that ITO did not carry out any enquiry. only reason given by him was that assessees, who are contractors executing contracts for their principals could not be said to be industrial undertaking. No infirmity whatever was found in assessment orders passed by ITO nor was there any finding that assessees failed to satisfy and one of requirements prescribed under section 32A, i.e., to say learned Accountant Member's thinking that Commissioner set aside assessments not on ground that ITO did not make any enquiry but on ground that assessee, who is contractor, having regard to nature of business carried on by him, could not be said to be industrial undertaking. Then he made reference to decision of Full Bench of Tribunal in Hydle Constructions (P.) Ltd.'s case (supra) and found that Full Bench decided three issues: one relating to levy of lower rate of tax provided for industrial company as per Finance Act, 1976 for relief under sections 80J and 80HH and finally for grant of investment allowance under section 32A. While considering these three separate claims, Full Bench relied upon relevant statutory provisions, which are distinct to and separate from each other. It was only while dealing with first claim, namely, levy of lower rate of tax provided for industrial company under Finance Act, 1976, Full Bench held that as per language used for definition of industrial company in Finance Act, assessee-company having activity of carrying out on civil construction works like tunnels, power houses, etc., its main business could be treated as industrial company if other conditions prescribed in Finance Act were satisfied. It was to satisfy whether other conditions prescribed in Finance Act were satisfied or not, further enquiry was directed. As far as claim of investment allowance was concerned, Full Bench directly held that it was entitled to investment allowance. For that no enquiry was directed to be made. When Full Bench had thus expressly held that business of contractor carrying on constructional activity such as building of tunnels, dams and power stations would be entitled to investment allowance on its machinery and plant under section 32A, Full Bench decision ought to have been followed and no direction to carry out any further enquiry need by given. He also held that Commissioner's view holding that assessees being contractors undertaking constructions of projects of others were not engaged in industrial activity within meaning of section 32A was wholly fallacious and against decision of Full Bench. Since ITO had already made enquiries which were necessary under Act and since it was not point of Commissioner that investment allowance was allowed by ITO without carrying out any enquiry and since view taken by Commissioner was contrary to view expressed by Full Bench, learned Accountant Member felt that there was no need to set aside assessments and direct further enquiry as held by learned Judicial Member. He, therefore, preferred to set aside orders passed by Commissioner. Thus, above difference of opinion arose which was referred to me for my opinion. 5. After careful consideration of facts on record and presuming relevant orders passed by authorities concerned and that of Full Bench of Tribunal, I have no doubt in my mind that as rightly pointed out by learned Accountant Member that Full Bench in case of Hydle constructions (P.) Ltd. (supra) had categorically held that contractors undertaking constructional works could be said to be industrial undertakings because they would be eligible for investment allowance. Insofar as this finding of Full Bench is concerned, this was not made to depend upon any enquiry to be carried out by ITO on facts. It is question of principle and interpretation of section 32A. Full Bench decided in principle that contractors engaged in construction of tunnels, dams, thermal power stations, etc., are industrial undertakings eligible for investment allowance. Once this is so question of these assessees who are engaged in such constructional activity could not be regarded as industrial undertakings does not survive for consideration insofar as decision on that point is concerned. Commissioner has not seen Full Bench order nor it was not brought to his notice nor it was not pressed before by then. He relied upon decision of Bombay High Court in case of CIT v. N.U.C. (P.) Ltd. [1980] 126 ITR 377 in support of his conclusion that assessee is not industrial undertaking but that decision referred to considered definition of industrial company defined in section 2(7)(d) of Finance Act, 1966 as distinguished from industrial undertaking referred to and defied in section 32A. Both of them are totally different and distinguish and one is not other because by definition they are different. definition of industrial company as referred to in section 2(7)(d) could not be imported for industrial undertaking used in section 32A. This was mistake committed by Commissioner. learned Judicial Member has also followed same view. He also went by definition of industrial company as used in section 2(7)(d) as opposed to industrial undertaking used in section 32A. In other words, there seemed to be feeling that industrial company and industrial undertaking is one and same, which is not case. Once they are not same, judgment of Bombay High Court, which turned upon definition of industrial company cannot govern issue before Tribunal and on other hand attention of Commissioner was drawn to decision of Orissa High Court in case of N.C. Budharaja (supra), portion of which was quoted in his order which I am extracting here below: "The concept of industrial undertaking need not necessarily be confined to manufacture and production of articles, even in absence of either of them in strict sense, there could be industrial undertaking. business of contractor who has undertaken construction of irrigation project would be industrial undertaking for purpose of Industrial Disputes Act, 1947." This would show that Orissa High Court has decided that business of contractor, who had undertaken construction of irrigation projects would be industrial undertaking for purpose of Industrial Disputes Act, 1947. Commissioner distinguished this case by pointing out that that was decision given for purpose of Industrial Disputes Act but did not consider whether observations made therein to understand meaning of industrial undertaking would be useful and relevant for purposes of understanding same expression used in section 32A. Therefore, Commissioner is not justified in expression used in section 32A. Therefore, Commissioner is not justified in relying upon definition of industrial company used in section 2(7)(d) of Finance Act, 1966 to interpret industrial undertaking used in section 32A. Since learned Judicial Member has followed same line of thinking as that of Commissioner, I am unable to walk along with him. It is very pertinent to point out that learned Judicial Member has categorically held that Commissioner's finding that assessee was not industrial undertaking was not correct and set it aside meaning thereby that assessee is industrial undertaking within meaning of section 32A. When assessee is thus held to be industrial undertaking as per section 32A(2)(b)(iii) and when no further enquiry is to be made by ITO, he having made all enquiries necessary before granting investment allowance it not being even point taken up by Commissioner for invoking section 263 there does not remain anything in way of assessee getting claim of investment allowance. With set aside of finding of Commissioner on issue of industrial undertaking, there does not seem to by any difference of opinion between learned two Members except in regard to further enquiries to be made. Since enquiries were already made in this case and since it was not even point of Commissioner that further enquiries should be made or should have been made, further enquiries in this case were not at all needed. I am, therefore, of view that view taken by learned Accountant Member is correct and I express my agreement with that view. 6. Now matter will go back before regular Bench for disposal of appeals in accordance with majority opinion. *** R.S. AVTAR SINGH & CO. v. INCOME TAX OFFICER