1. Three questions have come up for answer by us. Those are as follows :
'1. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the assessee is an industrial undertaking engaged in the business of production of coal ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the order passed under section 263 of the Act for the assessment year 1982-83 is bad in law ?
3. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in dismissing the appeals for the assessment year 1982-83/1983-84 as infructuous in view of their finding that the revision order under section 263 of the Commissioner of Income-tax was bad in law?'
2. We make it clear that questions Nos. 2 and 3 arise because of the peculiar course that the assessment took in regard to the assessment year in question. At first, from the Income-tax Officer's assessment, the Revenue made an application for revision and from the order passed on revision, the Tribunal was approached. However, before that matter could be settled, pursuant to the revising order a fresh assessment was made which again reached the Tribunal.
3. Thus, questions Nos. 2 and 3 have become largely academic. It is only with regard to the first question that we are really concerned here. The section in regard to which the assessee claimed itself to be an industrial undertaking engaged in the business of production of coal is that relating to investment allowance, i.e., section 32A.
4. It is not in dispute that the investment allowance was claimed in regard to machinery which at the material time was wholly owned by the assessee.
5. Nor was it ever in dispute that the assessee used such machinery for the purpose of winning coal from mines.
6. On the basis of this admitted fact, the argument on behalf of the Revenue was that none the less the assessee was not involved in any production activity at all because the winning of coal does not amount to production of anything.
7. It was further argued on behalf of the Revenue by Mr. Agarwalla that even if it is assumed that the winning of coal is production of some sort yet, the assessee would still have to establish that it is an industrial undertaking. Such establishment was never properly made before the Tribunal. In any event the assessee's business largely concerns transport work also, and therefore, it could not claim investment allowance as a producer of coal.
8. We first deal with the aspect of production. In Sub-section (2) of section 32A, the machinery has to be installed in an industrial undertaking 'for the purposes of business of construction or manufacture or production of any article or thing...' Such article or thing cannot be in the Eleventh Schedule but it is nobody's case that coal is in the Eleventh Schedule.
9. Mr. Agarwalla gave us several cases. Amongst those the case of C/T v. Venkateswara Hatcheries (P.) ltd. : 237ITR174(SC) , contains dicta to the effect that production of chicks through the assessee's specialised machinery, which aids such formation is not, within the meaning of the Income-tax Act, production of an article or thing. The Supreme Court laid emphasis on its view that chicks were not articles or things. Also, it said that the assessee does not cause the formation of chicks, which are formed by natural biological processes. The assessee's work is merely aiding such formation. Mr. Agarwalla also gave us the case of Lucky Minmat P. Ltd. v. CIT : 245ITR830(SC) , where in relation to relief under section 80HH, the Supreme Court opined as follows (page 831) :
'The conversion into lime and lime dust or concrete by stone crushers could legitimately be considered to be a manufacturing process while the mere mining of limestone and marble and cutting the same before it was sold in the market could not be so considered.'
10. Thus, Mr. Agarwalla argued that if the mining of limestone is not a manufacturing process, the winning of coal cannot also be either manufacture or production.
11. He further argued on the basis of the Supreme Court decision in the case of CIT v. N.C. Budharaja and Co. : 204ITR412(SC) , that if a construction of a dam is made, it does not amount to production or manufacture of an article, as the Supreme Court has clearly opined.
12. We take note that in N.C. Bitdharaja's case : 204ITR412(SC) , the Supreme Court clearly stated at page 423 that not all production is manufacture, but all manufacture is production. Mr. Bajoria appearing for the assessee relied on a decision of our Division Bench given in the case of CIT v. Mercantile Construction Co.  74 Taxman 41.
13. Following an old and long standing decision given by Chakravartti C.J., in 1959, which was later approved by the Supreme Court the Division Bench opined that the winning of coal is no doubt production. At paragraph 12 of the judgment it said that after winning coal something that was not there comes up, and it is, therefore, a production of coal. The Division Bench followed its own decision in the later case of Khalsa Brothers v. CIT : 217ITR185(Cal) . Mr. Bajoria also relied on the interesting case of CIT v. Shaan finance (P.) Lid. : 231ITR308(SC) , where the Supreme Court opined that a financier owning machinery might still be entitled to investment allowance even if the machinery is actually used by its lessee for the purpose of production. Going on the language of Sub-sections (1) and (2) of the said section, the Supreme Court found, on an accurate assessment of the language (we say this with the greatest respect), that the language does not disentitle the financier from investment allowance in the above circumstances.
14. Even considering the later Supreme Court decision given by Mr. Agar-walla, we are still of the opinion that the view taken by our Division Bench as to winning of coal being production is, with due respect, perfectly sound and consistent with common sense. We have absolutely no reason to differ from the reasoning given in Mercantile Construction Co. 's case  74 Taxman 41 (cal) and we respectfully adopt the same.
15. The point that the assessee is still not an industrial undertaking even though it might be engaged in production of coal is, in our opinion, also to be decided against the Revenue. Under the definition of an industrial undertaking given under section 33B, Explanation, mining activity would bring the assessee within the definition of an industrial undertaking. But we need not import the definition of another section to the present one, although ordinarily the definition given in one section in an Act can be used for the purposes of another section unless the context indicates otherwise.
16. So far as the assessee is concerned, an undertaking it certainly is. We have found no facts from which we can opine that the assessee is not an industrial undertaking. Ordinarily speaking if a manufacturing activity or an article producing activity is carried on, an undertaking carrying on such activity is to be classed as an industrial one. It might be small scale or large scale, that does not matter much. Even if an undertaking is manufacturing or producing articles, but is still not to be classed as an industrial one for this, clear indications have to be given as to why this difference should be made in the case of the undertaking in question, so that it stands out from the general category- We were not shown any such particular difference excepting that the assessee was also said to carry on transport business.
17. It suffices in this regard to mention that on the principle of Shaan Finance's case : 231ITR308(SC) , if the assessee owns the machinery for which investment allowance is claimed, and such machinery is used for production then the section applies ; it does not matter if the use for production is made by the lessee or only in one industrial part of the assessee's business undertaking. Accordingly, the transport business of the assessee does not tilt the question one way or the other.
18. As such the questions are answered all in favour of the assessee, the academic questions taking the same fate as the substantial question No. 1; the first question is answered in the affirmative and so are the second and the third ones.
19. All parties and all others concerned to act on a signed xerox copy of this dictated order on the usual undertakings.