JUDGMENT
1. In respect of the assessment year 1974-75, at the instance of the Revenue, the following two questions have been referred for the opinion of this court :
"1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the lease money received by the assessee during the assessment year 1974-75 was assessable under section 28 and not under section 56 of the Income-tax Act, 1961 ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in holding that the assessee-company was entitled to development rebate and deduction under section 80J of the Income-tax Act, 1961 ?"
2. In so far as question No. 1 is concerned, relying upon the order of the Tribunal in the case of the assessee for the assessment years 1971-72 and 1972-73, the Tribunal held that the income of the assessee from lease rent should be taxed under section 28 of the Income-tax Act, 1961, under the head "Business". Consequent upon this finding, the Tribunal further held that the Appellate Assistant Commissioner was justified in giving a direction to allow development rebate and deduction under section 80J of the Act. The case of the assessee pertaining to the assessment year 1971-72 is the subject-matter of a decision of this court in CIT v. Northern India Iron and Steel Co. Ltd. [1995] 211 ITR 370 one of us (D.K. Jain J.), was a member of the Bench deciding the said case. Following that decision, question No. 1 is answered in the affirmative in favour of the assessee and against the Revenue.
3. Question No. 2 deals with entitlement of the assessee to be granted development rebate and also deduction under section 80J of the Act. In so far as the claim of development rebate is concerned, it is concluded against the assessee in the aforesaid case pertaining to the year 1971-72. Regarding the claim for deduction under section 80J it has been found in the aforesaid cited decision that since the machinery was let out the lessee had control over the use of the machinery and the assessee had no control over its user. Under sub-section (4) of section 80J, one of the conditions which the assessee is required to fulfill for claiming rebate is that it manufactures or produces articles. In view of the aforesaid finding that the assessee had no control over the machinery, the question of grant of rebate under section 80J does not arise because it cannot be said that the assessee manufactures or produces articles. In this view, question No. 2 is answered in the negative, in favour of the Revenue and against the assessee.