1. This case pertains to asst. yr. 1980-81. The assessee is a doctor and is specialist of radiology. He also operates an x-ray clinic of his own where the x-ray films are also exposed of the patients for which charges are required to be paid by the persons coming there. From the profit and loss account it is apparent that the assessee has shown the charges received from customers for exposing x-ray films as "x-ray revenue" by deducting the total expenditure including the raw-films, other materials, salary and emoluments paid to staff and other expenses in connection with the running of the clinic, including interest on loans etc. It has not been shown as an income from fees. The assessee had, during that year purchased an x-ray machine. Apart from claiming depreciation thereon, the assessee also claimed investment allowance on the cost of acquisition of that x-ray machine under s. 32A of the IT Act, 1961, as it stood at the relevant time. The ITO was of the view that s. 32A reveals that for allowing deduction on account of investment allowance, three preliminary conditions are must namely (1) plant and machinery should be used in industrial undertakings, (2) it should be manufacturing some article and (3) item manufactured should not be listed in relevant schedule. He further came to the conclusion that nursing home of a radiologist cannot be treated as an industrial undertaking and it does not produce anything and therefore, it does not fulfil the conditions Nos. 1 and 2 and rejected the assessee's claim. This view of the ITO was affirmed by the CIT(A) on appeal. On further appeal before the Tribunal the assessee brought to the notice of the Tribunal another decision of the Nagpur Bench of the Tribunal and a decision of the Madras High Court in CIT vs. Dr. V. K. Ramachandran (1981) 128 ITR 727 (Mad) for the purpose of showing that another Bench of the Tribunal has held the exposed x-ray film as a manufactured article entitling investment allowance by fulfilling the second condition and the Madras High Court has taken the view that a medical practitioner practicing and purchasing an x-ray machine is entitled to development rebate under s. 33. The Tribunal apparently, as it appears from the order, did not decide the issue of allowability of investment allowance on investment in x-ray machine, took into consideration arguments advanced by the learned Departmental Representative for the first time before the Tribunal that investment allowance can be claimed only in respect of business activity and not in respect of professional activity. The decision of the Gujarat High Court in CIT vs. Dr. K. K. Shah (1982) 135 ITR 146 (Guj) was also relied upon.

2. The two-fold questions that are embraced in the question referred to us are, firstly whether the ITO and CIT(A) were right in holding that two conditions namely that the assessee is not an industrial undertaking and is not manufacturing anything inasmuch as no new commercial productions come out in the form of exposed x-ray films to fall within the meaning of manufacture though raised before the Tribunal but were not decided by it and secondly that the assessee is not carrying on business, but carrying on profession.

3. So far as the first question is concerned whether the assessee is engaged in manufacturing or producing any article or thing by operating x-ray machine is concerned or not, in our opinion, the Revenue was not right in taking the view that it does not result in any manufacturing process. The basic premise on which it was held by the Revenue authorities that the x-ray machine does not produce any thing or article in the sense as used in s. 32A was that photograph taken of parts of body through x-ray machine are not saleable in open market to anyone else and therefore, it does not result in production of any commercial article.

It cannot be doubted that the photographs of various parts of the body obtained by an x-ray machine are the resultant product of work of activity and they are the end results of efforts and activities carried on with the machine by human endeavour and give result in black and white regarding the internal position of the parts of the body on the exposed film and this end-result is helpful for the proper and efficient diagnosis of the patient. The photographs or the graphs obtained from x-ray machine which are the result of human efforts and activity, therefore, cannot but be a thing produced by the use of x-ray machine. It is also to be noticed that in order to treat a product to be saleable it need not be a product saleable in open market for use of general people. A thing may be produced for being sold to a particular person or for the use of a particular person. In that sense if we look at the activity it is clear that after producing the photograph of internal part of the body of the person concerned, money is charged from that patient recovering the cost of such production and the profit which the producer of that photograph desires to obtain out of it. It is not the requirement of the provision nor it can be read in the context of the provision that in order to fulfil the condition that a machinery or plant must have been installed in an industrial undertaking for the purpose of manufacturing or production of any article or thing must be related to production of such article or thing which is saleable in open market as a common marketable commodity only. We are therefore, of the opinion that so far satisfaction of this condition is concerned that x-ray plant in question was not a machinery or plant through which any article or thing could be produced for sale stands satisfied.

4. In our this conclusion we are fortified by a decision of Rajasthan High Court in CIT vs. Trinity Hospital (1996) 87 Taxman 127 (Raj), wherein, after referring to a large number of decisions and examining the dictionary meaning of "manufacture", "production", "produce", "article" and "things", it was opined that the photographs of various parts of the body obtained by these machines are the resultant product of the work or activity. They are the end result of efforts and activities and give result in black and white regarding the internal position of the parts of the body and are helpful for the proper and efficient diagnosis. The photographs or the graphs obtained from these machines, which are the result of efforts or activity, therefore, can be said to be a 'thing' as used in s. 32A.

We are in respectful agreement with the conclusions and the reasons stated therein.

5. The next question that arises for our consideration in this regard is whether the assessee can be treated to be an industrial undertaking and whether it carries on a business. We find from the orders of the Tribunal as well as the lower authorities that the Revenue authorities have sought to decide this issue on abstract principle whether a doctor can be said to be a professional or a businessman without making an effort to reach necessary conclusions of fact in this regard. The primary ground for holding that the assessee in the present case cannot be said to carry on business is on the basis of decision of this Court in CIT vs. Dr. K. K. Shah (supra). In the case of Dr. K. K. Shah, the question which this Court was called upon to decide was whether provisions of s. 64, sub-s. (1)(i) of the 1961 Act applied to a case where the firm of doctors was carrying on profession as distinct from carrying on business. This Court by adverting to legislative history of the said provision drew a distinction between the concept of business and profession for the purposes of s. 64. By noticing that in the Act of 1922 under s. 16(3A)(i) which envisaged clubbing of income of the wife with the income of husband, provided that such clubbing would take place when the income of the wife was derived directly or indirectly from a firm of which her husband was a partner. Mere membership in the firm in which husband was also a partner, on the part of wife attracted the provision. Making a departure from this wide provision, in the 1961 Act, the expression membership in a firm has been replaced by membership in a firm carrying on business. Noticing this vital difference which legislature has brought about in enacting new provision replacing the old one, the Court came to the conclusion that expression business has been employed by the legislature in order to emphasise the distinction between a business and a profession for the purposes of that provision. Thereafter, Their Lordships after looking to the object of the provision further concluded

"the rison detra for clubbing together the income of non-professionals does not exist in the case of professionals"

. However, the matter was not left at that. It was not held as a matter of abstract proposition of law that a doctor who is a professional by qualification or a firm of doctors cannot be said in any circumstances to be carrying on a business. The final conclusions reached by their Lordships are reproduced hereinbelow :

"We are, therefore, of the opinion that when professional couples such as a doctor-husband and a doctor-wife or a lawyer-husband and a lawyer-wife or an architect-husband and an architect-wife form a partnership for the purpose of carrying on a professional activity which would fall within the scope of the interpretation in Dr. Devendra Surti's case AIR 1969 SC 63, their income is not liable to be clubbed together under s. 64(1)(i). We would, however, add the following riders :

(1) if a doctor-husband and a doctor-wife are also carrying on the activity of a nursing home in the context of their professional activity for the purpose of treating their own patients, the income from the nursing home can be treated as the professional income of the professional couple and no question of clubbing together can arise.

(2) If any business activity is carried on by a firm constituted by the doctor-husband or doctor-wife such as of running a drug store for selling drugs to the patients or to others, the income from such activity can be clubbed together. Such income will not be exempt from being clubbed together merely because it is an activity which is adjunct to the main professional activity. Similarly, when a doctor-couple carries on the nursing home activity by admitting patients of other doctors and charging fees such as room fees or fees for services rendered to them, it may amount to a business activity carried on by the firm and that part of the income can be clubbed together.

(3) Merely because a part of the activity is professional activity, the assessee cannot escape the clutches of the clubbing provision even in respect of its income which can be said to be an income arising in the context of his business activities as distinguished from professional activities. Accordingly, we decide the group of references and the group of income-tax applications in the following manner."

From the aforesaid it can clearly be noticed that merely because a person happens to be professionally qualified doctor, it cannot be said that such persons's activity cannot be treated as an activity of carrying on business. This Court nowhere said that in every case where the question arises whether an activity carried on by doctor can be treated as an activity of business or an activity of profession it could be decided without considering the various other aspects determining the question whether a person is carrying on business or profession for the purposes of the provision with which such question arises.

6. In Devendra Surti's case (supra) the question was about meaning of a commercial establishment within the meaning of Bombay Shops and Establishments Act, 1948. The Court was concerned with the issue whether a private dispensary of a doctor can be treated to be a commercial establishment so as to be subjected to the provisions of the said Act. It may be noticed that, that was a case arising in the context of authority of inspector appointed under the Commercial Shops and Establishments Act, to visit the commercial establishments, find necessary details about the requirement of records concerned of the employees etc. and whether any breach of the rules and regulations under the said Act has been committed by the owner of the establishment. Though in that connection Their Lordships were of the opinion that ordinarily an establishment like a private dispensary run by a doctor cannot be treated to be a shop and commercial establishment, nonetheless possibility of a profession being carried on as a business and falling into that category was not ruled out. Their Lordships observed that :

"there is a fundamental distinction, therefore, between a professional activity and an activity of a commercial character and unless the profession carried on by the appellant also partakes of the character of a commercial nature, the appellant cannot fall within the ambit of s. 294 of the Act."

The aforesaid observation by Their Lordships states in no unmistakable terms that a professional activity can also be characterised as an activity of carrying on business if it is carried on like a commercial activity.

7. It was vehemently urged by Mr. Divetia, the learned counsel for the assessee, that since the decision of Dr. Surti's case (supra) the controversy has been set at rest by the Supreme Court in Bangalore Water Supply & Sewerage Board vs. A. Rajappa AIR 1978 SC 549 where in the context of finding out the meaning of 'industry' under s. 2(j) of the Industrial Disputes Act, Their Lordships said "where there is systematic activity organised by co-operation between employer and employee (the direct and substantial element is chimerical) for the production and distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale, prasad or food), prima facie, there is an "industry" in that enterprise. Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector."

It may be noticed that while deciding the cases of Dr. Surti as well as Bangalore Water Supply, the emphasise to find out the meaning of industry was with a special reference to employer-employee relations and not with reference to industry as it is understood in any common parlance of meaning. Nonetheless, one factor which is common to both the decisions referred to above was that it must relate to production and/or distribution of goods and services calculated to satisfy human wants and wishes. Therefore, though the wide definition of industry in the context of employer-employee relation under the various industrial laws may not be applicable to the meaning of industrial undertaking under the IT Act, as the expression used in the context in which the provisions are set, the meaning of industrial undertaking in the set up of IT Act takes its colour from the activity for which new plant or machinery is set up. The activity is of production of any article or thing. Therefore, any activity which primarily concerns with the production of any article or thing would fall in the category of industrial undertaking for that purpose; may be that activities carried on by a trader or any person carrying on any business or profession. The primary object of the provisions of s. 32A is that a person carrying on business if he installs a new machinery or plant in any relevant previous year is entitled to claim a part of cost as deduction as investment allowance, provided such plant and machinery is used by him in manufacture or production of any article or thing or in an activity of construction. The decision in K. K. Shah's case (supra) does not detract from the aforesaid principle. In this connection, we are amused to notice that while the Revenue authorities have sought to distinguish the decision of Madras High Court in (1981) 128 ITR 727 (Mad) (supra) and Dr. P. Vadamalayan vs. CIT (1969) 74 ITR 94 (Mad) on the ground that those cases deal with the development rebate under s. 33 and are distinguishable, yet have applied the decision of Dr. K. K. Shah without trying to gather the facts and without noticing that even Dr. K. K. Shah's decision was not interpreting s. 32A of the Act with which we are concerned, but was in altogether different context of s. 64 relating to the clubbing of income of the spouses who are members of the same firm. The object of the said provision was entirely different. On the other hand by reading the provision relating to depreciation, investment allowance and development rebate as far as the aspect of carrying on business in that regard is concerned, we are of the opinion that the distinction found by the Revenue authorities on the basis of claim for development rebate and investment allowance is a distinction without substance. So far as the question of giving meaning to the expression 'carrying on business' is concerned, s. 32 deals with allowing depreciation as deduction. The expression used is in respect of depreciation of buildings, machinery, plant or furniture owned by the assessee and used for the purpose of business or profession. Section 33 was a provision in the Act from inception, prior to the provisions for investment allowance was made. The expression used is 'in respect of a new ship or new machinery or plant other than office appliances or road transport vehicles, which is owned by the assessee and is wholly used for the purposes of the business carried on by him..." Section 32A was inserted by Finance Act, 1976 replacing the development rebate for the time being. We are not referring to subsequent history as the same is not relevant for the present purposes.

8. From the aforesaid provisions, a clear omission of expression "profession" used in s. 32, from ss. 33 and 32A, can be noticed. Therefore, to this extent the Revenue is right in its submission that as income from business, profession and vocation is being charged under the same Act for the purposes of investment allowance under s. 32A or for that matter for development rebate under s. 33, the same are not used in a generic sense of a regular activity of earning income simpliciter and in each case where a claim for investment allowance or development rebate is to be made, its primary condition is that assessee must be carrying on a business as distinct from profession. If he is carrying on business, then the question of a new machinery or plant being installed for the purpose of manufacture or production of an article or thing giving the establishment a colour of industrial undertaking would arise, but unless it is found whether the assessee is carrying on a business as distinct from profession the further questions would not arise. However, the test of whether a person is carrying on a business or the profession for the purposes of ss. 33 and 32A cannot be different. We are, therefore, of the opinion that decision of Madras High Court referred to by the Revenue authorities and sought to be distinguished, cannot be distinguished on the ground that they are given in the context of s. 32 and cannot govern the interpretation of s. 32A.

9. In CIT vs. Dr. V. K. Ramachandran (supra), it was contended by the Revenue that there being a dichotomy between the business and a profession as the two expressions have been separately used in s. 28, they must be held two distinct activities. The Court rejected the contention and said "we consider that this argument does not take him any far. It is possible for a professional man to have a business or for a business man to have a profession. Therefore, what we have to consider is the nature of the activity rather than any abstract construction of the term "business" or "profession". In saying so, Their Lordships placed reliance in Dr. P. Vadamalayan vs. CIT (supra), wherein it was said once it is found that in an individual's professional activity there is inhered in it a trading or business concept as well and is also owned as such by the person, then the conclusion is irresistible that the totality of the vocation has to gain the statutory allowance of development rebate.

Giving, therefore, a wide connotation to the word "business", we are of the view that if activity, though garbed as profession, is really commercial or, in any event, if the vocation of the assessee is an admixture of both, then the assessee would be entitled to relief for development rebate as claimed."

10. We are of the opinion that this principle equally applies to the claim for deduction on account of investment allowance. We also find that this interpretation of considering an activity whether it is an activity of carrying on a trade or carrying on profession is not at variance with the view expressed by the Gujarat High Court in K. K. Shah's case (supra). Both the decisions lay emphasis on the fact to find out the real nature of the activity in the context of the provisions which are to be applied to the given case and such exercise cannot be obviated with reference to abstract principle of law whether a doctor can be said to be carrying on a business or profession.

11. The Tribunal in its order has recorded its conclusion in the following terms :

"The words underlined show that the Gujarat High Court did not rule out the possibility of treating the professional activity as commercial activity. However, it has not laid down any criterion to decide in what circumstances the activity could be termed as commercial activity.

We are, therefore, left only with the test that where skill is applied, the activity is professional.

The Hon'ble Gujarat High Court may in its greater wisdom consider the above aspect regarding the volume, extent and nature of the activity for deciding the question of professional or business activity, should an opportunity be presented to it. We, however, in this position must bow in deference to the said decision of the Gujarat High Court and accordingly hold that the activities of the assessee are not business but professional activities and that, therefore, he is not entitled to the development rebate claimed by him."

From the aforesaid it is abundantly clear that while holding that the Gujarat High Court did not rule out the professional activity as commercial activity, it abdicated its obligation to dwell on and decide this basic fact. The Tribunal instead of deciding that issue by examining the facts after giving opportunity to the assessee, if necessary, facts were not on the record for the simple reason that this question had not been considered by the lower authorities, but jumped to conclusion with reference to decision of the Gujarat High Court in K. K. Shah's case (supra) that assessee was carrying on profession and the question whether in the facts and circumstances of present case assessee was carrying on business if occasion so arises. This is, in our opinion, an obligation of its duty to decide the question of facts by the final fact finding authority. In the absence of basic facts having been found by the Tribunal, we are unable to decide this question on abstract principles of law and, therefore, we decline to do so and leave it for the Tribunal to decide when it disposes of the appeal before it under s. 260 of the it act after the matter goes back to it, keeping the observations made above.

12. We may also notice here that the learned counsel for the Revenue sought to support the disallowance of investment allowance on the ground that x-ray machines are nothing but photographic apparatus and fall under entry 10 of the 11th Schedule giving the list of ineligible goods for the benefit of deduction of any sum on account of investment allowance. This has not been the contention of the Revenue at any stage of the proceedings. It being an independent and separate condition of allowing deduction as investment allowance cannot be said to be just another aspect of the question arising out of Tribunal's order and referred to us. We, therefore, are of the opinion that this question does not arise out of the order of the Tribunal, which alone can be the subject-matter of question that may be referred to High Court and which can be answered by the High Court. It being a totally new question of fact as well as of law, we decline to entertain it here. However, if the question is raised before the Tribunal when the appeal is again heard by it after return of reference, the Tribunal may entertain this question if it is permissible to be raised at that stage under law.

13. Reference accordingly stands disposed of with no order as to costs.