JUDGMENT
1. At the instance of the Revenue, the Income-tax Appellate Tribunal referred the following question relating to the assessment year 1975-76 under Section 256(1) of the Income-tax Act, 1961 (briefly, the Act), for the opinion of this court :
"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee was entitled to the deduction under Section 80J on the capital employed in the two new chambers added to the existing cold storage ?"
2. The facts, as found by the Appellate Tribunal, are that the assessee, a registered firm, constructed additional chambers to its existing cold storage and claimed before the Income-tax Officer that the said additional chambers constituted "new industrial undertaking" and, therefore, on the capital employed in the new industrial undertaking, deduction as envisaged under Section 80J of the Act, be allowed.
3. The Income-tax Officer, however, took the view that there was only one electric connection for both the cold storage and the additional two chambers, which were claimed to be new industrial undertaking. The Income-tax Officer, therefore, did not allow the assessee's claim for deduction under Section 80J on the capital employed in the two additional chambers.
4. The assessee, however, claimed that there were two separate electric connections and power meters for the existing cold storage and the two newly constructed additional chambers.
5. The Commissioner of Income-tax (Appeals) called for a remand report from the Income-tax Officer. The Income-tax Officer while submitting the remand report, conceded "that the existing cold storage and the two additional chambers which were claimed to be a newly established industrial undertaking were fed by two separate power meters." This is how the controversy whether the two additional chambers constituted a new industrial undertaking or not, came to an end.
6. The Income-tax Officer, however, mentioned in the remand report that from Form No. 12 prescribed for the industrial undertaking "it could not be ascertained and established that the number of persons employed in the so called newly established (sic--industrial undertaking) was 10 or more." The Income-tax Officer was, therefore, of the view that since the conditions laid down in Clause (iv) to Sub-section (4) of Section 80J was not fulfilled in the case and, therefore, deduction under Section 80) could not have been allowed in respect of the two newly added chambers.
7. The Commissioner of Income-tax (Appeals) on a perusal of the remand report held that "the requirement of 10 or more persons being employed in the nev/ly established industrial undertaking applied to only those industrial undertakings, which manufacture or produce articles and not a cold storage." He, therefore, held that the claim of deduction under Section 80) on the capital employed in regard to the two additional chambers of the cold storage was admissible. On further appeal, the Appellate Tribunal affirmed the order of the Commissioner of Income-tax (Appeals).
8. Clause (iv) to Sub-section (4) of Section 80) clearly states that Section 80) applies to any industrial undertaking which, inter alia, in a case where the industrial undertaking manufactures or produces articles, employs 10 or more workers in a manufacturing process carried on with the aid of power. The assessee industrial undertaking is obviously not engaged in the manufacture or production of any article, inasmuch as it simply operates the cold storage, and therefore, the requisite condition as laid down in Clause (iv), is not required to be complied with by the assessee undertaking.
9. We, therefore, answer the aforementioned question in the affirmative, that is, in favour of the assessee and against the Revenue.