Mankad, J.@mdashIn these two references, one at the instance of the Revenue and the other at the instance of the assessee, the main question
which arises for our consideration is whether the process of dyeing and printing grey cloth would amount to manufacturing of goods which would
entitle the assessee to claim relief u/s 80J of the Income Tax Act, 1961 (hereinafter referred to as the ""Act"").
2. The assessee is a registered partnership firm. Its year of account is Samvat year and the assessment years under consideration are 1972-73 to
1975-76. The assessee''s business in the years under consideration was to dye and print cloth. The assessee dyed and printed its own cloth and its
customers'' cloth in the assessment year 1973-74, 1974- 75 and 1975-76. In the year of account relevant to the assessment year 1972-73, the
assessee had the business of dyeing and printing cloth of its customers. In other words, in this year it did notdye and print its own cloth. In the
subsequent years, namely 1973-74 to 1975-79, major part of the business of the assessee was to dye and print cloth for customers on a
comparatively small scale. According to the assessee, it manufactures or produces articles and, therefore, it is entitled to relief for the years under
consideration. This claim was allowed by the Income Tax Officer while making assessments for the years under consideration.
3. The Commissioner of Income Tax (""Commissioner""for short) was of the view that the order of the Income Tax officer allowing deduction u/s
80J in the assessment year 1972-73 was prejudicial to the interest of the Revenue. He, therefore, issued notice calling upon the assessee to show
cause why relief granted to it should not be withdrawn. After hearing the assessee, the Commissioner found that in the year of account relevant to
the assessment year 1972-73, the receipt were only in respect of the job work of dyeing and printing of cloth belonging to the assessee''s
customers alone and since the assessee had not purchased cloth on which process of dyeing and printing was done, the assessee''s undertaking
could not be said to be an industrial undertaking within the meaning of section 80J of the Act. In this view of the matter, the Commissioner
withdrew the deduction granted to the assessee u/s 80J for the assessment year 1972-73.
4. The assessment made for the assessment years 1973-74 to 1975-76 were also subjected to revision u/s 263 of the Act. The Commissioner
found that the orders of the Income Tax officer allowing deduction u/s 80J of the Act were prejudicial to the interest of the Revenue. He, therefore,
issued notice calling upon the assessee to show cause why the assessment order should not be revised u/s 263 of the Act. After hearing the
assessee, the Commissioner by his common order dated August 11, 1977, held that, the assessee was not entitled to deduction or relief u/s 80J for
the Years 1973-74 to 1975-76 on the following grounds, namely,(i) the assessee''s undertaking was not an industrial undertaking; (ii) process of
dyeing and printing cloth does not amount to manufacture or production of of articles; (iii) since the assessee who was doing only job work had
later on switched over to dyeing and printing of its own cloth, there was reconstruction of the work already in existence ; (iv) the building and
machinery which had been used in the years 1971-72 and 1972-73 for the business of job-work, were used in the years under consideration, and
therefore, the assessee was not entitled to relief under clause (ii) of sub-section (4) of section 80J; and (v) even if the assessee was entitled to relief
u/s 80J, its undertaking having commenced business in Samvat year 2025, the first year for such relief would be 1070-71, and consequently no
relief was admissible for the assessment year 1975-76. The last ground, as pointed out above, pertains only to the assessment year 1975-76.
5. Being aggrieved by the order of the Commissioner, the assessee carried the matter in appeal before the Income Tax Appellate Tribunal
(""Tribunal"" for short). The Tribunal held that subjecting cloth to process of dyeing and printing would amount to manufacture or production of
articles for the purpose of granting relief u/s 80J. However, according to the Tribunal, so far as assessment year 1972-72 was concerned, the
assessee was a mere contractor since it had subjected cloth belonging to its customers to the process of dyeing and printing. In other words,
according to the Tribunal, since cloth which was subjected to process of dyeing and printing did not belong to the assessee, the assessee was a
mere contractor and not a manufacture of articles. The Tribunal, therefore, held that the Commissioner was right in holding that the assessee did
not fulfil the conditions laid down in section 80J(4) and withdrawing the deduction or relief under the said section for the assessment year 1972-73.
So far as the assessment years 1973-74, 1974-75 and 1975-76 were concerned, the Tribunal found that the the assessee did the business of
dyeing and printing of cloth on its own account as well as for its customers. The Tribunal further found that so far as these years were concerned,
the major part of the assessee''s business was during and printing of its own cloth and minor part of its business was job for its customers. The
Tribunal did not agree with the Commissioner''s finding that there was reconstruction of the undertaking. The Tribunal also did not agree with the
Commissioner that relief u/s 80J was not admissible to the assessee also under clause (ii) of section 80J(4). Which is the last year for relief u/s 80J
is not relevant for our purposes. But we may incidentally mention that the Tribunal found that the first year in which the assessee was entitled to
relief being 1971-72, the assesee was entitled to claim relief in the assessment year 1975-76 also. In other words, it disagreed with the view by the
Commissioner.
6. In view of the finding recorded by the Tribunal, the asssessee was dissatisfied with the decision of the Tribunal holding that it was not entitled to
claim relief u/s 80J for assessment year 1972-73 and Revenue was dissatisfied with the decision of the Tribunal that the assessee was entitled to
such relief for the assessment years 1973-74 to 1975-76. Under the circumstances, the questions as stated below have been referred to us by the
Tribunal u/s 256(1) of the Act at the instance of the assessee and the Revenue :
At the instance of the assessee :
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee was not entitled to relief u/s 80J for
assessment year 1972-73 ?
At the instance of the Revenue :
1. ""Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in holding that the dyeing and
printing by the assessee of its own cloth would amount to manufacturing or production articles so as to qualify for relief u/s 80J(4) ?
2. If the answer to the above question is in the affirmative, whether on the facts and in the circumstances of the cause, the Tribunal was right in
holding that the activities off the assessee would not amount to reconstruction u/s 80J(4)(i) for any of the assessment years (a) 1973-74, (b) 1974-
75 and (c) 1975-76 ?
Relevant provisions of section 80J of the Act on which controversy involved in these two reference centres read as under :
80J(1) Where the gross total income of an assessee includes any Profits and gains derived from an industrial undertaking or a ship or the business
of a hotel, to which this section applies, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the
total income of the assessee, a deduction from such profit and gains (reduced by the aggregate of the deduction, if any, admissible to the assessee
u/s 80H and 80HH) of so much of the amount thereof as does not exceed the amount calculated at the rate of six per cent. per annum on the
capital employed in the industrial undertaking or ship or business of the hotel, as the case may be, computed in the manner specified in sub- section
(1A) in respect of the pervious year relevant to the assessment year (the amount calculated as aforesaid being hereafter,in this section, referred to
as the relevant amount of capital employed during the previous year) : .......
(2) The deduction specified in sub-section (1) shall be allowed in computing the total income in respect of the assessment year relevant to the
previous year in which the industrial undertaking begins to the manufacture or produce article or to operate its could storage plant or plants or the
ship is first brought into use or the business of the hotel start functioning (such assessment year being hereafter, in this section, referred to a the
initial assessment year) and each of the four assessment years immediately succeeding the initial assessment year :
Provided that in the case of an assessee, being a Co-operative society, the provisions of this sub-section shall have effect as if for the words ''four
assessment years'', the words ''six assesssment years'' had been substituted......
(4) This section applies to any industrial undertaking which fulfils all the following conditions, namely :
(i) It is not formed by the splitting up, or the reconstruction, of a business already in existence;
(ii) It is not formed by the transfer to a new business of a building (""not being a building taken on rent or lease) machinery or plant previously used
for any purpose;
(iii) It manufactures or produces articles, or operates one or more cold storage plant or plants, in any part of India, and has begun or begins to
manufacture or produce articles or to operate such plant or plants, at any time within the period of twenty-eight years next following the 1st day of
April, 1948, or such further period as the Central Government may, by notification in the official Gazette, specify with reference to any particular
industrial undertaking;
(iv) in a case where the industrial undertaking manufactures or produce articles, the undertaking employs ten or more workers in a manufacturing
process carried on with the aid of power, or employs twenty or more workers in a manufacturing process carried in without the aid of power ?
7. The contention of the assessee is that it derived profits and gains from an industrial undertaking is to subject grey cloth to the process of dyeing
and printing. The grey cloth which is the material it uses is transformed into a new article after it is subjected to the process of dyeing and printing
and, therefore, the activity which it carries on is a manufacturing activity. It is submitted that it is immaterial whether the grey cloth which is
subjected to process of dyeing and printing belongs to the assessee or some one else. What is important to find out is whether the profits and gains
which are included in the assessee''s total income are derived from an industrial undertaking in which article or articles are manufactured or
produced. The ownership of raw material or furnished goods according to the assessee is immaterial or of no consequence for giving benefit of
deduction admissible u/s 80J. Once it is established that the assessee has derived profits and gains out of an industrial undertaking in which articles
are manufactured or produced, the assessee is entitled to relief or deduction u/s 80J. The Tribunal, it was submitted, was, therefore, wrong in
denying the relief to the assessee for the assessment year 1972-73. On the other hand, it is contended on behalf of the Revenue that the
undertaking of the assessee is not an industrial undertaking, and in any case, no articles are manufactured or produced in this undertaking.
Therefore, the essential conditions laid down in section 80J for seeking the said relief are not satisfied, and consequently the assessee is not entitled
to claim relief for any of the years under consideration. It is further submitted that even assuming for the sake of argument that the activity which is
carried on by the assessee in its undertaking is manufacturing activity, it is not entitled to any relief since there is reconstruction of the business
already in existence and the machinery which was previously used is now sought to be used for the business which has been reconstructed. It is
submitted that the assessee was originally doing only job work in its undertaking. The job work consisted of subjecting grey cloth belonging to its
customers to the process of dyeing and printing. Later on, the assessee started subjecting grey cloth belonging to itself to the process of dyeing and
printing. Thus, there was reconstruction of the business already in existence. It is further submitted that building and machinery which the assessee
used for job work was now being used for its own business. Under the circumstances, the conditions laid down in clauses (i) and (ii) of section
80J(4) were not satisfied and consequently the assessee was not entitled to relief u/s 80J.
8. In order to claim relief u/s 80J, amongst other things, the assessee must prove : (i) that the undertaking is an industrial undertaking; (ii) that such
undertaking is not formed by reconstruction of business already in existence; (iii) that is not formed by transfer to a new business of machinery or
plant previously used for any purpose; and (iv) that it manufactures or produces articles. It is not necessary to set out other conditions necessary
for claiming relief u/s 80J since they are not relevant for our purpose. The question which we have to consider is whether the undertaking of the
assessee is an industrial undertaking and whether any articles are manufactured or produced therein. Industrial undertaking has not been defined in
the Act. As held by the Supreme Court in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, , the word ""industry"" has a
wide import. It was held that where there is (i) systematic activity, (ii) organised by co-operation between employer and employee (the direct and
substantial element is chimerical), (iii) for the production and/or 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, praised or food), prima
facie there is an ""industry"" in that enterprise. It was further observed that the true focus is function and the decisive test is the nature of the activity
with special emphasis on the employer-employee relations. Applying the test laid down by the Supreme Court, it must be held that the activity
which is carried on by the assessee is an industry and consequently, its undertaking is an industrial undertaking.
9. Before we go to the main question whether the assessee manufactures or produces articles in its said industrial undertaking, we will dispose of
two contentions which are raised on behalf of the Revenue in the context of clauses (i) and (ii) of section 80J(4). As pointed out above, one of the
contentions raised on behalf of the Revenue is that the undertaking of the assessee was formed by reconstruction of business already in existence.
It is further contended that the building and machinery which were used for business are transferred to the new business. According to the
Revenue, the assessee was earlier doing job work by subjecting grey cloth belonging to its customers to the process of dyeing and printing and
now its main business is to subject grey cloth belonging to itself to the process of dyeing and printing. There is, therefore, reconstruction of existing
business and it also establishes that the building and machinery which were used for job work are now being used for processing the assessee''s
own cloth. There is no substance in this contention. There is no change in the activity carried on by the assessee. It is doing the same activity,
namely, of subjecting grey cloth to the process of dyeing and printing. Whether the grey cloth belongs to the assessee or not does not change the
nature of its activity. There is, therefore, neither reconstruction of a business already in existence, nor transfer to any new business of building and
machinery previously used for any other purpose. The assessee is doing the same business as it was previously doing, namely, of subjecting grey
cloth to the process of dyeing and printing. We, therefore, reject the Revenue''s contention that conditions laid down in clauses (i) and (ii) of sub-
section (4) of section 80J are not fulfilled.
10. Now, the main question which we have to decide is whether the assessee manufactures or produces articles in its industrial undertaking. In
other words, can the assessee be said to be manufacturing or producing articles when when it subjects the grey cloth to the process of dyeing and
printing. Expressions ""manufactures"" or ""produces"" occurring in clause (iii) of sub-section (4) of section 80J have not been defined in the Act or
section 80J, which means that the legislature has not chosen to give to these expressions any technical or artificial meaning and has intended to give
them the ordinary meaning as understood in common parlance. However, the expression ""manufacture"" or ""processing of goods"" or ""manufacturing
process"" have been the subject matter of a number of decisions thought not in the context of section 80J of the Act but in the context of various
Sales Tax Acts prevalent in different States in India, section 23A of the Indian Income Tax Act, 1922 (""Act of 1922"" for short) and Central Excise
and Salt Act, 1944. It is not necessary to refer to these decisions since they have been considered in detail by this court in Commissioner of
Income Tax, Gujarat Vs. Ajay Printery Private Ltd., in the context of section 23A of the Act of 1922, and the Supreme Court in Empire Industries
Limited and Others Vs. Union of India and Others, , in the context of section 2(f) of the Central Excises and Salt Act. In the case of Commissioner
of Income Tax, Gujarat Vs. Ajay Printery Private Ltd., the question which arose before the Division Bench of this court was whether the business
of printing balance-sheets, profit and loss accounts, dividend warrants, pamphlets, share certificates, etc., required by the companies is a business
which consists wholly of ""manufacture of goods"" within the meaning of clause (iv) of Explanation to section 23A of the Act of 1922. It was in the
context of the above expression used in section 23A of the Act of 1922 that this court considered as to what meaning should be attributed to the
words ""manufacture"" or ""processing of goods"". These words or expressions were not defined in the Act of 1922 or section 23A thereof. This
court, after referring to various decisions and the dictionary meanings of the word ""manufacture"", went on to observe as follows (at pages 819 and
820) :
In the present case, whether we adopt the limited or the larger meaning given by the courts to the word ""manufacture"", that is to say, whether it is
necessary or not that the raw materials must be converted into a new commodity or an article wherein the raw materials are merged and lose their
identity, would not make any difference to the facts of the present case. To take the illustration given by Das J. in the Calcutta case (North Bengal
Stores Ltd. v. Board of Revenue, Bengal 1938 50 1 STC 157 of the dispensing chemist, when a goldsmith makes an ornament out of a lump of
gold, he does in reality manufacture an article which has a separate entity and a separate use. When the chemist in that case dispensed a
prescription and sold the mixture to his customers, he produced a separate article, though that article was composed of several drugs and it did not
matter whether those several drugs in that mixture lost their separate identity or not. Thought the drugs remained the same, a mixture of them
produced an article which was different and had, and was meant to have, a different use. Therefore, whether the original materials retained their
identity or not, the goldsmith and the chemist produced articles in respect of which they had obtained orders from their respective customers. We
also fail to see any substantial difference between a manufacturer of textile goods and a persons who carries on business of printing and preparing
books, pamphlets, balance-sheets, etc. When a piece of cloth is manufactured, its maker produces a distinct article having a distinct use as
distinguished form the cotton or the yarn though cotton and yarn are still subsisting. Similarly, when a printer prints a book or a journal or a
pamphlet or a balance-sheet, his basic raw materials are paper and ink with which he, either by hand or by the aid of machinery, products a
distinct article. No one would say when he sells a book or supplies to his customers pamphlets or balance-sheets that the order which the
customer had placed with him was an order for ink and paper, or that the printer, when he accepted that order, accepted order for supplying
paper and ink. The order was for the supply and sale of the pamphlet or the balance-sheet or share certificates, a commodity or an article quite
different from the raw materials from which it is made and the use of which would be different form the use of the raw materials used in producing
it. Even if the limited construction of the word ""manufacture"" were to be adopted, i.e., transformation and conversion of the material into a different
commodity, the raw materials losing their identity, the article produced would still be an article totally different from the materials, namely, paper
and ink, which are consumed in making it. The paper and ink which are used in the process of making pamphlets, balance-sheets or books, by
themselves would be of no value be of no value and cannot have apart from the contents a realisable value if sole as such materials. When they are
used the only commodity which would have any commercial value would be the finished product, namely, the balance-sheet or the profit and loss
account, the share certificate, the pamphlet, etc."".
11. In Empire Industries Limited and Others Vs. Union of India and Others, , the petitioner company was an independent processing unit carrying
on its activities at Bombay and as an independent processing unit was engaged in job activities of dyeing and printing and finishing man-
made/cotton fabrics. It was contended by the petitioner that the processing operation of the petitioner company are job work operation of dyeing,
bleaching and printing of said fabrics which are of cotton yarn and man-made fibres. It was its case that it begins with man-made or cotton fabrics
before it starts the said processes and also ends with man-made or cotton fabrics after subjecting the fabrics to the various processes. It was
contended that the petitioner company received fully manufactured man-made fabrics and cotton fabrics from its customers only for the purpose of
carrying out one or more of the aforesaid processes thereon as per the requirement and instruction of the customers, and after necessary processes
were carried out, the same were returned to the customers. According to the petitioner company what was received by it was known as cotton-
man-made fabric and what was returned was again known as cotton-man-made fabric. It was in the context of the above facts that the Supreme
Court considered the meaning of the expression ""manufacturing process"" and ""manufacture"" used in section 2(f) of the Central Excises and Salt
Act, 1944. After considering various decisions, the Supreme Court held that to constitute manufacture, it is not necessary that one should
absolutely make out a new things because it is well-settled that one cannot absolutely make a thing by hand in the sense that nobody can create
matter by hand, it is the transformation of matter into something else and that something else is a question of degree, whether that something else is
a different commercial commodity having its distinct character, use and name and commercially known as such. In other words, if by application of
labour and skin an object is transformed to the extent that it is commercially known differently, it will suffice to say that manufacture has taken
place for the purpose of central excise. The degrees of transformation and labour and skill spent are irrelevant. Therefore, the question whether a
particular process is a process of manufacture or not, has to be determined naturally having regard to the facts and circumstances of each case and
having regard to the well-known test laid down by the Supreme Court in various decisions. It was further observed that the word ""produce
appearing in entry 84 of List I of Seventh Schedule to the Constitution is used in juxtaposition with the word ""manufacture"" and used in connection
with the duties of excise which contemplates some expenditure of human skill and labour in bringing the goods concerned into a condition which
would attract the duty. It is not required that the goods would be manufactured in the sense that raw material should be used to turn our something
altogether different. It would still require that these should be produced in the sense that some human activity and energy should be subjected to
some processes in order that these might be brought to the state in which they might become fit for consumption. Therefore, the transformation of a
product to the extent that it becomes a commercially different commodity is sufficient to attract levy of excise duty. The taxable event for central
excise, it was observed, is the manufacture of accessible goods and the moment there is a transformation into a new commodity having its own
character, use and name, whether be it the result of one process or several processes, ""manufacture"" takes place and liability to duty is attracted.
The sale or ownership of the end-product is absolutely irrelevant for the purpose of taxable event under the central excise.
12. We may now refer to the dictionary meanings of the word ""manufacture"", which have been referred to in the decision of this court in
Commissioner of Income Tax, Gujarat Vs. Ajay Printery Private Ltd., . The dictionary meanings also point out that the meaning to be attributed to
the word ""manufacture"" would be to work up materials into forms for use, making of articles or materials by physical labour or mechanical power
and making of goods by hand or by machinery often on large scale by division of labour. In Black''s Law Dictionary, the meaning given to the
word ""manufacture"" is the process or operation of making wares or any material produced by hand, by machinery or by other agency; anything
made from raw materials by the hand, by machinery or by art. It also states that the production of articles for use from raw or prepared materials
by giving such materials new forms, qualities, properties or combinations, whether by hand labour or machine, would be ""manufacture"". When the
assessee subjects grey cloth to the process of dyeing and printing, it makes or produces distinct article having a distinct use as distinguished from
the grey cloth though grey cloth is still subsisting. As a result of the process to which grey cloth is subjected to, there is transformation of grey cloth
into a new commodity commercially known as a distinct and separate commodity having its own character, use and name. Transformation of grey
cloth to the extent that ir becomes a commercially different commodity is sufficient to hold that there is manufacture or production of article within
the meaning of clause (iii) of sub-section (4) of section 80J of the Act. In our opinion, applying the test laid down by the Supreme Court in Empire
Industries Limited and Others Vs. Union of India and Others, and this court in Commissioner of Income Tax, Gujarat Vs. Ajay Printery Private
Ltd., and keeping in mind the dictionary meaning of the word ""manufacture"", we have no hesitation in holding that when assessee subjects grey
cloth, whether belonging to itself or its customers, to the process of dyeing and printing, it manufactures or produces an article which is distinct
from grey cloth which is used as a raw material. It is immaterial whether the grey cloth which is subjected to process of dyeing and printing belongs
to the assessee or anyone else. The activity which the assessee carries on is manufacturing activity irrespective of the fact whether the grey cloth
belongs to it or to its customers. We, therefore, hold that the condition laid down in clause (iii) of section 80J(4) is also satisfied in the case of the
assessee.
13. No other ground is urged on behalf of the Revenue which would disentitle the assessee from claiming relief u/s 80J.
14. In the result, we answer the question referred to us at the instance of the assessee in Income Tax Reference No. 397 of 1980 in the negative
and against the Revenue. We answer both the questions referred to us at the instance of the Revenue in Income Tax Reference No. 197 of 1980 in
the affirmative and against the Revenue.
15. References answered accordingly with no order as to costs.
16. A copy of this judgment should be sent under the seal of this court and under the signature of the Registrar to the Income Tax Appellate
Tribunal, Ahmedabad Bench, Ahmedabad.