Commissioner of Income Tax vs Poyilakada Fisheries Pvt. Ltd.

K.S. Pakipoornan, J.—The Revenue is the petitioner herein. The respondent herein is an assessee to Income Tax. We are concerned with the assessment year 1979-80. The assessee-company is engaged in the purchase and export of processed fish and selling the same. Processing of fish, freezing the same and allied activities are carried on. It is also a dealer in diesel and other lubricants. The assessee put forward the plea that it is entitled to deduction u/s 80J of the Income Tax Act, 1961, on the ground that it is an industrial company. The Income Tax Officer, by order dated August 30, 1982, negatived the said plea. In appeal, the Appellate Assistant Commissioner, by order dated March 19, 1983, upheld the plea of the assessee. In second appeal, the Income Tax Appellate Tribunal, by its order dated November 25, 1985, concurred with the Commissioner of Income Tax (Appeals) by placing reliance on the decision of the Special Bench in the assessee''s own case in I. T. A. No. 35/ (Cochin) of 1982 dated June 12, 1985. Thereafter, the Revenue moved the Appellate Tribunal for referring the question of law formulated in paragraph 7 of the original petition for the decision of this court. The Income Tax Appellate Tribunal declined to accede to the said prayer by order dated April 29, 1987. It held that the matter is covered by the decision of the High Court of Kerala in I. T. R. No. 98 of 1981 dated March 16, 1987 Commissioner of Income Tax Vs. Marwell Sea Foods, ) . It is thereafter that the Revenue has moved this court by filing this original petition u/s 256(2) of the Income Tax Act, 1961.

We heard counsel for the Revenue as also counsel for the respond-ent-assessee. In Commissioner of Income Tax Vs. Marwell Sea Foods, , a Bench of this court held that processing of prawns amounts to production of an article and the business will be an industrial undertaking for the purpose of Section 80HH of the Income Tax Act, 1961. The reasoning which persuaded this court to hold that processing of prawns, etc., will amount to production of an article and so the assessee therein is an industrial undertaking will apply with equal force for the purpose of Section 80J of the Income Tax Act, 1961, also. In this view of the matter, we hold that no referable question of law as formulated in paragraph 7 of the original petition arises for consideration. The ratio of the decision of this court in Commissioner of Income Tax Vs. Marwell Sea Foods, should apply to the instant case as well.

There is no merit in this original petition. It is dismissed.