IN THE ITAT AHMEDABAD BENCH ‘A’
Deepkiran Foods (P.) Ltd.
Assistant Commissioner of Income-tax
IT Appeal No. 1451(Ahd.) of 2012
[Assessment year 2008-09]
December 14, 2012
Anil Chaturvedi, Accountant Member
This is assessee’s appeal directed against the order of the Commissioner of Income Tax (Appeals)-6, Ahmedabad for the assessment year 2008-2009.
2. The grounds raised by the assessee are as under:
1. The learned CIT(A) has erred in holding that the assessee is not a manufacturer and thereby has erred in rejecting the claim of deduction of profit of Rs. 4,66,46,264 under Section 1OB in as much as the assesses is a manufacturer and is entitled to deduction under Section 10B though it is held that the assessee is industrial undertaking [Second Para from bottom on Page No.8 of CIT(A) Order].
1.1 The appellant says and submits that the assessee manufactures eatables from raw material and that it is separate and distinct product known in the market and is covered by definition of Section 2(29BA).
1.2 The learned CIT(A) misapplied the apex court decision in case of Indian Hotels Ltd. v. ITO 245 ITR 538 SC in as much as the observation of the SC that the preparation of foodstuff or eatable from raw material is not manufacture is with reference to holding that the hotel business is a trading business and that the hotel cannot manufacture and that it was specifically held that industrial undertaking can manufacture.
1.3 Though the learned CIT(A) held that the assesses is industrial undertaking but erred in holding that the assessee is not manufacturer by wrongly following the apex court decision in case of Indian Hotels Ltd. v. ITO 245 ITR 538 (SC).
3. Later on Assessee raised additional ground vide letter 24.8.2012 which reads as under:
“The ld. CIT(A) erred in holding that the following income is not derived from 100% EOU and therefore is not eligible for deduction under Section 10B.
Export Incentives of Rs. 13,45,953 Interest
Income of Rs. 2,70,125″
4. The effective ground raised in the grounds of the appeal of the assessee is regarding rejection of the claim of deduction of profit of Rs. 4,66,46,264/- under Section 10B.
5. Assessee is a 100% Export Oriented Unit (EOU) engaged in the business of manufacturing of frozen and processed food products like paratha, samosa, dhokla, idli, dahi vada, fried bhindi pani puri, mint chutney etc.. It filed its return of income electronically on 24.9.2008 declaring total income at Rs. Nil after claiming deduction u/s.10B. The case was selected for scrutiny.
6. During the course of assessment proceedings, the AO observed that assessee has claimed deduction u/s 10B. AO was of the view that preparation of eatable items by the assessee in its mechanised kitchen does not amount to manufacturing or processing and therefore it was not eligible for deduction u/s 10B. The AO relied on the decision of the Apex Court in the case of CIT v. Relish Foods  237 ITR 59 and Indian Hotels Co. Ltd. v. ITO  245 ITR 538. He accordingly issued show cause notice and asked the assessee to substantiate its stand. The assessee made detailed representation which was not found acceptable by the AO. He negatived the claim of the assessee by holding as under:
“2.5 The contention of the assessee is carefully considered but not found acceptable assessee has relied on certain case laws to contend that the activity of preparation of eatables from the raw material is manufacturing. Assessee also tried to take support from the definition of the word ‘manufacture’ introduced by the finance Act 2008 with effect from 1-4-2009(A.Y. 2009-10). It has to be noticed that the word defined to applicable from A.Y. 2009-10. Even if it is presumed that the for guidance the same definition can be applied, the activity of preparation of chapati samosa etc cannot be fall under manufacture. Raw material used by the assessee is flour, cereals which are processed to prepare eatable items. There is no manufacturing involved in this process. At the most it can be called preparation of food items. In the case of Asprinwall & Co. Ltd. 251 ITR 323, relied by the assesses was engaged in coffee manufacture not directly applicable to the assesses. Facts are different and distinguishable in other cases relied by the assessee However, the Supreme Court dealing with similar case as that of the assessee, there is the assessee was preparing eatable items from the raw material like eatable, cereals etc. and making food packets, held that does not amount to manufacture. Reliance is place on Hotel & Allied Trade Pvt. Ltd. v. CIT  245 ITR 538 (SC) where the Court held
“16. In our view, same would be the position with regard to the foodstuff served or sold by the hotels the foodstuff prepared by cooking or by any other process from raw materials such as cereals, pulses, vegetable, meat or the like cannot be regarded as commercially distinct commodity and it cannot be held that such foodstuff is manufactured or produced.”
7. Aggrieved by the order of the AO, assessee carried the matter before CIT(A). Before CIT(A) assessee made detailed submissions. CIT(A) did not agree with the contentions of the assessee and upheld the order of AO by holding as under:
“2.3 I have considered the facts of the case, assessment order and appellant’s written submission. Appellant claimed deduction under section 10B on exports of processed and packed food items in an industrial undertaking. Assessing officer disallowed the claim on the ground that honourable Supreme Court in the case of Indian hotels Ltd 245 ITR 538 held that foodstuffs prepared by cooking or any other process from raw materials is not manufacturing or production. Since deduction under section 10B is available only to an industrial undertaking which is involved in the business of manufacturing or production of articles and things. Since this vital condition is not fulfilled in the case of appellant in view of the aforesaid decision of honourable apex court, the deduction claimed by the appellant was to be not allowable. The relevant extract of the apex court decision in the case of Indian hotels Ltd is quoted below-
From the proviso to section 80J(I) and sections 80J(4), 80J(6) and 32A it is clear that for getting benefit of deduction or investment allowance, to requirement is that the assessee-company must be engaged in the business of manufacture or production of any article or thing. In case of preparing food packages or selling the some or preparing foodstuffs for serving in the hotel there is no question of manufacture or production. The raw material is at the most processed so as to make it eatable. The word ‘manufacture’ has various shades of meaning but unless defined under the Act it is to be interpreted in the context of the object and the language used in the sections. In the context of the provisions which deal with grant of investment rebate or deduction under section 80J it is apparent that it is used to mean production of a new article or bringing into existence some new commodity by an Industrial undertaking. It would not be applicable in cases where only processing activity is carried out. Further, such production activity must be by an Industrial undertaking and not by the assessee having mainly trading activity.
The foodstuff prepared by cooking or by any other process from raw materials such as, cereals, pulses, vegetables, meat or the like cannot be regarded as commercially distinct commodity and it cannot be held that such foodstuff is manufactured or produced.”
From the above it is clear that the deduction was not allowed by the apex court on two grounds- 1- Indian hotels Ltd was not an Industrial undertaking, 2- the foodstuffs prepared was not manufacturing or production of articles of things. In the case of appellant, there is no doubt about appellant being an industrial undertaking. In this regard appellant submitted various details to prove that it is an industrial undertaking. Therefore the first part of the decision in the case of Indian hotels Ltd is not applicable to the appellant and it is held that appellant is an industrial undertaking.
However the second part of the decision in which it is held that foodstuff prepared by cooking or by any other process from raw materials cannot be regarded as commercially distinct commodity and it cannot be held that such foodstuff is manufactured or produced, applies to the appellant. In the case of appellant foodstuffs in the form of processed and packaged food items are prepared through mechanised process but there is no dispute that the same was prepared from raw materials such as wheat, cereals, pulses, vegetable etc. Therefore to this extent facts of Indian hotels Ltd and appellant are Identical. Appellant submitted several decisions in which various activities through which raw materials were converted into different products were held to be manufacturing. However there is no decision directly relating to preparation of foodstuffs from raw materials. Therefore the decision of apex court in the case of Indian hotels Ltd is directly applicable to the facts of the appellant’s case as far as manufacturing of articles of things are concerned. There is no doubt about appellant preparing the foodstuffs through mechanised process involving substantial investment in factory and plant and machinery but the fact remains that it was preparing foodstuffs from raw materials through mechanised process which cannot be said to be manufactured or produced as per the apex court decision. All the decisions relied upon by the appellant are, on different facts or products and therefore the same cannot be applied in this case particularly when there is direct decision of the apex court ‘deciding that preparation of foodstuffs from raw material through any process is not manufacturing or production. Therefore it is held that none of the decision relied upon by the appellant applies to this case. Respectfully following the decision of honourable Supreme Court in the case of Indian hotels Ltd as quoted earlier, it is held that foodstuffs prepared by the appellant is not manufacturing and accordingly it is not eligible for deduction under section 10B. The addition made by the assessing officer is accordingly confirmed.
The other arguments given by the appellant that beneficial provisions should be liberally interpreted and that it was allowed deduction in earlier years, will not help appellant since the interpretation given by apex court regarding manufacturing cannot be ignored. It assessing officer in earlier years did not consider the apex court decision while interpreting manufacturing, such precedence cannot stop assessing officer from taking the correct stand in the current year. In view of this, appellant’s other arguments do not help appellant on the vital issue of interpreting manufacturing of foodstuffs from raw material.”
8. Aggrieved with the order of CIT(A), the assessee is now in appeal before us.
9. Before us, the Ld. AR submitted that the assessee is engaged in the manufacture and production of various eatables like paratha, samosa, patra, idli, vada etc at its plant by using various raw materials like wheat flour, rice, oil, ghee, spices etc. The assessee has been issued factory licence in 2002 and the Development Commissioner, KASEZ, Ministry of Commerce and Industry, Government of India has also issued approval to set up 100% EOU. The assessee has also been issued Excise Licence and has permission to have Private Bonded Warehouse u/s 58 of the Customs Act. The ld. AR placed the copies of the various permissions received by the assessee at page 8 to 21 of the paper book. The manufacturing activity is carried out at is plant where more than 2000 workers are employed. The Ld. A.R. submitted that long and detailed process are carried to manufacture each item. The Ld. A.R. described the process to manufacture chapatti as under:
“7. In the case of assessee, there is a long and detailed process carried on with the help of imported plant & machinery, the raw materials are processed and finished products are manufactured. For example the chapatti making process is given below:
“The assessee company procure wheat directly from the farmers. The procured wheat is cleaned and washed with vacuum and steam energy. There after the wheat goes to the milling department, which is spread in an area of 5000 Sq. Mtr and the wheat is grinded over there with a hi-tech grinding machine. Wheat converted into flour is the 1st case of form having been taken place from wheat to flour. After that the flour has been taken to the dough making department. Over here additions such as corn oil and other nutritive additives are added on to the flour. Dough is formed after the mixing of above mentioned items. Then this dough is place into Iii-tech imported chapatti making machine, which is operated with the help of boiler which generates the steam. air compressor which generates the vaccumization and DG sets for the supply of electricity. This dough is now converted into ready to cat chappati which is almost 80% cooked. After the process of the chapatti is done within the chapatti making machine, it is transferred onto the conveyors for the cooling process under the ambient temperature and thereafter it is feeded into the spiral freezer to attain a temperature of’ 18 Deg. C to maintain its shelf’ life of 2 years. This entire manufacturing process is done in an atmosphere which has a fresh air system and the air comes in from the screens.”
The process of such items such as paratha, tandoor, samosa, cocktail samosa, south Indian snacks. steamed items such as dahiwada, sandwitch dhokla, patra. parta vaghar & patra vata, stuff dutn aalu, fried bhindi, fried green methi, puran poll, bajra rotla, khaman and all type of chatani etc. is enclosed.”
He submitted that similar processes are carried out to manufacture other items. He placed at pages 22 to 32 the diagrammatic process of manufacturing of various other items. The Ld. A.R. further submitted that the assessee is an industrial undertaking in view of the fact that the assessee owns factory building with electric installation and plant and machinery and also has workers who are engaged in the manufacturing activity. The Ld. A.R. submitted that it has been carrying out manufacturing since AY 2003-04 and the Department has accepted the aforesaid fact and has allowed the deduction u/s.10B in the assessment orders passed u/s 143(3) in earlier years (A.Y.2005-2006, 2006-2007 and 2007-2008). He placed on record at pages 67 to 77 of the PB the copies of the assessment orders of earlier years. The Ld. A.R also submitted that under Excise laws, the goods of the assessee are classified under tariff code of “19090”. He placed on record the copies of RG1 Register (maintained under the Excise laws) in support of his contention that under the excise laws also the activities of the assessee are considered as manufacturing activity. Further, he pointed out that while passing the order for the year under appeal, though CIT(A) has denied the deduction u/s.10B, but has held that the assessee is an industrial undertaking (at page 8 in second last para). The Ld. A.R. also submitted the breakup of sales. The Ld. A.R submitted that in case of the assessee the raw materials like wheat, cereals. Ghee, oil etc are processed and converted into commercially new and distinct product. The raw materials are transformed into new and distinct article having a different name, character and use. The raw materials when consumed ceases to be original commodity and with the application of process it becomes commercially distinct and new product. The Ld. A.R. relied on the decision in the case of CIT v. Pankaj Jain Prop. Aagam Food Industries  152 Taxman 80 (J&K), CIT v. Sidral Food (P.) Ltd.  282 ITR 563, Arihant Tiles & Marbles (P.) Ltd. v. ITO  320 ITR 79. The Ld. A.R. submitted that the ratio of decision in the case of Indian Hotels Co. Ltd. (supra) are distinguishable on facts and are not applicable to the facts of the assessee. He submitted that the deduction was denied because in the case of Indian Hotel, its business was considered to be a trading activity not an industrial undertaking. He further submitted that there was no change in the facts in the year under appeal as compared to the facts of earlier years. Thus the Ld. A.R submitted that the activity of the assessee is a manufacturing activity and the assessee is therefore eligible for deduction u/s 10B.
10. On the other hand the Ld. D.R. submitted that the H’ble Apex Court in the case of Indian Hotels Co. Ltd. (supra) has held that the activity of processing food materials into edible products for service to clients cannot be considered to be a manufacturing activity. The Ld.D.R. also placed reliance on the decision of CIT v. Hotel Belle Vue (P.) Ltd  223 ITR 675 (Gau.). He thus supported the order of AO.
11. We have heard the rival submissions and perused the material on record. The main dispute in the present appeal before us is whether the activities of the assessee can be termed as “manufacturing activity” and therefore eligible for deduction u/s.10B. The factual matrix of the case is that the Assessee is a 100% EOU set up in October, 2002 and engaged in the business of manufacturing and export of various food products like Paratha, Samosa, Dholka, Idli, vada etc. The assessee’s factory is located in Tal. Kalol, Gandhinagar District. The assessee holds factory licence dated 12.8.2002, has permission from Office of Development Commissioner, Kandla Special Economic Zone for its 100% EOU unit for manufacture and export of food. Its factory premises at Tal Kalol is also licenced under Section 58 of the Customs Act 1953 as a Private Bonded Warehouse for storing and manufacturing of food items. It has also been granted Central Excise Registration Certificate under Rule 9 of the Central Excise Rules, 2002 for operating as a manufacturer of excisable goods and is registered for operating as a 100% EOU. We are informed that the aforesaid certificate is still valid and has not been revoked by the concerned authorities. The assessee owns factory building with Plant and Machinery and Electrical Installations. The value of Plant and machinery and electrical installations as per the audited balance sheet as on 31.3.2008 is in excess of Rs. 20 crores, and the assessee claims that the number of workers employed in its factory are in excess of 2000. These facts have not been controverted by Revenue by bringing any contrary material on record and therefore the undisputed factual position is that the Assessee is an industrial undertaking. The fact that assessee is an “industrial undertaking” has also been accepted by the CIT(A) while passing the order dated 5.6.2012. However, the controversy remains that the CIT(A) has not accepted the claim of the assessee that the assessee is indulging in manufacturing activities. The assessee claims that it manufactures various products like paratha, samosa, vada, idli at its factory. The process of manufacturing consists of various processes. The chapatti making process of the assessee has been narrated hereinabove. Similar process is used for manufacture of other products.
The ld. AR described the process for manufacture of chappati. The assessee procures wheat directly from the farmers which is cleaned and washed with vacuum and steam, thereafter in the milling dept. the wheat is grinded with the help of machines and converted into flour which is then transferred to dough making department where various nutritative additives are mixed in the flour and dough is formed. With the help of chapati-making machines, dough is converted into ready to each chapatti which is transferred into conveyors for cooling process and thereafter it is fed into spiral freezer to attain temperature of 18oC so as to maintain its shelf life of 2 years. Various processes are involved and with the help of various machineries, the chapattis are manufactured. Similar process is involved in manufacture of various other items. The Revenue have not brought any material on record to controvert the manufacturing process followed by the assessee. In the present case, we find that the assessee uses various materials like flour, ghee, oil etc. for the production of various items. The production is done by following a particular set process. The various raw materials when consumed lose their individual and independent identity and a different and new product comes into existence. The new product manufactured has a different name and characteristics and is commercially distinct. Even for the purpose of Excise duty, final product is considered as a different product than the individual items of raw materials. The produced goods was not sold to the customer as floor, ghee etc but with the change in the form and it attained a different identity and was recognised as a new and distinct article and was sold as a different and distinct commodity. Accordingly, the manufacturing of chappati, parath, samosa, dhokla constitutes manufacturing activity.
From the flow chart of manufacturing process in the case of “Mathia”/”Chorafali” submitted by the Ld. A.R we find that the process is described as under:
“Receiving of “mathia”/”Chorafali” in bulk packaging from supplier in the production area, thereafter the process of sorting takes place and then packing in consumer packs and thereafter freezing to -18° C in deep storage freezer.”
Thus from the flow chart it appears that in the case of “mathia” and “chorafali” the assessee does repackaging. Further from the details of sales submitted by the assessee we find that the sales includes sale of “coriander leaves”, “chorafali”, “custard apple pulp”, “magaj ladu”, “IQF shredded coconut” and “misc. items”. From the details it appears that the aforesaid items are sourced ready made and not manufactured in the factory of assessee. The total sales of such items as per the summary is Rs. 85,68,942/-. We are of the view that for the aforesaid items which have been outsourced and not manufactured in the premises of the assessee but have only been repackaged with some other connected activities at the assessee’s premises cannot be considered to be a manufacturing activity by the assessee.
The Revenue has placed heavy reliance on the decision of the Hon’ble Supreme Court in the case of Indian Hotels Co. Ltd. (supra). The decision of the Hon’ble Supreme Court are distinguishable in view of the fact that in that case, the Hon’ble Supreme Court had held the “business of the assessee is that of a hotel, which is trading activity and not of an “industrial undertaking”. It was further held that the flight kitchen was ancillary to its business of hotel and therefore it was held that it to be a company engaged n the business of hotel and not an “industrial undertaking”. In view of these facts, it has held that preparing and selling foods stuff for selling in hotel there was no question of manufacture or production. However, in the present case, the ld.CIT(A) has given a finding that the assessee is an “industrial undertaking” and to controvert this fact, nothing has been brought on record by the Revenue. These findings of ours is also supported by the decision of J&K High Court in the case of Pankaj Jain, Prop. of Aagam Food Industries (supra), where the assessee was manufacturing bread, the Hon’ble High Court has held that the assessee was an “industrial undertaking” engaged in the manufacture and production of bread and was thus entitled to the benefit of deduction under Section 80IB.
In the case of CIT v. N.C. Budharaja & Co  204 ITR 412 the H’ble Apex Court has held that the test for determining whether manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity but is recognised in the trade as a new and distinct commodity.
In the case of Indian Hotels Ltd. (supra), the H’ble Apex Court has held that “the word “manufacture” has various shades of meaning but unless defined under the Act it is to be interpreted in the context of the object and the language used in the sections. In the context of the provisions which deal with grant of investment allowance or deduction u/s 80J it is apparent that it is used to mean production of a new article or bringing into existence some new commodity by an industrial undertaking. It would not be applicable in cases where only processing activity is carried out. Further, such production activity must be by an industrial undertaking and not by the assessee having mainly trading activity.”
In the case of Pankaj Jain Prop. Aagam Food Industries (supra), the question before the H’ble High Court was whether the conversion of maida, sugar, yeast etc into bread was manufacturing activity and therefore whether the assessee was entitled to benefit u/s 80IB of the Act. The H’ble High Court held as under:
“16. The process admittedly envisages nine steps whereby maida, sugar, yeast and other ingredients are processed and put to pass through various stages of mechanical process with the aid of power, like mixing, rounding, proving, moulding, fermenting, baking, cooling, slicing etc. If the test laid down by the Supreme Court in its various judgments was applied to this process, we are left with no doubt that this was a manufacturing process and the assessee was manufacturing bread and not processing it, because the whole process of conversion of the raw material undoubtedly leads to production of a new thing i.e. the bread in place of the original ingredients like maida, sugar, yeast etc. The raw material before processing is altogether different and after its conversion, its nature, character and use undergoes a total change leading to the production of a new thing bread. Therefore it cannot be said that unbaked materials. i.e. maida, sugar, yeast, etc retain their character even after conversion into a bread, involving processing only. As far as whether the assessee’s unit was industrial undertaking, it held … the asseess’s unit stands already registered with Directorate of Industries holding power licence and is also registered under the Factories Act and therefore there is thus no doubt that it was an industrial undertaking within the meaning of s. 80IB of the Act engaged in the manufacturing activity…’
Further the H’ble HC distinguished the decision of Apex Court in the case of Indian Hotels in following manner:
“21. A careful reading of this judgment would show that it had several distinguishing features, which were not attracted in the present case. For example, it was dealing with a flight kitchen which was being run alongwith hotel and was ancillary to the hotel business and that is why it was not held to be a separate industrial undertaking within the meaning of s. 80J. Similarly, the Supreme Court found that the Indian Hotels Co Ltd was engaged in the business of trading activity and not in any industrial activity as such and was preparing food stuff for consumption which did not result in the manufacture of production of any new article or thing because all food packages prepared in the flight kitchen involved only the activity of processing and not manufacturing, and original eatables retained their nature and character and were not transformed into a new product.”
It thus held by the Hon’ble J&K High Court in this case that the assessee was an industrial undertaking engaged in the manufacturing and production of bread and was thus entitled to benefit of deduction u/s 80IB of the Act.
12. In the case of Arihant Tiles & Marbles (P.) Ltd (supra), has observed as under:
“Before concluding we would like to make one observation. If the contention of the Department is to be accepted, namely, that the activity undertaken by the respondents herein is not a manufacture, then, it would have serious revenue consequences. As stated above, each of the respondents is paying excise duty, some of the respondents are job workers and the activity undertaken by them has been recognised by various Government authorities as manufacture. To say that the activity will not amount to manufacture or production under section 80IA will have disastrous consequences particularly in view of the fact that the assessees in all the cases would plead that they were not liable to pay excise duty, sales tax etc because the activity did not constitute manufacture. Keeping in mind the above factors, we are of the view that in the present cases, the activity undertaken by each of the respondent constitutes manufacture or production and therefore they would be entitled to the benefit of section 80IA of the Income tax Act, 1961”.
13. On the basis of material on record, we find that the assessee has claimed deduction u/s 10B in the past assessment years and the claim of the assessee was allowed while framing the assessments framed u/s 143(3) and the assessments have attained finality. It was submitted that there was no change in the facts in the year under appeal as compared to the facts of earlier years. This fact has not been controverted by the Ld. D.R. by bringing any contrary material on record.
We further find that the Hon’ble J.K. High Court in the case of Pankaj Jain (supra) after distinguishing the Hon’ble Apex Court in the case of Indian Hotels (supra) has held the manufacture of bread to be a manufacturing activity.
Thus, in view of the totality of facts of the case, we hold that the issue before us is covered with the decision of Hon’ble J.K. High Court in the case of Pankaj Jain Prop Aagan Food Industries (supra) in favour of the assessee and we are of the view that the assessee is an industrial undertaking and the activity of production of the foodstuff is a manufacturing activity (except for the items outsourced from other parties).
14. In the year under appeal, the profit for the year includes the profit on sale on outsourced items. From the profits, the break-up of profit earned from outsourced items is not available before us. We are of the view that profit earned from outsourced items cannot be considered as profit earned from the manufacturing activities undertaken by the assessee, and therefore the assessee shall not be entitled to deduction under Section 10B on profit earned on sale on outsourced items. We are thus of the view that matter of quantification of the quantum of profits earned on out-sourced and self manufactured items needs verification. We accordingly are of the view that the matter be sent back to the file of the AO for the limited purpose to determine the profits of self manufactured items and that of outsourced items. The AO shall compute the profits eligible for deduction u/s.10B and allow the deduction under Section 10B in proportion of the turnover of self-manufactured and outsourced items. The assessee shall co-operate by furnishing the required details to the AO for computing such profits. Thus this ground of the assessee is partly allowed.
15. The additional ground raised by the assessee was not seriously argued and therefore the same is dismissed.
16. In the result the appeal of the assessee is partly allowed.