Per Shri V.P. Elhence, Judicial Member - The assessee is aggrieved of the order dated 14-3-1983 of the learned Commissioner (Appeals).

2. The assessee, Budhwar Cold Storage, Ujhani, Budaun is an unregistered firm. The assessee claimed investment allowance of Rs. 66,148 under section 32A of the Income-tax Act, 1961 (‘the Act’) at the rate of 25 per cent on machinery and plant worth Rs. 2,64,554. The assessee claimed before the ITO that the cold storage involved manufacturing. However, the ITO held that the cold storage only involved processing and not manufacture or production of an article or thing. Therefore, the claim of investment allowance was disallowed. Since the industrial undertaking, in question, is situated in a backward district, deduction under section 80HH of the Act was also claimed by the assessee. The assessee did not file the prescribed audit report in Form No. 10C, as required under section 80HH(5), read with rule 18B of the Income-tax Rules, 1962 (‘the Rules’) and, therefore, the claim was rejected by the ITO, The first two grounds of appeal relate to these claims. In appeal, the learned Commissioner (Appeals) upheld the rejection of the claims.

3. In further appeal before us, Shri K.L. Goel, the learned counsel for the assessee, placed reliance on the following decisions—CIT v. Kanodia Cold Storage [1975] 100 1TR 155 (All.), AMI. CIT v. Farrukhabad Cold Storage (P.) Ltd. [1977] 107 1TR 816 (All.), Farrukhabad Cold Storage (P.) Ltd. v. CIT [1979] 119ITR895 (All.) and CIT v. Yamuna Cold Storage [1981] 129 ITR 728 (Punj. & Har.). He also relied upon the definition of ‘manufacturing process’ in section 2(k) of the Factories Act, 1948, and particularly drew our attention to the Factories (Amendment) Act, 1976, by which a new sub-clause (vi) was added to section 2(k) in the following terms : ‘(vi) Preserving or storing any article in cold storage’. On the other hand, Shri S.D. Kapila, the learned departmental representative, strongly supported the orders of the income-tax authorities. In particular, he pointed out that the Factories Act would be relevant only for the purposes of factory building. He pointed out that in section 80J(4) of the Act since a specific reference was made to cold storage plant, which did not find mention in section 32A or 80HH, it was a clear indication that relief under section 32A or section 80HH was not intended to be given in cases of cold storage. He also pointed out that when potatoes were kept in a cold storage, they were only preserved and that neither did they undergo any transformation, nor did a commercially different article or thing resulted by putting them in the cold storage. He submitted that none of the decisions, referred to on behalf of the assessee, was of assistance to it.

4. We have considered the rival submissions as also the decisions, referred to above. Section 32 of the Act, which deals with depreciation, uses the’ expression ‘plant’. Section 43(3) of the Act defines ‘plant’. It is with reference to the said definition that it was held by the Hon’ble Allahabad High Court in the case of Kanodia Cold Storage (supra) that the freezing chamber with insulated walls in a cold storage amounted to a ‘plant’ which was entitled to depreciation at the rate of 15 per cent on its written down value. It does not help the assessee as this is not the point in issue before us. Section 2(7)(d) of the Finance Act, 1966 and the Finance (No. 2) Act, 1967, defined an ‘industrial company’ as a company which was mainly engaged in the business of generation or distribution of electricity or any other form of power or in the construction of ships or in the manufacture or processing of goods or in mining. It is with refer-ence to the said definition that it was held by the Hon’ble Allahabad High Court in the case of Farrukhabad Cold Storage (P.) Ltd. (supra) that a com-pany doing cold storage business answered the description of an industrial company, so defined. This again is not the p