Suhas Chandra Sen, J.
1. The Tribunal has referred the following question of law to this court under Section 256(1) of the Income-tax Act, 1961 :
'Whether, on the facts and in the circumstances of the case, the assessee can be treated as an industrial company ?'
The assessment year involved is 1975-76. The assessee is engaged in business which consists wholly in processing goods, rendering them edible and then selling them in its restaurant as foodstuffs and eatables. The foodstuffs and eatables were prepared on the orders placed by customers. The dispute in this case is as to whether the company can be described as an industrial company. The Tribunal held that preparation of food articles in the case of the assessee would also amount to processing. It further held that the meaning of the word 'manufacture' or 'processing' should not be confined to non-edible stuff.
2. The correctness of the conclusion of the Tribunal has been challenged by the Department. The definition of 'industrial company' as given by the Finance Act, 1975, is as under :
'2(8)(c) 'industrial company', means a company which is 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.
Explanation.--For the purposes of this clause, a company shall be deemed to be mainly engaged in the business of generation or distributionof electricity or any other form of power or in the construction of ships or in the manufacture or processing of goods or in mining, if the income attributable to any one or more of the aforesaid activities included in its total income of the previous year (as computed before making any deduction under Chapter VI-A of the Income-tax Act) is not less than fifty-one per cent. of such total income.'
Mr. Dhar has contended that an industrial company must be a company which is engaged in industrial activity like construction of ships or something of a similar nature. The goods must be some industrial goods which can be utilised in the construction of ships or on the other objects stated in the definition section.
3. It appears from the definition that five categories of objects have been mentioned therein. If the company is 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, the company will come within the definition of 'industrial company'. It will be seen that generation or distribution of electricity or any other form of power or the construction of ships or mining do not form part of any one particular genus. Mr. Dhar has not been able to satisfy us as to how the doctrine 'ejusdem generis' can be invoked in this case. The phrase 'processing of goods' cannot take its colour from the other activities mentioned in the definition section.
4. Moreover, the well-known rule of construction is that if two interpretations of a taxing statute are possible, the interpretation which favours the assessee must be adopted.
5. Mr, Deb, appearing on behalf of the assessee, drew our attention to a judgment of this court in the case of G.A. Renderian Ltd. v. CIT : [1984]145ITR387(Cal) , where, in construing the definition of 'industrial company', it was held that the word 'processing' was broad enough to take in the activity of purchasing of tea of different qualities and blending and mixing of one type with another and selling it. It was held in that case that the assessee came within the definition of 'industrial company' given in Section 2(7)(c) of the Finance Act, 1978.
6. Strong reliance has been placed by Mr. Dhar on a judgment of the Kerala High Court in the case of CIT v. Casino (Pvt.) Ltd. : [1973]91ITR289(Ker) . There, the Kerala High Court, in construing the expression 'industrial company' in the Finance Act, 1968, held (p. 300) 'There may be trading concerns which may sometimes engage in production which isincidental to trading. It nevertheless will continue to be a trading concern. A hotel, according to us, is one such as it is mainly intended for trading and not for production or manufacture. The various items of foodstuffs and beverages produced in a hotel are intended for trading and the conversion of the raw materials into foodstuffs is only a process in trading. Notwithstanding this, the concern would essentially be a trading concern.'
7. The facts before the Kerala High Court were entirely different from the facts of this case. In the case before the Kerala High Court, the main business of the assessee was hotel business. Supply of foodstuffs was an ancillary part of that business. In the instant case, the only business of the assessee is production and sale of foodstuffs. If the assessee, by using wheat and other ingredients, produces bread, it is difficult to see why the activity of the assessee cannot be regarded as 'manufacture' or 'processing'. The Legislature has used the word 'manufacture' and also the word 'processing' to indicate two different types of activities. There may be some overlapping in certain cases. It may be that certain activities may fall within the meaning of the word 'processing' as well as 'manufacture'. But, generally, the two expressions must not be used as synonymous so as to make the word 'processing' otiose and meaningless.
8. We are also unable to uphold the contention that the intention of the Legislature was only to treat a manufacturing concern as an 'industrial company'. If a company is engaged in the business of distribution of electricity or any other form of power, then such a company will have to be treated as an 'industrial company'. If a bulk licensee is authorised by his licence to supply energy to other licensees for distribution of electricity by them under the provisions of the Indian Electricity Act, 1910, then both the bulk licensee and the distributing-licensee will have to be treated as 'industrial companies': Section 2(8)(c) of the Finance Act, 1975, does not provide that only a company which manufactures and distributes electricity will be treated as an 'industrial company'. The language employed by the Legislature is clear. The generation or distribution of electricity has been used disjunctively in the first part of the definition. In the latter part of the definition, manufacture or processing of goods have also been used disjunctively. The plain meaning of the words must override any supposed intendment of the Legislature. In the case of Commissioners of Inland Revenue v. Rossminster Ltd. [1979] 52 TC 160. Lord Salmon observed :
'However much the courts may deprecate an Act, they must apply it. It is not possible by torturing its language or by any other means to construe it so as to give it a meaning which Parliament clearly did not intend it to bear.'
It is not necessary to refer to any other judgment in view of the pronouncements of this court in the case of G. A. Renderian Ltd. v. CIT : [1984]145ITR387(Cal) .
9. The question is answered in the affirmative and in favour of the assessee.
10. There will be no order as to costs.
Bhagabati Prasad Banerjee, J.
11. I agree.