JUDGMENT M.H.S. Ansari, J. 1. THIS is a reference under section 256(1) of the Income-tax Act, 1961, at the instance of the assessee. The following questions have been referred by the Income-tax Appellate Tribunal ("the ITAT") for adjudication by this court : "1. Whether, there was any evidence and/or materials on record to hold that the assessee-company could not be treated as an industrial company when Messrs. Martin and Harris (P.) Ltd., has been subjected to concessional rate of tax on the ground that M/s. Martin and Harris (P.) Ltd. is an industrial company because it had manufactured pharmaceutical products for the assessee-company? 2. WHETHER, the conclusions and findings of the Tribunal that Messrs. Martin and Harris (P.) Ltd. can rightly claim that it is an industrial company because it is directly engaged in the manufacture of pharmaceutical products for the assessee-company are based on any materials and are perverse and vitiated by reason of inadmissible or irrelevant or partly relevant and partly irrelevant material and are surmises and conjectures ? Whether, on the facts and circumstances of the case, the Tribunal was justified in law in coming to its conclusion that the Commissioner of Income-tax (Appeals) erred in holding that the assessee was an industrial company within the meaning of section 2(8)(c) of the Finance Act, 1984 ? 3. WHETHER, on the facts and circumstances of the case, the Tribunal was justified in law in holding that the printing, publication and distribution of pharmaceutical concerns does amount to publicising the products and promote the sales ? 4. WHETHER, on the facts and circumstances of the case, the Tribunal was justified in law in reversing the finding and conclusion of the Commissioner of Income-tax (Appeals), for deletion of Rs. 5,56,464 being the expenditure incurred for the purpose of printing and distributing pamphlets and literature relating to the different products in pharmaceutical lines as an essential element of its business of manufacture and distribution of pharmaceutical products ? Whether, on the facts and circumstances of the case, the Tribunal was right in law in holding that the Assessing Officer rightly considered the expenditure incurred on account of printing of literature and disallowed the same under section 37(3A) of the Income-tax Act, 1961 ? 5. Whether, on the facts and circumstances of the case, the Tribunal was right in law in holding that the Assessing Officer rightly considered the expenditure incurred on account of printing of literature and disallowed the same under section 37(3A) of the Income-tax Act, 1961 ? 5. Whether the findings and/or conclusions of the Tribunal to reverse the findings and conclusions of the Commissioner of Income-tax (Appeals) are supported by any evidence on record and are based on irrelevant or inadmissible evidence or are unreasonable or perverse?" 2. Mr. A. K. Roy Chowdhury, learned counsel for the assessee upon instructions of his clients submitted that questions Nos. 2 and 7 are not being pressed. It is therefore not necessary to answer the said two questions. 3. The facts relevant to questions Nos. 1 and 3 are that for the assessment year 1984-85, the Assessing Officer ("the AO") rejected the claim of the assessee for being treated as an "industrial company" for the reason that the assessee had no manufacturing activity of its own. The assessee's pharmaceutical products were manufactured by M/s. Martin and Harris (P) Ltd., and the same were marketed through M/s. Walter Sushnell (P) Ltd. Aggrieved against the said order, the assessee preferred an appeal before the Commissioner of Income-tax (Appeals). The appeal was allowed relying upon the decision of the Calcutta High Court in the case of Addl. CIT v. A. Mukherjee and Co. (P.) Ltd. This time the Revenue preferred an appeal and the Income-tax Appellate Tribunal held that the assessee-company is not directly engaged in the manufacture of pharmaceutical goods. The document relied upon by the assessee was a loan licence for manufacturing and sale of drugs. The judgment of the Calcutta High Court relied upon by the Commissioner of Income-tax (Appeals) it was held by the Income-tax Appellate Tribunal does not touch upon the facts of the present case and, therefore, reversed the order of the Commissioner of Income-tax (Appeals) and restored that of the Assessing Officer. 4. Mr. A. K. Roy Chowdhury assisted by Smt. Sutapa Roy Chowdhury, learned counsel for the appellants, contended that the conclusion arrived at by the Tribunal is erroneous. Reliance was placed upon the judgment of the Madhya Pradesh High Court in CWT v. Smt. Premlatabai wherein the judgment of this court in A. Mukherjee's case [1978] 113 ITR 718 was relied upon. 5. Reliance was placed upon the judgment of the Madhya Pradesh High Court in CWT v. Smt. Premlatabai wherein the judgment of this court in A. Mukherjee's case [1978] 113 ITR 718 was relied upon. 5. In the aforesaid judgment in A. Mukherjee's case, the court held that in order that a publisher of books should be a manufacturer of books it is wholly unnecessary for him either to be an owner of a printing press or to be a book binder himself. A publisher may get the books printed from any printer but the printer is not the manufacturer but a mere contractor. 6. The aforesaid judgment was followed by the Delhi High Court in Orient 6 Longman Ltd. v. CIT. In that case it was observed that the business of the assessee to get the books manufactured by getting the manuscript, designing the nature of the book, finishing the anticipated product would fall within the meaning of "manufacture or processing" of goods. 7. In Griffon Laboratories (P.) Ltd. v. CIT a similar 7 question arose. The judgment of the Supreme Court in CST v. Dr. Sukh Deo was noticed wherein it was observed that a manufacturer is a person by whom or under whose direction or control the goods are manufactured. The judgment of this court in A. Mukherjee's case [1978] 113 ITR 718 was also noticed. The judgment of the Tribunal in that case was reversed on the ground that the Tribunal had not gone into the question as to whether the assessee caused those goods to be manufactured and the matter was remitted to the Tribunal to ascertain the fact whether the goods were manufactured under the actual supervisory control or direction of the assessee and to determine as to whether the assessee was mainly engaged in the manufacture and processing of those goods and was entitled to the concessional rate of tax. 6. THUS on the authority of the judgments, referred to supra, a manufac- 8 turer may hire a plant or machinery and employ hired labour and manufacture the goods including hiring of a contractor to manufacture the goods. A manufacturer need not possess any manufacturing plant or machinery. 6. THUS on the authority of the judgments, referred to supra, a manufac- 8 turer may hire a plant or machinery and employ hired labour and manufacture the goods including hiring of a contractor to manufacture the goods. A manufacturer need not possess any manufacturing plant or machinery. But to earn the benefit of the concessional rate of tax as an industrial company it must engage itself in the manufacture or processing of goods either personally or by someone under its supervisory control or direction. In the case on hand, as noticed supra, the Tribunal based on the evid- 9 ence on record held that the assessee was not engaged in the manufacture of pharmaceutical products. No material was placed before the authorities to show that the manufacturer (M/s. M and H Ltd.) was a mere contractor. The only document placed by the assessee was a loan licence to manufacture drugs for sale. It was found on facts on record by the Income-tax Appellate Tribunal that the assessee-company is not on its own engaged in the manufacture of the pharmaceutical goods. 7. IN view of the findings of the final fact-finding authority (the "ITAT") it 10 must be held that the assessee is not an industrial company within the meaning of section 2(8) (c) of the Finance Act, 1984. 8. THE facts relevant to questions Nos. 4, 5 and 6 are that the Assessing 11 Officer disallowed certain expenditure incurred by the assessee for the two assessment years, namely, 1984-85 and 1985-86, on the ground that the same related to publicity. The disallowance was considered by the Assessing Officer under section 37(3A). The Commissioner of Income-tax (Appeals), however, held that the expenditure was not on account of advertisement and reversed the order of the Assessing Officer and directed him to delete the same for the purpose of calculating the disallowance under section 37(3A). In appeal, the Income-tax Appellate Tribunal (the "ITAT"), reversed the findings and conclusions of the Commissioner of Income-tax (Appeals) and upheld the action of the Assessing Officer. Mr. In appeal, the Income-tax Appellate Tribunal (the "ITAT"), reversed the findings and conclusions of the Commissioner of Income-tax (Appeals) and upheld the action of the Assessing Officer. Mr. A. K. Roy Chowdhury, learned counsel for the assessee, contended that there was material on record as can be seen also from the order of the Income-tax Appellate Tribunal that the expenditure in question was in respect of medical literature which was distributed to various medical professionals like doctors and wholesale pharmaceutical concerns and therefore the same would not be hit by the provisions of sub-section (3A) of section 37 and reliance for that purpose is placed upon the judgment of this High Court in Griffen Laboratories Ltd. v. CIT [2000] 244 ITR 68. 9. IN the aforesaid judgment the Division Bench in Griffen Laboratories' case noticed the judgment in CIT v. The Statesman Ltd. wherein the legislative history of sub-sections (3A) and (3B) of section 37 of the Act was considered as also the Central Board of Direct Taxes circular. The Division Bench in Griffen Laboratories' case thereupon held as follows : "IN view of the aforesaid facts, we are of the view that the provisions of sub-sections (3A) and (3B) of section 37 cannot be invoked for disallowance under that provision on medical literature and journals distributed by the company, to the medical professionals." 10. FOLLOWING the view of this High Court in the above case of Griffen Laboratories' case [2000] 244 ITR 68, it must be held that in the facts and circumstances of this case the expenditure could not be disallowed under sub-section (3 A) of section 37. In the result, we answer the reference as under : 11. QUESTIONS Nos. 1 and 3 are answered in the affirmative, in favour of the Revenue and against the assessee. 12. QUESTIONS Nos. 2 and 7 are not pressed by the assessee and hence we decline to answer the same. Questions Nos. 4, 5 and 6 are answered in the negative, in favour of the assessee and against the Revenue. 13. REFERENCE is accordingly disposed of, however, without any order as to 19 costs.