bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION INCOME INCOME INCOME TAX APPEAL NO. 227 OF 2005 TAX APPEAL NO. 227 OF 2005 TAX APPEAL NO. 227 OF 2005 S.H.Kelkar & Co. Ltd. ... Appellant v/s JCIT, Special Range 54, Bombay ... Respondent Mr.Navshot Thakkar with Mr.Rajesh Poojari i/by Mulla & Mulla & C.B.& C. for the appellant. Mr.B.M.Chatterji with Mrs.P.P.Bhosale and Mr.P.S. Sachdevan for the respondent. CORAM: CORAM: CORAM: F.I.REBELLO AND F.I.REBELLO AND F.I.REBELLO AND R.S.MOHITE, R.S.MOHITE, R.S.MOHITE, JJ. JJ. JJ. DATED: DATED: DATED: 19TH MARCH, 2008. 19TH MARCH, 2008. 19TH MARCH, 2008. P.C. P.C. P.C.: 1. The learned Tribunal proceeded on the footing that insofar as the present question is concerned that the notification issued in favour of the petitioner at the relevant time was approved only by Department of Scientific and Industrial Research (hereinafter referred to as "D.S.I.R.") and as the petitioner’s case was governed under Section 35(1)(ii) of the Income Tax Act, 1961, that would be of no consequence. 2. Learned counsel for the appellant draws our attention to the communication dated 4.4.1997 of 2 Director General of Income Tax (hereinafter referred to as "D.G.I.T.") which has effect from the period 12.3.1997 to 31.3.1998. In other words, it would cover also assessment year 1996-1997. This issue has not been considered. 3. In our opinion, the following proviso to Section 35(1) would be relevant for the purpose and the same reads as under: "Provided also that any notification issued by the prescribed authority under clause (ii) or clause (iii) shall, at any one time, have effect for such assessment year or years, not exceeding three assessment years (including an assessment year or years commencing before the date on which such notification is issued) as may be specified in the notification". 4. In the instant case, admittedly, the Tribunal itself has observed in para 7 that the case of the assessee is covered under Section 35(1)(ii) of the Income Tax Act. As the notification is effective from 12.3.1997, the petitioner’s case was fairly covered by the proviso. In the light of that, the question as prayed, which reads 3 as under: "Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in holding that the appellant was not entitled to the deduction of the sume paid to the scientific research centre under Section 35(1)(ii)" will have to be answered in the negative and in favour of the appellant. 5. Appeal accordingly allowed. (F.I.REBELLO, (F.I.REBELLO, (F.I.REBELLO, J.) J.) J.) (R.S.MOHITE, (R.S.MOHITE, (R.S.MOHITE, J.) J.) J.)