SUDHIR AGARWAL, J. - (1.) THESE three references have been made by the Tribunal at the instance of Revenue and the questions of law in all the three matters read as under: Reference No. 193 of 1987 (Assessment Year -1971 -72) "Whether in law and on facts of the case the Tribunal is right in holding that the assessee company is entitled for development rebate @ 35% in plant and machinery and also deduction under section 80 -I of the Income Tax Act, 1961 while it is clear that the product does not fall within the entry 18 of Fifth and Sixth Schedules of the Income Tax Act, 1961 - Reference No. 58 of 1988 (Assessment Year -1969 -70) "Whether in law and on facts of the case the Tribunal is right in holding that the assessee company is entitled for development rebate @ 35% in plant and machinery and also deduction under section 80 -I of the Income Tax Act, 1961 while it is clear that the product does not fall within the entry 16 of Fifth and Sixth Schedules of the Income Tax Act, 1961 - Reference No. 109 of 1988 (Assessment Year -1975 -76) "Whether in law and on facts of the case the Tribunal is right in holding that the assessee company is entitled for development rebate @ 25% in plant and machinery and also deduction under section 80 -I while it is clear that it was not engaged in a 'Priority Industry' and the product does not fall within the entry 18 of Fifth and Sixth Schedules of the Income Tax Act, 1961 -
(2.) SIXTH Schedule was inserted by Finance Act, 1968 w.e.f. 01.04.1969, amended by Finance (No. 2) Act, 1971 w.e.f. 01.04.1972, and omitted by Finance Act, 1972 w.e.f. 01.04.1973.
(3.) HOWEVER , Fifth Schedule was inserted by Finance Act, 1965 w.e.f. 01.04.1965. The Fifth Schedule has to be read with Section 33(1)(b)(B)(i), which reads as under: "Section 33 - Development rebate (1) (a).... (b) The sum referred to in clause (a) shall be - (A) .... (B) in the case of machinery or plant, - (i) where the machinery or plant is installed for the purposes of business of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule, - (a) thirty -five per cent of the actual cost of the machinery or plant to the assessee, where it is installed before the 1st day of April, 1970, and (b) twenty -five per cent of such cost, where it is installed after the 31st day of March, 1970." The development rebate, therefore, in respect to items covered under Section 33(1)(b)(B)(i) is 35% if the machinery or plants were installed before 01.04.1970 and 25% if installed after 31.03.1970.;