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28. The learned Counsel for the assessee further contended that in order to claim the benefit of Section 35A it is necessary that there should be an expenditure of a capital nature and such expenditure should be on the acquisition of patent right or copyright used for the. purpose of the business. Since in the instant case all conditions are undisputedly satisfied except that patent as provided in the aforesaid provision does not in the opinion of the learned assessing officer include trademark, the assessee is not entitled for this deduction under Section 35A of the Income Tax Act. The learned Counsel for the assessee further invited our attention to the order of the Tribunal in the case of BPL Refrigeration Ltd. v. Asstt. CIT (2004) 91 ITD 203 (Bang.) in which the revenue itself has claimed that deduction under Section 35A of the Act should be allowed on trademarks acquired by the assessee, but the Tribunal has allowed the deduction of the same under Section 37 of the Income Tax Act. Our attention was further invited to the judgment of the Apex Court in the case of Astra Pharmaceuticals (P) Ltd. v. CCE which Their Lordships have observed that under the custom tariff "patent or proprietary medicines" have been defined as any drug or medicinal preparation in whatever form for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals which bears either on itself or on its container or both, a name which is not specified in a monogram in a pharma copoeia formulary or other publications notified in this behalf by the Central Government in the Official Gazette or which is a brand name, i.e., the name or registered trademark under the Trade and Merchandise Marks Act, 1958, or any other mark such as symbol, monogram or labels or signatures or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course between the medicine and some person having the right either as a proprietary or otherwise to use the name or mark with or without any indication and the identity of that person. On the basis of this definition given in different dictionaries, the Hon'ble Apex Court has finally held that the other clause of patent or proprietary medicines to which this tariff items apply are those medicines, which have brand name or registered trademark under the Trade and Merchandise Marks Act and carry such market symbol or monogram as to establish relation between medicine and producers and manufacturers, i.e., the writing of the monogram on the medicines must establish that it was the producer or manufacturer, who was the proprietor of the medicines. Mr. Agarwal further invited our attention to another judgment of the Apex Court in the case of Sumat Prasad Jain v. Sheojanan Prasad in which Their Lordships have held that the function of the trademark is to give an indication to the purchaser or a possible purchaser as to the manufacturer or quality of the goods to give an indication to his eye of the trade, source from which the goods come or the trade hands through which they pass on their way to the market.

33. Having carefully examined the orders of the lower authorities and documents available on record, in the light of rival submissions we find that admittedly assessee has acquired the trademark against a lump sum payment of Rs. 34 crores to ASE besides acquiring technical know-how. The transaction of acquisition of the trademark from ASE on a total consideration of Rs. 34 crores was not doubted. The revenue has disallowed the claim of the assessee on the ground that assessee is not entitled for deduction under Section 35A of the Income Tax Act as the trademark does not fall within the definition of "patent rights" on which deduction under Section 35A of the Act is available. The alternative arguments of the assessee were not raised before the assessing officer as such no view was expressed on this point by him. The Commissioner (Appeals) accepted the contention of the assessee that the trademark has not been defined under the Income Tax Act and it is to be understood as in common parlance. Relying upon the meaning of trademark medicines as per dictionary of Law Lexicon, the Commissioner (Appeals) has held that trademark is synonymous in its meaning to that of a patent right and as such the assessee is entitled for deduction under Section 35A of the Income Tax Act. Now the revenue has taken a stand before us that the patent and the trademarks are different rights and they cannot be mixed up together. It is also an undisputed fact that trademark or a patent right has not been defined in the Income Tax Act and as such to understand the meanings of both these words, we have to take the assistance of dictionary of Law Lexicon in which both these words have been defined. For the sake of reference, we reproduce the exact meaning of the trade mark, trademark medicine and patent right, which are as under:

36. In the case of Sumat Prasad Jain v. Sheojanan Prasad , Their Lordships have held that the function of the trademark is, to give an indication to the purchaser or a possible purchaser as to the manufacture or quality of the goods, to give an indication to his eye of the trade source from which the goods come, or the trade hands through which they pass on their way to the market. They have also examined the definition of the trademark given in the Trademark Act, 1999 according to which, "Trademark" means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colour.

38. So far as other arguments of the assessee is concerned, the acquisition of the trademark is also amounts to acquisition of capital asset as the assessee has acquired enduring benefit. In this regard, we have carefully examined the provisions of Section 32 of the Income Tax Act in which the trademark was held to be a capital asset after 1-4-1998. We have also carefully perused the judgment of the Apex Court in the case of Alembic Chemical Works Co. Ltd. (supra) in which the expenditure incurred in acquisition of a trademark was held to be revenue expenditure and was allowable deduction under Section 37 of the Income Tax Act, meaning thereby, before this amendment in Section 32 of the Income Tax Act, the expenditure incurred on acquisition of trademark was considered to be revenue -expenditure in the light of the judgment of the Alembic Chemical Works Co. Ltd. v. CIT . if it is not considered to be an acquisition of a patent right in the light of the provisions of Section 35A of the Income Tax Act, the assessee is entitled either for a deduction of the entire expenditure or a revenue expenditure. If, the amendment in Section 32 is called to have a retrospective effect the acquisition of a trademark, can be also considered to be acquisition of capital asset and the assessee is entitled for depreciation. In no case, it cannot be held that the assessee is not eligible for any sort of deductions. Since we find force in the main arguments of the assessee that the acquisition of trademark amounts to acquisition of patent right and as such is eligible for deduction under Section 3 5A of the Income Tax Act. We find no justification to deliberate on other alternative argument. But, in any case, we do not find any merit in the revenue's contention that the assessee is not eligible for any deduction. We, therefore, being convinced with the findings of the Commissioner (Appeals) in this regard, confirm his order.