Interpretation of Tax Statute

INTERPRETATION OF TAX STATUTE Guided By: Dr. Qazi Usman

SUBMITTED BY: MD. ABID HUSSAIN ANSARI B.A. LL.B. (HONS.) 6TH SEMESTER 0|Page

Acknowledgement Firstly, I would like to express my profound sense of gratitude towards the almighty “ALLAH” for providing me with the authentic circumstances which were mandatory for the completion of my project. Secondly, I am highly indebted to Prof. Dr. Qazi Usman at Faculty of Law, Jamia Millia Islamia University, New Delhi for providing me with constant encouragement and guidance throughout the preparation of this project. Thirdly, I thank the Law library staff who liaised with us in searching material relating to the project. My cardinal thanks are also for my parents, friends and all teachers of law department in our college who have always been the source of my inspiration and motivation without which I would have never been able to unabridged my project. My father, a lawyer with large access to books of value has been of great help to me. Without the contribution of the above said people I could have never completed this project.

Mohd. Abid Hussain Ansari B.A.LL.B (Hons) 6th Semester 3rd Year 1|Page

Table of Contents 1. Introduction to Interpretation of Statutes……………………………………………..7 2. Rules of Interpretation: Historical Perspective……………………………………...10 3. Cardinal Rules of Interpretation…………………………………………………….12 4. Interpretation of Tax Statute…………………………………………………….......15 5. Cardinal Rules for interpretation of taxing statutes…………………………………16 6. Golden Rule: Doctrine of purposive construction………………………………..…18 7. Rule of harmonious construction……………………………………………………19 8. Doctrine of „Reading Down‟………………………………………………………..19 9. Legislative response....................................................................................................20 10. Rule of beneficial construction……………………………………………………...23 11. Charging sections to be strictly construed while benevolent and procedural sections should be liberally construed………………………………………………………..24 12. Mischief rule (Heydon‟s case)………………………………………………………25 13. Construction of penal provisions……………………………………………………26 14. Rule of „ejusdem generis‟ or noscitur a sociis………………………………………28 15. Rule of „expressio unius est exclusio alterius‟……………………………………...28 16. External aids to interpretation……………………………………………………….29 17. Generalia Specialibus Non Derogant: General provisions must yield to the special provision…………………………………………………………………………….30 18. Where there is a conflict between two statutes………………………………...........31 19. Mimansa Rules of Interpretation……………………………………………………32 20. Miscellaneous……………………………………………………………………….33 21. Doctrine of Stare Decisis and Uniformity of construction of Precedents: Doctrine of Stare Decisis……………………...…………………………………………………35 22. High Court decisions: Whether binding in nature and binding on whom………….35 23. Position in regard to different Benches of the same High Court………...………….36 24. Whether decision of a High Court extends beyond its territorial jurisdiction…...….37 25. When a precedent ceases to be binding……………………………………………..38 26. Obiter dicta are not binding…………………………………………………………38 27. Present Position in India…………………………………………………………….39 28. Conclusion…………………………………………………………………………..41 29. Bibliography………………………………………………………………………...43

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List of Cases 1. Seaford Court Estates Ltd. v. Asher 2. Ispat Industries Ltd. v. Commissioner of Customs 3. State of Andhra Pradesh v. Nagoti Venkataramana 4. Secretary, H.S.E.B v. Suresh & Ors Etc. 5. Menaka Gandhi v. Union of India 6. Calcutta Jute Manufacturing Co. v. Commercial Tax officer 7. CWT v. Hashmatunnisa Begum 8. CIT v. T.V. Sundaram Iyyengar 9. CIT v. Motors & General Stores Ltd. 10. CIT v. Elphinstone Spg & Wvg Mills Co Ltd 11. Cape Brandy Syndicate v. IRC 12. CIT v. Ajax Products Ltd. 13. Citigroup Global Markets India (Pvt.) Ltd. v. Dy. CIT 14. Smt. Tarulata Shyam v. CIT 15. Brig. B. Lall v. WTO 16. CED v. R. Kanakasabai 17. CIT v. Indian Engg. & Comml. Corpn. (P.) Ltd. 18. Keshavji Ravji & Co. v. CIT 19. Grey v. Pearson 20. CIT v. Chandanben Maganlal 21. Sri Venkateshwara Timber Depot v. Union of India 22. Arun Kumar v. Union of India 23. Kedar Nath Singh v. State of Bihar 24. Maharao Saheb Shri Bhim Singhji v. Union of India 25. Sanyasi Rao v. Govt. of A.P. 26. Union of India v. A. Sanyasi Rao 27. C.B. Gautam v. Union of India 28. IRC v. Duke of Westminister 29. McDowell & Co. Ltd. v. CTO 30. Union of India v. Azadi Bachao Andolan 31. CIT v. Naga Hills Tea Co. Ltd. 32. CIT v. Contr ED v. Kanakasabai 3|Page

33. CIT v. Contr ED v. Kanakasabai 34. Gursahai Saigal v. CIT 35. Bajaj Tempo Ltd. 36. uggilal Kamlapat v. CIT 37. CIT v. Strawboard Manufacturing Co. Ltd. 38. CIT v. South Arcot District Co-operative Marketing SocietyLtd. 39. CIT v. Poddar Cement (Pvt.) Ltd. 40. CIT v. Shaan Finance (Pvt.) Ltd 41. CIT v. Vegetable Products Ltd 42. Gannon Dunkerly & Co. Ltd. v. CBDT 43. arnail Singh v. ITO 44. CIT v. Gangaram Chapolia 45. J 46. CIT v. Ram Rup Kishan 47. J.M. Shah v. ITO 48. CIT v. Raj Kumar 49. Sole Trustee, Loka Shikshana Trust v. CIT 50. Chunnilal Onkarmal (P.) Ltd. v. UOI 51. K.P. Varghese v. ITO 52. CIT v. M.K. Vaidya 53. CIT v. Export India Corporation (P.) Ltd. 54. Ganji Krishna Rao v. CIT 55. Addl. CIT v. Sarvaraya Textiles Ltd 56. CIT v. Bhandari Machinery Co. (P.) Ltd. 57. State of Travancore, Cochin v. Bombay Company Ltd. 58. CWT v. Yuvraj Amrinder Singh 59. B.R. Sound-n-Music v. O.P. Bhardwaj 60. CIT v. Shahzada Nand and Sons 61. UOI v. Indian Fisheries (P.) Ltd., 62. CIT v. Shambulal Nathalal & Co 63. Jaswant Trading Co. v. CIT 64. Hukumchand Mills Ltd v. State of MP. 65. CIT v. The Hindu ; CIT v. Srinivasan & Gopalan 66. CIT v. Godavari Sugar Mills Ltd, 4|Page

67. CIT v. Vadilal Lallubhai 68. CIT v. Ahmedbhai Umarbhai 69. Chandroji Rao v. CIT 70. CIT v. Vadilal Lallubhai. 71. ITO v. Ponnoose 72. Venkatachalam v. Bombay Dyeing & Manufacturing Co Ltd. 73. Jain Bros v. Union of India 74. CIT v. Murlidhar Jhawar & Purna Ginning & Pressing Factory 75. Nagappa v. CIT 76. T.N.K. Govindraju Chetty & Co. (P) Ltd. v. CIT 77. Peirce Leslie & Co. v. CIT 78. East India Commercial Co. Ltd. v. Collector of Customs 79. K.N. Agrawal v. CIT 80. State of A.P. v. CTO 81. CIT v. Thana Electricity Supply Ltd. 82. CIT v. Hari Nath & Co. 83. Super Spg. Mills Ltd. v. CIT 84. Koduru Venkata Reddy v. LAO 85. Sundarjas Kanyalal Bhatija v. Collector 86. Patil Vijaykumar v. UOI 87. Benoy Kumar Sahas Roy Case 88. CIT v. Deepak Family Trust No. 1 89. CIT v. Alcock Ashdown & Co. Ltd. 90. Sarupchand Hukamchand, In re 91. CIT v. B.R. Constructions 92. Mohandas Issardas v. Santhanam 93. Kanai Lal v. Paramnidh 94. S. A. Venkataraman v. The State 95. Tej Kiran Jain v. N. Sanjeeva Reddy 96. Narshima Rao v. State (Central Bureau of Investigation) 97. Ramavtar Budhaiprasad v. Assistant Sales Tax Officer 98. Forest range Officer v. Khushboo Enterprise 99. VemmaReddy Kumarsawmy Reddy v. State of Andhra Pradesh 100.

Shree Sajjan Mills Ltd. v. CIT 5|Page

101.

Qwality Ice Cream Co v. Sales-tax Officer, New Delhi,

102.

Hira Lal Ratanlal v. Sales Tax Officer, Kanpur

103.

Commissioner of Income Tax, Central Calcutta v. National Taj Traders

104.

Ramavtar Budhaiprasad v. Assistant Sales Tax Officer

105.

Commissioner of Income Tax v. Indo Mercantile Bank Ltd

106.

M. Narayanan Nambiar v. State of Kerala

107.

Kesavananda Bharati v. State of Kerala

108.

CIT v. T.V. Sundaram Iyyengar

109.

Bengal Immunity Co. Ltd. v. State of Bihar

110.

CIT v. Sodra Devi

111.

National Agricultural Co-operative Marketing Federation of India v. Union of India

112.

Jawaharmal v. State of Rajasthan

113.

S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India & Anr.

114.

Rainbow Steels Ltd. And Anr v. Commissioner of Sales Tax

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Introduction to Interpretation of Statutes “The essence of law lies in the spirit, not its letter, for the letter is significant only as being the external manifestation of the intention that underlies it” Salmond Interpretation means the art of finding out the true sense of an enactment by giving the words of the enactment their natural and ordinary meaning. It is the process of ascertaining the true meaning of the words used in a statute. The Court is not expected to interpret arbitrarily and therefore there have been certain principles which have evolved out of the continuous exercise by the Courts. These principles are sometimes called „rules of interpretation‟. The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used. As stated by SALMOND, "by interpretation or construction is meant, the process by which the courts seek to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed." Interpretation is as old as language. Elaborate rules of interpretation were evolved even at a very early stage of the Hindu civilization and culture. The importance of avoiding literal interpretation was also stressed in various ancient text books – “Merely following the texts of the law, decisions are not to be rendered, for, if such decisions are wanting in equity, a gross failure of Dharma is caused.” Interpretation thus is a familiar process of considerable significance. In relation to statute law, interpretation is of importance because of the inherent nature of legislation as a source of law. The process of statute making and the process of interpretation of statutes are two distinct activities. In the process of interpretation, several aids are used. They may be statutory or nonstatutory. Statutory aids may be illustrated by the General Clauses Act, 1897 and by specific definitions contained in individuals Acts whereas non-statutory aids is illustrated by common law rules of interpretation (including certain presumptions relating to interpretation) and also by case-laws relating to the interpretation of statutes. Lord Denning in Seaford Court Estates Ltd. v. Asher, “English Knowledge is not an instrument of mathematical precision… It would certainly save the judges from the trouble if the acts of parliament were drafted with

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divine precision and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold hand and blame the draftsman…” It is not within the human powers to foresee the manifold permutations and combinations that may arise in the actual implementation of the act and also to provide for each one of them in terms free from all ambiguities. Hence interpretation of statutes becomes an on-going exercise as newer facts and conditions continue to arise. It is a well-established fact that the legislature is highest law making body and the court is merely an interpreter of the law. But actually the fact is by interpreting the law the court can make comprehensive changes in the actual implementation and overall maneuver of the law. This can be easily be gathered by analyzing the statutory interpretation made by Indian judiciary and its effect on India and its citizens as a whole. The living example of such effect is interpretation of Part III (Fundamental Rights) of Indian Constitution and especially Article 211, wider and liberal interpretation of this article by the Hon‟ble Supreme Court of India has granted many fundamental beneficial rights to the citizens of the country2 and even ensured actual execution of these rights by liberally interpreting the concept of locus standi3 with further evolution of Public Interest Litigation through which any public spirited person can file a petition on behalf of those who has no access to Court. Such evolutions with an important art of interpretation have ensured principles of rule of law and equal justice or justice at door step in the developing country like India. But here it is important to mention that the manner and expansion of interpretation by judiciary has been criticized by many and termed as „over judicial activism‟ with interference in the field of legislature. This point has been discussed in detail in the subsequent submission. Moving further, to understand everything about interpretation which has been gradually evolved in modern context from ancient Indian rules with the help of follows up of different rules/doctrines in different situations which has arisen for different statutes. In light of this evolution, the utmost important aspect to understand for us is the meaning of term „statute, the very first term on which emphasis of the whole submission lies. 1

Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law (Court interpreted procedure needs to be just) 2 Right to Livelihood, Right to have pollution free environment and many other such rights has been evolved as part of right to life under Article 21. 3 The right of a party to appear and be heard before a court

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The word ‘Statute’ generally is defined as the written will of the legislature solemnly expressed according to the forms necessary to constitute it the law of the State.4 Normally, the term denotes personification of authoritative blueprint and words used in the same constitute part of law. These blueprints are chief source of law which is known as legislation. The other sources are precedents and customs. Each of these sources finds its expression in a language or words used by authorities.5 Many times the use of language in the legislation even does not carry the clear cut meaning in dictionaries. It contains many alternative meanings applicable in different contexts and for different purposes so that no clear field for the application of a word becomes identified. In such a situation, importance of interpretation comes into picture. For proper and healthy application of law, it is important to have uniform expansion of language or words used by the authorities/law-makers. In a case, if one judge takes the narrow view and the other the broad one, the law will connote different things for different persons and soon there will be race for window shopping for justice. Moreover, we always need to keep in mind that articulating a law is not equal to the execution of law. For the purpose of execution, proper understanding of law or statute is utmost important and better understanding is only possible through proper interpretation of the statute. It is of general believed that the law is deemed to be what the Court interprets it to be. The very concept of „interpretation‟ connotes the introduction of elements which are necessarily extrinsic to the words in the statute.6 The term interpretation is defined as the process by which the Courts seek to ascertain the intent of the Legislature through the medium of the authoritative form in which it is expressed. As everyone knows, administration of justice by Court is being conducted according to the law and law requires having some rules of interpretation to ensure just and uniform decisions. The art of correct interpretation only depend on the ability to read what is stated in plain language, read between the lines, read „through‟ the provision, examining the intent of the Legislature and call upon case laws and other aids to interpretation.7 Such art as popularly known as the rules of interpretation has been evolved in about all legal jurisprudence. Such an evolution is a result of many considerations starting from general 4

Farlex, ‘Statute’ (The Free Dictionary) accessed on 21 August 2012. 5 Avtar Singh, Introduction to Interpretation of Statute (2nd ed., LexisNexis Butterworth’s, Nagpur 2007) 5 6 Wharton’s Concise Law Dictionary (15th ed., Universal Law Publishing Pvt. Ltd., New Delhi 2009) 551 7

Deepak Jain, ‘Interpretation of Statute: A treaties’ (April 2010) AIFTP Journal

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scope, purpose of the legislation mingled with intention of legislatures and from the legal rights of the parties independent of the instrument or law in question to many other relevant particulars. In simple words, this evolution is a logical process which is adopted for determining the true sense of any form of language, the sense which their author intended to convey and to ensure justice as the end result. The present assignment entry focuses upon cardinal rules and general relevance of interpretation of statutes and interpretation of tax statutes as being applied in Indian context and has been evolved by Indian Judiciary with the passage of time. The enumeration below is being substantiated with the relevant case laws of Indian jurisprudence but before that, it is important to analyze historical aspect of rules of interpretation and the same has been enumerated in the following part. RULES OF INTERPRETATION: HISTORICAL PERSPECTIVE Indian historical rules of interpretation of statute have not got the due recognition in the present study of rules of interpretation. Many few peoples are aware about the existence of such rules even in India. But in actual, there are many modern rules whose foundation has been laid down in ancient rules of interpretation. These ancient Indian rules are popularly known as „Mimamsa Rules of Interpretation.‟ These rules are primarily for Vedanta8 and have contributed a lot in formulation and development of Hindu Law. The basic aim of these rules is to give interpretation of the Vedas, the earliest scriptures of Hinduism, and to provide a philosophical justification for the observance of Vedic rituals. A basic discussion on six important Mimamsa rules is as follow: 1. Upakarma Upasamhara This rule is basically to ensure unity of thought in the beginning as well as in the end and it further indicates that statute should be read as a whole. There is one basic purpose or intent which runs through the whole Statute. Moreover, in the very first instant, interpreter should look into preamble and epilogue at the first9;

8

It represents the philosophical portion of the ancient scriptures of India. Satyanarayan Venktaraman ‘Upangas’ (Vedavichara); https://vedavichara.com/the-vedas/vedangas-thelimbs-of-vedas/97.htmlaccessed on 22 August 2012 9

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2.

Abhyasa

This rule is an indication of repetitive process, meaning thereby that what has been repeatedly said is because of legislature‟s continuous effort to support his aim;

3. Apurvata This rule is an indication of novelty or uncommon nature of the proof. It is to see by this rule whether there is something novel to be achieved by the legislation10;

4. Phala This rule suggests that there is need to go through word to word of the statute because each word has specific thing to add on or to indicate upon and the result achieved after doing all this need to be clearly gone through to achieve a correct conclusion;

5. Atharvada, This rule indicates help of external aids is useful to interpret any statute. This rule is widely followed in the modern context;

6. Upapatti This is the last but most important rule which in literal sense is known as logical deduction. This rule has its importance in case of ambiguity in the enactment. These rules of interpretation are India‟s one of great achievements, but regrettably few people in our country are aware about the great intellectual achievements of ancestors and the intellectual treasury they have bequeathed upon India. As rightly stated by Justice Katju11 that Maxwell and Craies usually get quoted on issue of Interpretation but Indian indigenous system of interpretation is not been quoted even by Indian Lawyers in Indian Courts. Recently one of the Supreme Court judgments, Ispat Industries Ltd. v. Commissioner of Customs12, has refereed these rules while deciding an appeal under the Customs Tariff Act, 1975.

10

M.K. Venkatarama Iyer, ‘Contribution of Bharati Tirtha and Vidyaranya to Development of Advaitic Thought’ (Srisharada)http://www.srisharada.com/Vidyaranyar/ChapterV.htm accessed on 22 August 2012. 11 Markandey Katju is the Chairman, Press Council of India. He was formerly a Judge of the Supreme Court of India 12 (2006)12 SCC 583

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CARDINAL RULES OF INTERPRETATION The rules of interpretation are soul of arid body of legislation. With respect to modern principles of interpretation, Indian Courts have evolved number of rules of interpretation which can help them to resolve any sort of difficulty. These rules have major role to play in proper and beneficial implementation of law under the garb of different rule, expressions of interpretation. But before detailed discussion upon rules and expressions, it is important to keep in mind that to interpret any statute, three basic rules or processes are to be followed. These processes are: 1. Primary Rule of Interpretation This rule has following steps involved which an interpreter has to follow:

i.

Read and analyze a section;

ii.

Ascertain the primary meaning of the words used;

iii.

Ascertain the grammatical, literal and plain meaning of the words used in the section.

This rule has further been explained in detail in the name of „literal rule of interpretation‟ in the subsequent submission. 2. Secondary Rule of Interpretation

This rule is basically states about application of internal and external aids to ensure proper interpretation of statute. Application of Internal and External aids has been explained in the subsequent submission.

3. Final Rule of Interpretation Interpretation of every statute must be based upon the aforesaid primary and secondary rules. But there may be a situation when conflict may arise on simultaneous application of above rules, to avoid such conflict, final rule i.e. principle of harmonious construction come into picture. This rule has further been explained in the subsequent submission. Every effort

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should be made to ensure that all the primary and secondary rules are simultaneously satisfied. Here, it is also to be focus that certain specific statutes have specific pattern of Interpretation as enumerated in numerous case laws. To illustrate this point, following submission is important. I.

For Penal Statute, it is always need to have a strict interpretation13 and with respect to mens rea it is always presumed that it is required to prove in each case unless the statute specifically provides for the absence of the same; In the case of State of Andhra Pradesh v. Nagoti Venkataramana14, it has been held by the Supreme Court that in the interpretation of penal provisions, strict construction is required to be adopted and if any real doubt arises, necessarily the reasonable benefit of doubt would be extended to the accused.

II.

For Beneficial Statute such as Statutes related to Industry/workmen, it is always important to have beneficial liberal interpretation15. Presently, in the period of social welfare legislation, beneficial interpretation has become important tool of interpretation of statute. In the case of Secretary, H.S.E.B v. Suresh & Ors Etc.16 it has been held by the SC that the Contract Labour Regulation Act being a beneficial piece of legislation as engrafted in the statute book, ought to receive the widest possible interpretation in regard to the words used and unless words are taken to their maximum amplitude, it would be a violent injustice to the framers of the law.

III.

For Constitution, the basic spirit in form of social justice, equity fraternity etc. should run throughout the interpretation17 and the interpretation of the Constitutional provisions should be harmonious and liberal;

13

M. Narayanan Nambiar v. State of Kerala, 1963 SCR Supl. (2) 724 1996 (6) SCC 409 15 Bajaj Tempo Ltd. v. CIT, 196 ITR 188 (SC) 16 1999 3 SCC 601 17 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 14

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In the Case of Menaka Gandhi v. Union of India18, the Supreme Court widened the protection of life and liberty contemplated by Article 21 of the Constitution. The Court ruled that the mere existence of an enabling law was not enough to restrain personal liberty. Such a law must also be just, fair and reasonable. This wider interpretation ensured inclusion of many rights under Article 21.

IV.

For Taxing Statute, Statutes imposing taxes or monetary burdens are to strictly construe. The logic behind this principle is that imposition of taxes is also a kind of imposition of penalty which can only be imposed if the language of the statute clearly says so;19 in many instances, liberal or beneficial interpretation has an important role to play in taxing statute‟s interpretation. In the case of, Calcutta Jute Manufacturing Co. v. Commercial Tax officer20 the Supreme Court held that in case of interpreting a taxing statute, one has to look into what is clearly stated. There is no room of searching the intentions, presumptions.

Apart from above brief submissions on interpretation of different statutes, many types of Internal and External aids are used for the purpose of interpretation of statute. The term internal aid is defined as interpretation of statute with those means which are found within the text of the statutes.21 For example: Preambles, Definitional sections and clauses, Provisos, Explanations etc.

18

AIR 1978 SC 597 CIT v. T.V. Sundaram Iyyengar (1975) 101 ITR 764 (SC) 20 AIR 1997 SC 2920 21 Law Commission , A continuum on the General Clauses Act, 1897 with special reference to the admissibility and codification of external aids to interpretation of statutes {Law Comm. No. 6(3)(79)/2002-LC(LS), 2002} para 8 19

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Interpretation of Tax Statute In the case of taxing statutes, as in different type of statutes, there are certain bedrock principles on which the interpretation or construction of the particular statute is done by the Courts and Tribunals; and the tax practitioners are required to have the knowledge of these basics in their catalogue to understand the statute and implications of its provisions. Some important aspects relating to „Interpretation‟ of Taxing Statutes are dealt herein. „Interpretation‟ and „Construction‟ – Meaning of Statutes are embodiments of authoritative formulae and the very words which are used constitute part of law. The interpretation or construction means the process by which the Courts seek to ascertain the intent of the Legislature through the medium of the authoritative form in which it is expressed. The law is deemed to be what the Court interprets it to be. The very concept of „interpretation‟ connotes the introduction of elements which are necessarily extrinsic to the words in the statute. Though the words „interpretation‟ and „construction‟ are used interchangeably, the idea is somewhat different. The term „construction‟ has been explained in CWT v. Hashmatunnisa Begum,22 to mean that something more is being got out in the elucidation of the subject-matter than can be got by strict interpretation of the words used. Judges have set themselves in this branch of the law to try to frame the law as they would like to have it. Further, L.J. Denning in Seaford Court Estates v. Asher23, speaks as hereunder: “A Judge must not alter the material of which the Act is woven but he can and should iron out the creases. When a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of the Parliament and then he must supplement the written words so as to give force and life to the intention of the Legislature.” The art of correct interpretation would depend on the ability to read what is stated in plain language, read between the lines, read „through‟ the provision, examining the intent of the Legislature and call upon case laws and other aids to interpretation.

22 23

[1989] 176 ITR 98 (SC) [1949] 2 All ER 155

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Cardinal Rules for interpretation of taxing statutes Rule of literal interpretation This is the most widely used Rule of Interpretation in taxing statutes. Some decisions are given hereunder. In case of CIT v. T.V. Sundaram Iyyengar,24 it was held that if the language of the statute is clear and unambiguous, the Court cannot discard the plain meaning, even if it leads to an injustice. In case of CIT v. Elphinstone Spg & Wvg Mills Co Ltd.25, and CIT v. Motors & General Stores Ltd.26, it was held by the court of law that No tax can be imposed on the subject without words in the Act clearly showing an intention to lay a burden upon him. In other words, the subject cannot be taxed unless he comes within the letter of the law. The argument that he falls within the spirit of the law cannot be availed by the Department. Rowlatt J. in case of Cape Brandy Syndicate v. IRC27, approved in case of CIT v. Ajax Products Ltd.28, “In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing to be implied. One can only look at the language used.‟” Thus, when the language of a taxing statute is clear, if an assessee falls within the four corners of the statute, he is to be taxed; if not, no tax is to be levied. In case of Citigroup Global Markets India (Pvt.) Ltd. v. Dy. CIT29, In this case payment of salary was made and the provisions of section 192 were applicable. The words „at the time of payment‟ in section 192(1) was interpreted where the ITAT held that the literal meaning is that, it is a point of time when the assesse actually remits the amount either in cash or through 24

[1975] 101 ITR 764 (SC) 40 ITR 142 (SC) 26 66 ITR 692, 699-700 (SC) 27 [1921] 1 KB 64 28 [1965] 55 ITR 741 (SC), (p. 747) 29 [2009] 29 SOT 326 (Mum) 25

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bank which is contemplated as actual payment in normal commercial practice. Under section 192 TDS is to deducted at the time of the payment and not when the salary is accrued or credited to the account of the payee. The tax statutes need to be strictly interpreted and the language used by the Legislature should not be unnecessarily stretched in the process of finding the intention of the Legislature. [TDS needs to be deducted u/ss. 194C, 194E, 194H and 194-I at the time of credit or payment whichever is earlier]. It was held that the assessee‟s statutory obligation was to deduct the tax at the time of payment or remittance of the salary and, hence, the claim of the expenditure towards the salary payment was not hit by section 40(a) (iii) in the circumstances of the instant case. In case of Smt. Tarulata Shyam v. CIT30, it was held by the court that there is no scope for importing into the statute words which are not there. Such importation would be, not to construe, but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by Legislation and not by judicial interpretation. Also in case of Brig. B. Lall v. WTO31, The question was about the application of section 16A of the Wealth-tax Act, which empowers the WTO to refer the valuation of any property to the VO of the Government to ascertain the true market value of the property on the date of valuation if he feels that the value declared by the assessee was low. It can be done only during the pendency of a case before the WTO. In this case it was the opinion of the audit that it suspected the value declared to be low and on the basis of such advice, the WTO referred the valuation to the departmental valuer. Since at the time of such reference no case was pending before the WTO, on a writ petition filed by the assessee, it was held that the WTO had no jurisdiction to make such reference. He cannot be allowed to make roving enquiry to make any enhancement in the value of the property. Since the provisions of section 16(1) apply only where a case is pending, it cannot be read for reopening the completed assessment after receipt of the valuation report which was to be received. It rejected the suggestion that although no case was pending, it would come to be so on reopening of the reassessment. The Court disagreed with the said proposition as it would mean changing the condition for completing the assessment to the condition for reopening the completed assessment, which would mean addition of certain words in the statute which

30 31

[1971] 108 ITR 345 (SC) [1981] 127 ITR 308/ [1980] 4 Taxman 559 (Raj)

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cannot be allowed in interpreting the statute as was held by the Supreme Court in CED v. R. Kanakasabai32. In case of CIT v. Indian Engg. & Comml. Corpn. (P.) Ltd.33, the court observed that besides salary, certain commission as percentage of sales was paid to the directors, and the revenue sought to disallow the same being in excess of the provision contained in section 40(a) (v). It was held that the commission paid did not partake of the character of salary, not it partook of the character of perquisite. It is not possible to read something in the provision which, by considering the wordings used, is outside the scope of the provision. The Court is not required to legislate which is the function of the Legislature. In case of Keshavji Ravji & Co. v. CIT34, As long as there is no ambiguity in the statutory language, resort to any interpretative process to unfold the legislative intent becomes impermissible. Golden Rule (Doctrine of purposive construction) If the strict interpretation of the taxing statute is likely to lead to a manifest absurdity, then the golden rule of construction implies that the meaning of the words should be so affected that such an absurdity is avoided. The application of this rule is rather limited in the realm of construction of taxing statutes, since the literal rule would gain precedence over the golden rule and it is often remarked that equity and taxation are strangers: held in case of Grey v. Pearson35. Here, it is important to analyze that in Indian Context, there is hardly any example where a statute have been declared void for sheer vagueness , although theoretically it may be possible to reach such a conclusion in case of absolute intractability of the language used or when the language is absolutely meaningless but application of this pattern of interpretation with the following list of rules prevent redundancy of a statute.

32

[1973] 89 ITR 251 (SC) at page 257 [1993] 201 ITR 723/68 Taxman 39 (SC) 34 [1990] 49 Taxman 87 (SC) 35 [1857] 6 HL Cas. 61 33

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This principle has further been defined by the Court itself as if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid an interpretation which would reduce the legislation to futility and should rather accept the bolder interpretation based on the view that Parliament would legislate only for the purpose of bringing about an effective result. At last, Statute should be interpreted as effective as workable as is possible while lining with following rules. Rule of harmonious construction In case of In case of CIT v. Chandanben Maganlal36, When any provision of a taxing statute is interpreted, it must be so constructed that the meaning of such provision must harmonise with the intention of the Legislature behind the provision in particular and the enactment in general. However, this would always be subject to the fact that the particular provision, or even the entire enactment, should not be held unconstitutional. Doctrine of „reading down‟ Resort to reading down is done where a legal provision; read literally, seems to offend the Constitutional provisions concerning fundamental rights or is found to be outside the competence of the particular Legislature. Some relevant decisions are given hereunder. The application of doctrine of reading down is done where a legal provision; read literally, seems to offend the Constitutional provisions concerning fundamental rights or in case of other statutory enactment, it is found to be outside the competence of the particular Legislature. In case of Sri Venkateshwara Timber Depot v. Union of India37, The Court construes the provision in question in a limited sense to ensure that its meaning falls within the parameters of constitutionality or is intra vires the powers of the Legislature in question (generally in the case of State Legislatures).

36 37

[2002] 120 Taxman 38 (Guj) [1991] 189 ITR 741/155 Taxman 308 (Ori)

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Also in case of Arun Kumar v. Union of India38, it was held that Reading down a provision is based on the premise that to sustain the law by interpretation is the rule; to add further, as held in Kedar Nath Singh v. State of Bihar39. “The Legislature is presumed to be aware of its limitations and is also attributed an intention not to overstep its limits.” The Supreme Court in case of Arun Kumar, was required to consider the validity of rule 3 of the Income-tax Rules, 1962 as amended vide Notification No. S.O. 940 (E), dated September 25, 2001. The substituted rule revised the method of computing valuation of perquisites in the matter of rental accommodation provided by employers to the employees. It was contended by the writ petitioner that rule 3 is invalid on the ground that the amended rule does not provide for giving an opportunity to the assessee to convince the A.O. that no concession is given by the employer to the employee in respect of accommodation provided and, hence, rule 3, has no application, as the amended rule is arbitrary, discriminatory or ultra vires article 14 and inconsistent with the provisions of section 17(2) (ii). The Court did not accept the petitioner‟s contention and has said that (amended) rule 3 is in the nature of a machinery provision and applies only to cases where concession in the matter of rent is involved, respecting any accommodation provided by an employer to his employee. The Court held that the assessee (employee) could contend that there is no concession in the matter of accommodation provided by the employer to the employee and on that basis, claim that rule 3 is not applicable The doctrine of reading down can be applied if the statute is silent, ambiguous or allows more than one interpretation. But where it is express and clearly mandates to take certain actions, the function of the Court is to interpret it plainly and declare intra vires or ultra vires without adding, altering or subtracting anything therein. Krishna Iyer, J., in Maharao Saheb Shri Bhim Singhji v. Union of India40, has observed:“. . . reading down meanings of words with loose lexical amplitude is permissible as part of the judicial process. To sustain a law by interpretation is the rule. Courts can 38

[2006] 155 Taxman 659 (SC) AIR 1962 SC 955 40 AIR 1981 SC 234; (p. 242) 39

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and must interpret words and read their meanings so that public good is promoted and power misuse is interdicted. As Lord Denning said: „A judge should not be a servant of the words used. He should not be a mere mechanic in the power house of semanties‟. . . .” In Sanyasi Rao v. Govt. of A.P.41, The constitutional validity of sections 44AC and 206 of the Income-tax Act, was challenged. These sections were introduced in the Income-tax Act by the Finance Act, 1988. Section 44AC (which had since been deleted with effect from April 1, 1993 by the Finance Act, 1992) determined the profits and gains of a buyer from the business in trading in certain specified goods at a given percentage of the purchase price; and section 206C deals with collection and recovery of tax relating thereto. It was contended, inter alia, that section 44AC is an arbitrary and discriminatory provision, the measure of profits and gains prescribed by that section constitutes an unreasonable restriction upon the assessee‟s fundamental rights guaranteed by sub-clause (g) of clause (1) of article 19 of the Constitution; and that there ought to be income, before tax is levied. The amount collected at source under section 206C is related to the income component of the purchase price. In its judgment, the High Court held that the legislative policy of fixing the rate of profit, as has been done in section 44AC, had to be regarded as in the nature of unreasonable restriction in cases of some of the assessees. Therefore, section 44AC has to be regarded as violative of Article 19(1) (g) in the cases of some of the petitioners before the Court. The High Court then considered whether anything can be done to uphold the validity of section 44AC and the court found the solution in “reading down the provision”. The reading down was to the extent that section 44AC shall be read not as an independent provision but as an adjunct to and as explanatory to section 206C; and that it does not dispense with regular assessment altogether with the result that after the tax is collected in the manner provided by section 206C, a regular assessment would be made where the profit and gain of business in goods in question would be ascertained in accordance with sections 28 to 43C. The High Court‟s decision was upheld by the Supreme Court in Union of India v. A. Sanyasi Rao42, saying that section 44AC is a valid piece of legislation and is an adjunct to and explanatory to section 206C.

41 42

[1989] 178 ITR 31 (AP) [1996] 219 ITR 330 (SC)

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Legislative response While the debate about the constitutionality of section 44AC was on, the Government, realising the deficiencies of section 44AC, omitted section 44AC by the Finance Act, 1992 w.e.f. assessment year 1993-94. However section 206C continued as an aid to collect tax at source from the buyers of the products/items covered in the section. The Statute must be read as whole in its context. This one is the very first rule to start with the interpretation of Statute (as even been mentioned in historical perspective) in Indian Context. It has been rightly defined in the case of Reserve Bank of India v. Peerless General Finance and Investment Company limited that the art of interpretation depend on the text and the context. These both are the bases of interpretation in Indian jurisdiction. One may well say if the text is the texture, context is what gives the color. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute- maker, provided by such context, its scheme, the sections, clauses, phrases and words may take color and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be interpreted in isolation. Statutes have to be interpreted so that every word has a place and everything is in its place. In C.B. Gautam v. Union of India43, The Court had to deal with section 269 UD of the Income-tax Act, which did not contain any provision for an opportunity to the parties to be heard before an order for compulsory purchase of the property under Chapter XX-C of the Income tax Act was made. Therefore, the requirement of an opportunity to show the cause before an order for compulsory purchase is made by the Central Government must be read into the provisions of Chapter XX-C, otherwise it would have adverse civil consequences for the parties affected. The provisions were later amended to incorporate the principle of natural

43

[1992] 199 ITR 530 (SC)

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justice vide sub-section (1A) of section 269UD by the Finance Act, 1993 from November 17, 1992. Rule of beneficial construction In cases where there are two interpretations possible, the one which is beneficial to the assessee would be preferred. This principle was laid down in a landmark Judgment in IRC v. Duke of Westminister44, wherein Tomlin LJ., stated that an assessee may arrange his affairs within the bounds of the law so as to minimize the incidence of tax. In McDowell & Co. Ltd. v. CTO45, The Apex Court clamped down on the liberal construction and the pendulum swung to the other extreme, as the Court made fine distinctions between tax evasion, tax avoidance and tax planning and virtually rendered the Westminister Principle nugatory. Here the Court followed the interpretation that the letter and spirit of the law must be followed. In this post- McDowell era, the department generally got favourable verdicts and a lot of assessees suffered due to the Courts coming down heavily on tax avoidance measures, which were equated with tax evasion. In Union of India v. Azadi Bachao Andolan46, The case dealt with conflicts between the Indo- Mauritius Double Tax Avoidance Agreement and the Income-tax Act, 1961, it was held that an assessee was entitled to arrange his affairs so as to minimize the incidence of tax, thus, partly confirming the Westminister Principle. In CIT v. Naga Hills Tea Co. Ltd.47, and in CIT v. Contr ED v. Kanakasabai48, it was held that where a literal construction would defeat the obvious intention of the legislation and produce a wholly unreasonable result, the court must “do some violence to the words” and so achieve that obvious intention and produce a rational construction. If the interpretation of a fiscal enactment is open to doubt, the construction most beneficial to the subject should be adopted.

44

1936 AC 1 [1985] 154 ITR 148 (SC) 46 [2003] 263 ITR 707 (SC) 47 89 ITR 236, 240 (SC) 48 89 ITR 251, 257 (SC) 45

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Charging sections to be strictly construed while benevolent and procedural sections should be liberally construed This is a very important and practical rule of interpretation and generally resorted to while interpreting the sections pertaining to incentives, exemptions and deductions where the spirit is to promote exports, increase earnings in foreign convertible exchange, promote industrialization, infrastructure development etc. A provision for appeal should also be liberally construed. In CIT v. Contr ED v. Kanakasabai49, held that a provision for exemption or relief should be construed liberally and in favour of the assessee even if it results in his obtaining “a double advantage”. In Gursahai Saigal v. CIT50, it was decided by the court of law that those sections which impose the charge or levy should be strictly construed; but those which deal merely with the machinery of assessment and collection should not be subjected to a rigorous construction but should be construed in a way that makes the machinery workable. In Bajaj Tempo Ltd.51: A provision in a taxing statute granting incentives for promoting growth and development should be construed liberally, and since as provision for promoting economic growth has to be interpreted liberally, the restriction on it too has to be construed so as to advance the objective of the provision and not to frustrate it. While interpreting the various provisions, the Court must not adopt a hyper technical approach and apply cut and dry formula. A pragmatic approach should be adopted so that the object of the introduction/insertion of a particular provision could be achieved. Similar views have been expressed in Juggilal Kamlapat v. CIT52, CIT v. Strawboard Manufacturing Co. Ltd.53 and CIT v. South Arcot District Co-operative Marketing Society Ltd.54 In CIT v. Poddar Cement (Pvt.) Ltd.55, it was observed by the court that where there are two possible interpretations of a particular section which is akin to a charging section, the interpretation which is favourable to the assessee should be preferred while construing that 49

Ibid 48 48 ITR (SC) 1 51 196 ITR 188 (SC) 52 [1969] 73 ITR 702 (SC) 53 [1989] 177 ITR 431 (SC) at page 434 54 176 ITR 117 (SC) at page 119 55 [1997] 226 ITR 625 (SC) 50

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particular provision. Reiterating the same view, in the case of CIT v. Shaan Finance (Pvt.) Ltd.56, it has been held that in interpreting a fiscal statute, the Court cannot proceed to make good the deficiencies if there be any. The Court must interpret the statute as it stands and in case of doubt, in a manner favourable to the taxpayer. In CIT v. Vegetable Products Ltd.57, It has been held that if the Court finds that the language of taxing provision is ambiguous or capable of more meaning than one, then the Court has to adopt the interpretation which favours the assessee. In Gannon Dunkerly & Co. Ltd. v. CBDT58, The object of section 80-O is to encourage the export of Indian Technical Know-how and augmentation of foreign exchange resources of the country and hence a superficial and narrow interpretation can only defeat the benevolent purpose behind the provision of section 80-O. Mischief rule (Heydon’s case) This rule is one of the canons of statutory interpretation and its basis lies in the four aspects outlined below: a. What was the common law prior to the enactment of the statute? b. What was the defect or mischief which the common law failed to rectify? c. What remedy did the Legislature provide by way of the statute enacted? d. What was the legislative intent behind such remedy? The application of the mischief rule would generally be done very rarely in taxing statutes, since a Court would have to exhaust all the other modes and aids to interpretation before applying the „mischief rule‟. This rule carries an importance in instances of ambiguity. Thus where a law is clear and can have only one meaning, this rule generally has no application.59 But in some instances, where the customary meaning of the language falls short of the basic purpose of the enactment, a more comprehensive meaning may be ascribed to the words used, provided they are fairly inclined of it. 56

[1998] 231 ITR 308 (SC) [1973] 88 ITR 192 58 159 ITR 162 (Bom) 59 Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 57

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For the application of this rule four things are considered in the first instance60:

1. What was the common law before the making of the Act? 2. What was the Mischief and defect for which law did not provide? 3. What remedy are available to cure damages? 4. The true reason of the remedy.

Applicability of this rule, resolves difficulty of interpretation in number of instances. For example, if the object of any enactment is public safety, then its working must be interpreted widely to give effect to that object. Thus in the case of Workmen‟s Compensation Act, 1923 the main object being provision of compensation to workmen, it was held that the Act ought to be so interpreted, as far as possible, so as to give effect to its primary provisions. Apart from this, there are other rules as well which are equally important for the purpose of statutory interpretation. So Denning L.J.61 once said “It would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity”.62 In backdrop of this statement, it is to keep in focus the importance of other rules of interpretation simultaneously.

Construction of penal provisions There are several penal provisions in taxation statutes and these have special rules of interpretation and notable among these are: a. strict construction b. prospective in operation and not retrospective; thus, any act which is currently not an offence cannot be made one retrospectively by amendment of a penal provision with retrospective effect; c. Presumption of mens rea (i.e., guilty intention to commit the crime) unless the statute specifically provides for the absence of the same.

60

CIT v. Sodra Devi, (1957) 32 ITR 615 (SC) Alfred Thompson “Tom” Denning was a British lawyer and judge 62 H. P. Ranina, ‘Putting life into the letter of law’ The Hindu (New Delhi, 18 February 2006) 7 61

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To illustrate, concealment of income may be presumed by the department (without mens rea) and the onus of proof lies on the assessee to show that there is no concealment. In Jarnail Singh v. ITO63 and in CIT v. Gangaram Chapolia64, it was held that to bring an act under the provisions of section 276 C, the action of the person concerned has to be a wilful attempt to evade any tax, penalty or interest chargeable or imposable under the Act. The word „wilful‟ imparts the concept of mens rea, and if mens rea is absent, no offence under this section is made out. In CIT v. Ram Rup Kishan65 and in J.M. Shah v. ITO66, it was seen that as per section 277, the intention of the Legislature in incorporating the words „and which he knows or believes to be false, or does not believe to be true‟ is quite obvious. It is that a prosecution will not follow in every case where a wrong statement is made and it will have to be judged as to whether the assessee harboured mens rea or not. In Indian jurisdiction, it is of general believe that a new statute should affect the future not the past because in general, first and strong presumptions of any law enacted for the first time or amending the enacted law, is its prospective applicability. The power of retrospective legislation does exist which is not only subject to the question of competence but is also subject to several judicially recognized limitations.67 In order to determine the validity of retrospective law the court has to take into account all relevant surrounding facts and circumstances.68 It has been held that a law will be retrospective only if the words used must expressly provide or necessarily imply retrospective operation. Retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication; there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary.69 Article.20 (1) provides the necessary protection against retrospective application of penal statute.70

63

[1989] 179 ITR 426 (P&H) [1976] 103 ITR 613 (Ori) (FB) 65 [1992] 193 ITR 129 (P&H) 66 [1996] 218 ITR 38 (Mad) 67 National Agricultural Co-operative Marketing Federation of India v. Union of India, (2003) 260 ITR 548 (SC) 68 Jawaharmal v. State of Rajasthan, AIR 1966 SC 764 69 S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India & Anr., 2006 (2) SCC 740 70 No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence 64

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But, in case of reduction in punishment by the subsequent enactment, the rule of beneficial construction requires that ex-post facto law should be applied to reduce the rigorous sentence of the previous law on the same subject. Such a law is not affected by Article 20(1) and other reasons for non-application of retrospective application will also not be applicable. Rule of ‘ejusdem generis’ or noscitur a sociis, The Rule is that the meaning of a general word is restricted by the special words appearing along with it. To illustrate: “If a man tells his wife to go to the market to buy vegetables, fruits, groceries and anything else she needs, the „anything else‟ would be taken to mean food and grocery items due to the rule of ejusdem generis and not cosmetics or other feminine accessories.” Thus, the meaning of a word must be taken by the company it keeps (Rule of noscitur a sociis). In the case of CIT v. Raj Kumar,71 regarding Deemed dividend under section 2 (22) (e) of the Income-tax Act, 1961, the word „advance‟, which appears in company of word „loan‟ was interpreted. Section 2 (22) (e) reads as “any payment by a company, not being a company in which the public are substantially interested, of any sum (whether as representing a part of the assets of the company or otherwise) [made after the 31st day of May, 1987, by way of advance or loan to a shareholder.) It was held that advance can only mean such advance which carries with it an obligation of repayment. A trade advance, which is in nature of money transacted to give effect to a commercial transaction, cannot be treated as „deemed dividend‟ falling within ambit of provisions of section 2 (22) (e). Rule of noscitur a sociis was applied. Rule of „expressio unius est exclusio alterius‟ This rule means that where there are two mutually exclusive items, the inclusion of one would implicitly mean the exclusion of the other. The above rules are the most basic rules of interpretation and the Courts use them along with certain Acts like the General Clauses Act, 1897 and the State General Clauses Act, to ascertain meanings of words not defined in the Act.

71

[2009] 181 Taxman 155 (Del.)

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External aids to interpretation The Court may also use certain external aids like works of prominent authors, dictionaries, legislative debates, etc., to interpret a statute correctly. Relevance of Finance Minister‟s speech to interpret tax statutes: The words of the statute do themselves best declare the intention of the law given. It is only if there is any ambiguity in the language, in understanding the intention of the Legislature that the aid can be taken of the proceedings in the Parliament including the aims and objects of the Act. Section 57 of the Evidence Act not only enables but enjoins the duty upon the Courts to take judicial notice of the course of proceedings in the Parliament. In Sole Trustee, Loka Shikshana Trust v. CIT72, it was held that: “if the real meaning and purpose of the words used cannot be understood at all satisfactorily reference can be made to the past history of legislation on the subject and the speech of the mover of the amendment who was, undoubtedly, in the best position to explain what defect in the law the amendment had sought to remove. If the reason given by him only elucidates what is also deducible from the words used in the amended provision, we do not see why we should refuse to take it into consideration as an aid to a correct interpretation... Interpretation of a statutory provision is always a question of law on which the reasons stated by the mover of the amendment can only be used as an aid in interpretation if we think, as I do in the instant case, that it helps us considerably in understanding the meaning of the amended law. We find no bar against such a use of the speech.” There is no bar in resorting to or referring to speech of Finance Minister. Interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible held in Chunnilal Onkarmal (P.) Ltd. v. UOI73; K.P. Varghese v. ITO74; CIT v. M.K. Vaidya75; CIT v. Export India Corporation (P.) Ltd.76; Ganji Krishna Rao v. CIT77; Addl. CIT v. Sarvaraya Textiles Ltd.78, Contrary decisions where it is held that FM‟s Speech is not admissible: In the cases of CIT v. Bhandari

72

[1975] 101 ITR 234 (SC); (p. 252) [1996] 221 ITR 459 (MP) 74 [1981] 131 ITR 597 (SC) 75 [1997] 224 ITR 186 (Kar) 76 [1996] 219 ITR 461 (P&H) 77 [1996] 220 ITR 654 (AP) 78 [1982] 137 ITR 369 (AP) 73

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Machinery Co. (P.) Ltd.79; Aswini Kumar Ghose v. Arabinda Bose80; State of Travancore, Cochin v. Bombay Company Ltd.81; CWT v. Yuvraj Amrinder Singh82; B.R. Sound-nMusic v. O.P. Bhardwaj83, it was held that: “The speeches made by the members of the House in the course of the debates are not admissible as external aids to the interpretation of a statutory provision. A statute, as passed by Parliament, is the expression of the collective intention of the Legislature as a whole, and any statement made by the individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the statute. The Statement of Objects and Reasons, seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. But those objects and reasons may or may not correspond to the objective, which the majority of members had in view when they passed it into law. The Statement of Objects and Reasons appended to the Bill should be ruled out as an aid to the construction of a statute. Strictly speaking, even the speech of the Finance Minister and Notes on Clauses do not lend support to the view taken by the Tribunal.” Noscere means to „know‟ and sociis means „association‟. Thus, Noscitur a Sociis means knowing from association. Thus, under the doctrine of “noscitur a sociis” the questionable meaning of a word or doubtful words can be derived from its association with other words within the context of the phrase. This means that where two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take, as it were, their color from each other, the meaning of the more general being restricted to a sense analogous to that of the less general.84

Generalia Specialibus Non Derogant: General provisions must yield to the special provision Generally speaking, the sections in the Act do not overlap one another and each section deals only with the matter specified therein and go no further. If a case appears to be governed by

79

[1998] 231 ITR 294 (Del.) AIR 1952 SC 369 81 AIR 1952 SC 366 82 [1985] 156 ITR 525 (SC) 83 [1988] 173 ITR 433 (Bom) 84 Rainbow Steels Ltd. And Anr v. Commissioner of Sales Tax, 1981 SCR (2) 727 80

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either of two provisions, it is clearly the right of the assessee to claim that he should be assessed under the one, which leaves him with a lighter burden. The literal meaning of the expression „Generalia Specialibus Non Derogant‟ is that general words or things do not derogate from the special. The Courts have held the expression to mean that when there is a conflict between a general and special provision, the latter shall prevail as held in the cases of CIT v. Shahzada Nand and Sons85 and UOI v. Indian Fisheries (P.) Ltd.,86, or the general provisions must yield to the special provision.

Where there is a conflict between two statutes The general rule to be followed in case of a conflict between two statutes is that a later statute abrogates the earlier („leges posteriors priores contrarias abrogant‟) and the well-known exception is that general legislations do not derogate special legislations. Partnership Act v. Income Tax Act: The above maxim was applied when the questions relating to assessments of a firm and its partners arose under the Income-tax Act, 1961 where the dissolution of the firm and its succession was held to be governed by the Special Act viz., the Income-tax Act and not the Partnership Act. The Karnataka High Court has held in the case of CIT v. Shambulal Nathalal & Co.87, that when the Legislature has deliberately made a specific provision to cover a particular situation, for the purpose of making an assessment of a firm under the Income-tax Act, there is no scope for importing the concept and the provisions of the Partnership Act. The legal position of a firm under the income-tax law is different from that under the general law of partnership in several respects. Claim as Donation under section 80G or Business Expenses under section 37 (1): In Jaswant Trading Co. v. CIT88, the Rajasthan High Court held that the provisions of section 37 are general in nature and the provisions of section 80G are specific. Applying the maxim generalia specialibus non derogant if an amount is liable for deduction under section 80G it cannot be claimed under the general provisions of section 37(1).

85

60 ITR 392 (SC) AIR 1966 SC 35 87 [1984] 145 ITR 329 (Kar) 88 212 ITR 24 (Raj): 128 CTR 306: 85 Taxman 639 (Raj.) 86

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Mimansa Rules of Interpretation In Ispat Industries Ltd. v. Commissioner of Customs89, Hon‟ble Justice Markandey Katju has referred to the Mimansa Rules of Interpretation of the ancient times while deciding an appeal under the Customs Tariff Act, 1975. The issue for decision involved the interpretation of section 14 of the Customs Act and some relevant rules, especially Rule 9(2) (a) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. The decision required consideration of deeming provisions in a statute, legal fictions, how decisions are to be taken, when two interpretations of a provision/rule are possible, how the principle (primary) and subordinate legislations work and similar other related issues. According to the Court, every legal system has a hierarchy of laws. Whenever there is conflict between a norm in a higher layer in this hierarchy and a norm in a lower layer, the norm in the higher layer will prevail. The hierarchy in our country has the Constitution of India right at the top. Next comes the statutory law, which may be either the Parliamentary law or law made by the State Legislature. Third is delegated or subordinate legislation, which may be in the form of rules and regulations made under the Act. And last in the hierarchy are administrative orders or executive instructions. The theory of the eminent positivist jurist Kelsen (The Pure Theory of Law), were relied on. On the basis of existing rules of interpretation generally followed by Courts, the Court has summarized the position with respect to statute and rules, as hereunder a. If there are two possible interpretations of a rule, one which serves the object of a provision in the parent statute and the other, which does not, the former has to be adopted because adopting the latter will make the rule ultra vires the Act. b. The Act falls in the second layer in this hierarchy, the rules made under the Act fall in the third layer. Hence, if there is any conflict between the provisions of the Act and the provisions of the Rules, the former will prevail. Rules and notification: Rules made under the Act have the same force as the sections in the Act. But no exercise of the rule-making power can affect control or detract from the full operative effect of the provisions of the sections. Any rule, which purports to do so, would be ultra vires and void held in case of Hukumchand Mills Ltd v. State of MP.90

89 90

(2006) 202 ELT 561 (SC) 52 ITR 583, 589 (SC)

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Miscellaneous a. Definition clause In CIT v. The Hindu91; CIT v. Srinivasan & Gopalan92, it was held that a definition or interpretation clause, which extends the meaning of a word, should not be construed as taking away its ordinary meaning. Further, such a clause should be as interpreted as not to destroy the basic concept or essential meaning of the expression defined, unless there are compelling words to the contrary. b. Undefined words Words, which are not specifically defined, must be taken in their legal sense or their dictionary meaning or their popular or commercial sense as distinct from their scientific or technical meaning, unless a contrary intention appears. c. Legal fiction In CIT v. Godavari Sugar Mills Ltd,93 it was held that the word “deemed” is apt to include the obvious, the uncertain and the impossible. A legal fiction has to be carried to its logical conclusion. However, in CIT v. Vadilal Lallubhai94, it was held that the fiction operates only within the field of the definite purpose for which the fiction is created. d. Marginal notes Marginal notes to the sections cannot control the construction of the statute held in CIT v. Ahmedbhai Umarbhai95; Chandroji Rao v. CIT96, but they may throw light on the intention of the legislature held in case of CIT v. Vadilal Lallubhai.97 e. Punctuation Punctuation may assist in arriving at the correct construction of a statutory provision.

f. Retrospective effect of rules and notifications

91

18 ITR 237, 250 23 ITR 87 (SC) 93 63 ITR 310, 315-6 (SC) 94 86 ITR 2, 8 (SC) 95 18 ITR 472, 487 (SC) 96 77 ITR 743, 745-6 (SC)] 97 86 ITR 2,11 (SC) 92

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An authority cannot make rules or issue notifications adversely affecting the assessee‟s rights with retrospective effect, unless the statute, whether expressly or by necessary intendment, empowers the authority to do so hold in case of ITO v. Ponnoose98. This principle received statutory recognition in section 295(4) w.e.f. 18.8.1974 inserted by Direct Taxes (Amendment) Act, 1974. g. A completed assessment may be reopened or rectified A completed assessment may be reopened under section 147 or rectified under section 154 held in Venkatachalam v. Bombay Dyeing & Manufacturing Co Ltd.99, if the relevant provisions of the law are amended with appropriate retrospective effect. h. Necessity of speaking orders Where under the provisions of the Act an authority is empowered to grant approval or exemption, and the taxpayer has a right to claim it on fulfillment of the statutory conditions, the authority is bound to pass a speaking order and give reasons in support of its finding that the taxpayer is not entitled to the approval or exemption. The appellate and revisional authorities likewise must pass speaking orders. In fact Article 141 of the Constitution of India also mandates this. i. Double taxation not permitted In Jain Bros v. Union of India100, it has been broadly stated the principle of the Income-tax Act is to charge all income with tax, but in the hands of the same person only once. There could be double taxation if the legislature distinctly enacted it. In CIT v. Murlidhar Jhawar & Purna Ginning & Pressing Factory101, it was held that if an association or unregistered firm is taxed in respect of its income, the same income cannot be charged again in the hands of the members individually and vice versa. Also in Nagappa v. CIT102, the court held that Trust income cannot be taxed in the hands of the settlor and also in the hands of the trustee or the beneficiary. In T.N.K. Govindraju Chetty & Co. (P) Ltd. v. CIT103, the court has observed that the same person can be taxed both as individual as well as 98

[1970] 75 ITR 174 (SC) 34 ITR 143 (SC) 100 77 ITR 107, 112 (SC) 101 60 ITR 95 (SC) 102 73 ITR 626, 633 (SC) 103 [1964] 51 ITR 731 (Mad) 99

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the karta of his family but same income cannot be charged twice over in the hands of the same person is well settled. There is rule of law that income which has borne tax in the hands of a particular individual becomes wholly immune from tax in all its subsequent devolutions or passage to another person. Doctrine of Stare Decisis and Uniformity of construction of Precedents: Doctrine of Stare Decisis ‘Stare decisis’ is a Latin phrase which means „to stand by decided cases‟ or „to uphold precedents‟. Doctrine of stare decisis is a general maxim which states that when a point of law has been decided, it takes the form of a precedent which is to be followed subsequently and should not normally be departed from. By virtue of Article 141 of the Constitution of India, the judgments pronounced by the Supreme Court have the force of law and are binding on all the Courts in India. However, the Supreme Court itself is free to review its earlier decision and depart from it if the situation so warrants. The Madras High Court in Peirce Leslie & Co. v. CIT104, observed that the doctrine of stare decisis is one of the policy grounded on the theory that security and certainty require that accepted and established legal principles, under which rights may accrue, be recognised and followed, though later found to be not legally sound, but whether a previous holding of the Court shall be adhered to or modified, or over-ruled, is within the Court‟s discretion under the circumstances of a case before it. Income Tax Act, being a Central Act of Parliament, uniformity of construction by the various High Courts should be followed unless there are overriding reasons for taking a divergent view. High Court decisions: Whether binding in nature and binding on whom Though there is no express provision in the Constitution like Article 141, in respect of the High Courts, the Tribunals within the jurisdiction of a High Court are bound to follow its judgments as the High Court has the power of superintendence over them under Article 227 of the Constitution.

104

[1995] 216 ITR 176 (Mad.)

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The Supreme Court in East India Commercial Co. Ltd. v. Collector of Customs105 has observed: “. . . We, therefore, hold that the law declared by the highest court in the State is binding on authorities or Tribunals under its superintendence, and that they cannot ignore it . . . .” (p. 1905) In K.N. Agrawal v. CIT106, it was observed that the orders of the Tribunal and the High Court are binding upon the A.O. In State of A.P. v. CTO107, it was held that it is not permissible for the authorities and the Tribunals to ignore the decisions of the High Court or to refuse to follow the decisions of the High Court on the pretext that an appeal is pending in the Supreme Court or that steps are being taken to file an appeal. The Court then made the following important and bold observations: “. . . If any authority or the Tribunal refuses to follow any decision of this High Court on the above grounds, it would be clearly guilty of committing contempt of this High Court and is liable to be proceeded against.” (p. 572) Position in regard to different Benches of the same High Court The position in regard to the different Benches of the same High Court is as follows: 

A Single Judge or a Division Bench order of a High Court is binding on the single Judge of the same High Court.



It is obligatory on the part of a Division Bench to follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court.



Judicial propriety requires a Single Judge to follow and apply earlier Division Bench judgment of the same Court which is very much binding on him sitting as a Single Judge of the same High Court.



Where a Single Judge does not subscribe to the views expressed in a Single Judge‟s order or Division Bench‟s order of the same High Court, he should place the papers before the Chief Justice to enable him to constitute a larger Bench to examine the question.

105

AIR 1962 SC 1893 [1991] 189 ITR 769 (All) 107 [1988] 169 ITR 564 (AP) 106

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Similarly where a Division Bench differs from another Division Bench of the same High Court, it should refer the case to a larger Bench. The above position has been culled out from CIT v. Thana Electricity Supply Ltd.108; CIT v. Hari Nath & Co.109; Super Spg. Mills Ltd. v. CIT110; Koduru Venkata Reddy v. LAO111; Sundarjas Kanyalal Bhatija v. Collector112. Whether decision of a High Court extends beyond its territorial jurisdiction In Patil Vijaykumar v. UOI113, it was observed that “. . . But we wish to add that although a decision of another High Court is not binding on this Court, we see no reason for not accepting, with respectful caution, any help they can give in the elucidation of questions which arise before this Court.” (p. 60) It is a well-settled position that decision rendered by a High Court is not binding on other High Courts or the Tribunals or authorities beyond its territorial jurisdiction. At best, its decision can have persuasive value. In Benoy Kumar Sahas Roy Case114, it was held that a decision of a High Court would have binding force in the State in which the Court has jurisdiction but do not have binding force outside that State. Contrary decisions: However, the courts have also held that normally, more so, in regard to the Income-tax Act, which is a piece of all India legislation, if any High Court has construed any section or rule, that interpretation should be followed by the other High Court unless there are compelling reasons to depart from that view was held in Peirce Leslie & Co.‟s case115; CIT v. Deepak Family Trust No. 1116; CIT v. Alcock Ashdown & Co. Ltd.117; and Sarupchand Hukamchand, In re118.

108

[1994] 206 ITR 727 (Bom) [1987] 168 ITR 440 (All) 110 [1993] 199 ITR 832 (Mad.) 111 [1988] 170 ITR 15 (AP) 112 [1990] 183 ITR 130 (SC) 113 [1985] 151 ITR 48 (Kar) 114 32 ITR 466 (SC) 115 supra 116 [1994] 72 Taxman 406 (Guj) 117 [1979] 119 ITR 164 (Bom) 118 [1945] 13 ITR 245 (Bom) 109

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When a precedent ceases to be binding The Andhra Pradesh High Court in CIT v. B.R. Constructions119, states that a precedent ceases to have a binding force in the following situations: 1. if it is reversed or over-ruled by a higher court; 2. when it is affirmed or reversed on a different ground; 3. when it is inconsistent with the earlier decisions of the same rank; 4. when it is sub silentio (non-speaking judgment) 5. When it is rendered per incuriam (decision decided without referring to a statutory provision or a precedent). Obiter dicta are not binding Word „Obiter‟ means „by the way‟, „in passing‟, „incidentally‟. Obiter dictum is the expression of opinion stated in the judgment by a Judge on a question immaterial to the ratio decidendi. However, these are of persuasive value. They are unnecessary for the decision of a particular case. In Mohandas Issardas v. Santhanam120, it was held that it would be incorrect to say that every opinion of the Supreme Court would be binding on the High Courts. Only the opinion expressed on a question that arose for the determination of a case is binding.

119 120

[1993] 202 ITR 222 (A.N.) AIR 1955 Bom. 113

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PRESENT POSITION IN INDIA In Kanai Lal v. Paramnidh121, the court said “it must always be borne in mind that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the legislature.” It also added, “When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the courts would prefer to adopt the latter construction.”122 This case basically dealt with the ejection of theka tenants under provisions of Calcutta Theka Tenancy Act, 1949. In S. A. Venkataraman v. The State123, the court said. This case dealt with Section 6 of the Prevention of Corruption Act. It was to do with taking a sanction from an appropriate authority. It considers only the present working employees as employees; those who have retired are not considered as employees. The court said, “In construing the provisions of a statute it is essential for a court, in the first instance, to give effect to the natural meaning of the words used therein, if those words are clear enough”. Apparently clear and simple language at times in its analysis is so ambiguous as to present great difficulty in construction .regarding Article 105(2) of the Constitution which provides that „no member of the Parliament shall be liable to any proceeding in respect of anything said or any vote given by him in Parliament‟, The Supreme Court in Tej Kiran Jain v. N. Sanjeeva Reddy124, held that the Article means what it says in language which could not be plainer. In the case of P. V Narshima Rao v. State (Central Bureau of Investigation)125, When Mr. P. V. Narshima Rao was the Prime Minister; the government faced a no-confidence movement, which was defeated later on. However they were few members who were accused of the offence of giving and taking bribes and the President of Rashtriya Mukti Morcha filed a complaint, against the P. V. Narishma Rao, alleging charges of corruption, with the Central Bureau of Investigation. However Article 105 of the Indian Constitution which gives provisions for the powers and privileges of the members of the House of Parliament. It was held by a majority of three judges that a member who voted in Parliament after receipt of bribe cannot be 121

A.I.R 1957 SC 907 DEEPAK JAIN, Interpretation of Statutes: A Treatise http://www.itatonline.org/articles_new/index.php/interpretation-of-statutes-a-treatise/ 123 A.I.R 1958 SC 107 124 (1971) 1 SCR 612 125 (1998) 4 SCC 626 122

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prosecuted as his prosecution would be a proceeding in respect of a vote given by him and barred by Article 105(2). In another case Ramavtar Budhaiprasad v. Assistant Sales Tax Officer126, the Supreme court was faced with a question with the meaning of “vegetable”, as it had occurred in the C.P and Berar Sales Tax Act, 1947 as amended by Act of 1948,whether the word vegetables included betel leaves or not. The Supreme Court held that “being a word of everyday use it must be construed in its popular sense”.127 It was therefore held that betel leaves were excluded from its purview. In the case of Forest range Officer v. Khushboo Enterprise128, The question in the case was whether sandal wood oil is “wood oil” as used in the Section 2(f) of the Kerala Forest Act, 1961. The argument referred to a technical dictionary which defined wood-oil as a natural produce of the forest. Hence it was held that sandalwood oil was a wood-oil. In the case of VemmaReddy Kumarsawmy Reddy v. State of Andhra Pradesh129, The dispute was regarding the excess of land possessed by the appellant, and this was surrendered by them, however it had cashew-nut plantation. The trees in the surrendered land were fruit bearing. The court stated that in construing if it was plain and ambiguous than the primary rule of interpretation was supposed to be used. The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act 1973 was referred to for the compensation of the land. It is considered as a part of statute and key source to open the mind of interpreters. It expresses the scope and object of the Act in a comprehensive manner. In case of Shree Sajjan Mills Ltd. v. CIT, It was decided by the court of law that these marginal notes applied to the section cannot be used for interpreting the section. However, when words are ambiguous, marginal notes are relevant factor to be taken into consideration while interpreting the ambit of the section. However with respect to Constitution, marginal notes appended to the Articles have been made use of in interpreting the articles. In case of Qwality Ice Cream Co v. Sales-tax Officer, New Delhi,130 It is an elementary principle of the construction of statutes that the words have to be read in their literal sense. Thus, generally speaking, words and expressions would be given their plain and ordinary meaning which cannot be cut down or curtailed unless they in themselves are clearly restrictive. 126

A.I.R 1961 SC 1325 RIPATHI, at 127 128 A.I.R 1994 SC 120 129 (2006) 2 SCC 670 130 (1975) 11 Del LT 180 127

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In case of Hira Lal Ratanlal v. Sales Tax Officer, Kanpur,131 it was held that if the provision is unambiguous, and if from that provision, the legislative intent is clear, there is no need to call into aid other rules of construction of statutes. In case of Commissioner of Income Tax, Central Calcutta v. National Taj Traders132, The purpose of the Legislature has to be established from the exact words of the Statute, where they arise in their accurate and precise form. But if the same is implied in vague and ambiguous language, the Courts may seek the aid of every reasonable and permissible aid to interpretation. This principle of Casus Omissus cannot be supplied by the Court except in case of clear necessity and when the reasons for it are found in the four corners of the Statute itself. In another case Ramavtar Budhaiprasad v. Assistant Sales Tax Officer133, the Supreme court was faced with a question with the meaning of “vegetable”, as it had occurred in the C.P and Berar Sales Tax Act, 1947 as amended by Act of 1948,whether the word vegetables included betel leaves or not. The Supreme Court held that “being a word of everyday use it must be construed in its popular sense.134 In case of Commissioner of Income Tax v. Indo Mercantile Bank Ltd, The purpose of the proviso is to qualify or create an exception to what is in the enactment. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. Therefore, it is to be interpreted harmoniously with the main enactment.

131

AIR 1973 SC 1034 A.I.R 1980 S.C 481 133 A.I.R 1961 SC 1325 134 TRIPATHI,at 127 132

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CONCLUSION At last, I would like to conclude by saying that art of interpretation is a remarkable tool to paint citizens‟ life with numerous beneficial colors of joy, peace and happiness. Indian judiciary has wonderfully endorsed Indian Statutes with a manner which is fair, reasonable and in conformity with the purpose for which the law is framed. Here, it is not to suggest that judicial interpretation has never been erroneous or never resulted into absurdity but is to simply indicate that to make sense out of miserably worded statute, where the purpose of the statute was apparent, judicial violence with the language has paid rich dividends for the country. In light of which, I can simply hope that statutory endorsement by judiciary will continue because a statute can never be exhaustive and legislative incapacity to speculate all the possible situations that may arise in a future and in myriad circumstances will always leave a wide scope for interpretation. This gap will ensure that the interpretation by judiciary in the future will yield fruit bearing results for all. The degree of strictness and literal construction applied by the Courts swung like the proverbial pendulum to extremes. The above is a very basic overview of the rules of interpretation of taxing statutes and is intended to give an insight into the various methods employed by the Courts to ascertain the meaning of legal provisions. To conclude, one must strive hard to read between the lines by using the interpretative techniques, since one must bear in mind the words of LJ. Denning who stated that “It would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity”. But, I would also like to focus upon that this special art of interpretation having many brushes should be prevented to indulge in any sort of controversy. This art should not be used to make painting boards (to make law); the real use of this art lies in painting a board (in interpretation) which it can very well do with the brushes (rules/doctrines of interpretation) which has been the prime focused in the whole submission.

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Bibliography 1. Interpretation of Statutes, M.P.Tandon; 11th edition, 2013 2. Interpretation of Statutes, B.M.Gandhi

2011

3. Interpretation of Statutes, N.S.Bindra, revised by M.N. Rao & Amita Dhanda 10th edition, 2007 4. Maxwell on the Interpretation of Statutes

, Maxwell, revised by P. St.

J. Langan, 12th edition, reprint 2011 5. Classification of Goods & Interpretation of Taxing Statutes (in 2 Vols.), Prakash Sahay's, 2013

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