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Reference Case No. 4 of 1966, decided on 22nd December 1967.
, S. 15‑AA read with Ss. 16(1), 55, 56 & 58‑Exemption‑Section 15‑AA is applicable to super tax as well‑Assessee, registered firm, held, entitled to exemption of investment envisaged in S. 15‑AA to super tax as well, to be deducted from his total income.
Repugnancy between two provisions of statute not to be inferred.
Maxwell's Interpretation of Statutes (9th Edn.), p. 163.
Clear provisions of a statute-- Cannot be rendered nugatory by implication.
S. M. Hussain with A. M. Muhmudur Rahman for Applicant.
Afzalul Haque for Respondent.
Dates of hearing : 1st, 2nd November and 22nd December 1967.
‑The Income‑tax Appellate Tribunal, Dacca has, at the instance of the assessee, referred the following questions to this Court for our opinion:
"1. Whether exemption of investments as envisaged in section 15‑AA is available to a Registered firm for the purpose of levy of super‑tax.
2. Whether for the purpose of calculation of super tax the total income of the, firm is to be reduced by the amount of investment made by it under section 15‑AA."
This reference arises in the following circumstances: The assessee Perfume Supply Company, is a registered firm. It purchased Postal Saving Certificates of the value of Rs. 12,000 and claimed the benefit of section 15‑AA of the Income‑tax Act (herein after called "the Act"). That section provides that tax shall not be payable by an assessee on so much of his total income as is invested by him in the purchase of Post Office Saving Certificates. The claim of the assessee for exemption from payment of Super tax for the amount invested in the purchase of the said certificates was not accepted by the Income‑tax Officer. It may be mentioned here that the assessee being a registered firm is not liable to pay income‑tax. The Income‑tax Officer, took the view that deduction was not permissible in respect of super tax. The assessee made an unsuccessful effort to challenge this order before the Appellate Assistant Commissioner and thereafter preferred a further appeal to the Tribunal. The Tribunal by its order dated 20‑4‑1963 upheld the decision of the Income‑tax Officer and that of the Appellate Assistant Commissioner. The Tribunal itself however did not discuss the question. It merely referred, to the findings of law arrived at by the revenue at the earlier stages. The entire discussion by the Tribunal of this question is in the following terms:
"It is important to bear in mind that the appeal is against an assessment raised on a registered firm and as such there is no charge of Income‑tax on the firm. It is obviously in this background that the Income‑tax Officer has observed:
The assessee has claimed investment allowance under section 15‑AA for the purchase of Postal Saving Certificates by the Firm. This claim is not admissible as super tax on firm is levied on total income arid not on taxable income.'
The view taken by the authorities below is correct as section 15‑AA is not applicable for purposes of super tax The schedule of tax relating to the levy of super tax read with sections 16 and 56 leaves no room for doubt."
There finishes, to our surprise, the discussion relating to this question of law. The Tribunal has merely stated that section 15‑AA is not applicable for purposes of super tax. It has not indicated as to why "Sections 16 and 56 leave no room for doubt" that section 15‑AA is not applicable for purposes for super tax."
Section 15‑AA of the Act is the foundation ‑of the claim of the assessee for exemption of the sum of Rs. 12,000 invested by it for the purchase of Postal Saving Certificates. 'The material part of the section 15‑AA reads as follows:
"15‑AA.‑(1) Subject to the provisions of subsection (3) of section 15 and subsection (3) of this section the tax shall not be payable by an assessee, not being a company, on so much of his total income as is invested by him in the purchase of Post Office Saving Certificates, Unit Trust Certificates issued by the National Investment Unit Trust and such Government Securities including Development Loans and shares of such investment companies as may be specified by the Central Board of Revenue in this behalf."
It is to be borne in mind that the assessee is not a Company. It is a registered firm. The expression "not being a company" occurring in the aforesaid subsection (1) of section 15‑AA clearly indicates that tax shall not be payable by an assessee, if the said assessee is not a company. A bare reading of the section would therefore make it clear that the tax shall not be payable by an assessee for the amount invested by it in the purchase of Post Office Saving Certificates provided the assessee is not a company. We mention only Post Office Saving Certificates, for, we are in this case concerned with these certificates alone although this section speaks of other certificates as well.
Mr. S. M. Hussain, learned Advocate for the assessee has made an able analysis of the relevant provisions and claimed that the word "tax" occurring in section 15‑AA means income‑tax as well as super‑tax.
Mr. Afzalul Haque, learned Advocate for the Commissioner of Income‑tax, who has also been analytical in his examination of the different relevant provisions submits that section 15‑AA read with section 16 would indicate that the benefit claimed by the assessee owing to his purchase of Post Office Saving Certificates would not be available to him so far as super‑tax is concerned.
The argument advanced by the learned Advocates require "consideration of the definition of the word "tax" occurring in section 15‑AA.
Clause (14) of section 2 is as follows :-
"(14) "tax" means the tax payable under this Act and includes any penalty, interest, fee or other charge leviable under this Act ;"
Chapter IX which deals with super‑tax is also a part of this Act and therefore when clause (14) says that tax means "the tax payable under this Act," it undoubtedly includes super‑tax. It will, therefore, be seen that the word "tax" means "income‑tax" as well as "super‑tax". The Legislature was fully aware of this position. That is why wherever meant Income‑tax as disting uished from super tax or vice versa, it specially said so. It is not necessary to refer to all these provisions. We would however, refer to section 15‑D of the Act. This section deals with exemp tions on account of donations for charitable purposes in the circumstances enumerated therein‑. In this section a proviso has been added to say that a company will get exemption from income‑tax but not super‑tax. The proviso reads as follows:‑
"Provided that in the case of a company this exemption shall apply to only in respect of income‑tax and not in respect of super‑tax payable by it."
The Legislature appreciated that tax includes both income‑tax and super‑tax. It therefore felt the need of making an express provision where it did not intend to grant exemption in respect of both the taxes. If the tax would mean merely income‑tax it would not be necessary to mention super‑tax in order to bring out the distinction between the two it is, therefore, clear that tax means income‑tax and super‑tax.
It is, however, to be borne in mind that so far super‑tax is concerned, it is dealt with in Chapter IX and so far as Income-tax is concerned there are various provisions dealing with the same. Section 3 is the charging section for income‑tax‑ as will appear from the marginal note of that section as well as the heading of the Chapter. Similarly Chapter IX deals with super- tax and it may be mentioned here also that section 55 is the charging section for super‑tax.
We have seen that there is a clear command of the Legislature expressed in section 15‑AA of the Act to the effect that the amount invested for the purchase of Postal Saving Certificates as well as other Certificates mentioned therein a deduction would be avail able for the said amount. Mr. Afzalul Haque's contention is that deduction would be available for income‑tax but not for super‑tax and he relies on section 16 for the purpose.
The material part of section 16 is clause (a) of subsection (1) of section 16. We should set out the said proviso here:
"16(1).‑In computing the total income of an assessee‑
(a) any sums exempted under the first proviso to subsection (1), of section 7, the second and third provisos to section 8, subsection (2) of section 14, section 15, section 15‑A, section 15‑AA, section 15‑B, section 15‑C, section 15‑D, section 15‑E and section 15‑F, shall be included."
We have already said that section 15‑AA expresses a clear inten tion of a Legislature that a deduction should be allowable to assessee for purchase of Certificates enumerated therein. It is laid down in section 16, just quoted, that sums exempted under section 15‑AA as well as under some other provisions shall be included in computing the total income of an assessee and it stops there. We have, therefore, on the one hand a very express command in section 15‑AA and on the other, another declaration of a legis lative intention that the sum exempted under section 15‑AA should be included in computing total income of an assessee. A very' cardinal principle of interpretation of a statute for which author ities are numerous is that it should, as far as possible, be held that there is no repugnancy between the two provisions of a statute. The following passage from Maxwell's Interpretation of/ Statutes, (9th Edn.) at page 163 may be quoted here:
"An author must be supposed to be consistent with himself, and, therefore, if in one place he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect, the work of the Legislature is treated in the same manner as that of any other author, and the language of every enactment must be construed as far as possible in accordance with the terms of every other statute which it does not in express terms modify or repeal. The law, therefore, will not allow the revocation or alteration of a statute by construction when the words may be, capable of proper opera tion without it. It cannot be assumed that Parliament has given with one hand what it has taken away with another."
Repugnancy has to be in clear language to be given effect.
Keeping this principle of interpretation in view we should read section 16(1)(a). There we merely find that the sum invested for the purpose of a Certificate described therein should be inclu ded in determining the total income. We do not find any express language of the Legislature to say that there should be no allow ance as contemplated in section 15‑AA because of this inclusion. To accept the argument of Mr. Afzalul Haque involves the danger of laying down something absurd, for, section 15‑AA does not deal with income‑tax or super‑tax alone. It deals with tax. If the argument of Mr. Haque is accepted, then deduction to income‑tax would not also be permitted.
Mr. Haque's contention however is that the Third Schedule of the Act deals with the rates of income‑tax in part I and super -tax in Part II and the super‑tax is leviable on "total income" and when section 16 provides that the sum exempted under section 15‑AA is to be included in "total income", the Legislature intends payment of super‑tax on total income. This argument has no substance, for it does not say that exclusion contemplated in section 15‑AA will not be made from the total income. A clear provision of a Statute as is found in section 15‑AA cannot be rendered nugatory by implication. Moreover, in this case it is possible to reconcile the two provisions referred to above. Express command of the Legislature as laid down in section 15‑AA cannot therefore be ignored.
We should at this stage read section 55 of the Act which is as follows:
"55‑(1). In addition to the income‑tax charged for any year, there shall be charged, levied and paid for that year in respect of the total income of the previous year or previous years, as the case may be, of any person an additional duty of income‑tax (in this Act referred to as super‑tax) at the rate or rates laid down for that year by the Central Act."
We do not find anything in this section which would indicate that section 15‑AA has no application to super‑tax.
Mr. Hussain placed his reliance on section 56 of the Act to argue that total income for the purpose of super‑tax shall be total income as assessed for income‑tax. His contention is that total income for income‑tax will be the total income found after excluding the amount invested for purchasing certificates as contemplated under, section 15‑AA. He says the expression "as assessed" occurring in section 56 clearly supports his submission.
Section .56 reads as follows:
"56. Except in cases to which by clause (a) of the proviso to subsections (3) and (4) of section 25 those subsections do not apply and subject to the provisions of this Chapter, the total income of any person shall, for the purposes of super‑tax, be the total income as assessed for the purposes of income‑tax, and whereas assessment of total income has become final and conclusive for the purposes of income‑tax for any year, the assessment shall also be final and conclusive for the purposes of super‑tax for the same year."
We have found that an exception has been made for subsections 3 and 4 of section 25 but no exception has been made so far as section 15‑AA is concerned. As we proceed further we have to refer to section 58 which specifically mention that all provisions of the Act relating to the charge, assessment, collection of recovery of income‑tax would also be applicable so far as super- tax is concerned. It is necessary to set out section 58 here to make the position clear. It is as follows :‑‑
"58. (1) All the provisions of this Act relating to the charge, assessment, collection and. recovery of income‑tax except those contained in section 3, the third proviso to section 8, subsection (2) of section 14, and section 20 shall apply, so tar as may be, to the charge, assessment, collection and recovery of super‑tax."
Omission of section 15‑AA from section 58, is significant and should never be lost sight of. It has been contended by Mr. Afzalul Haque that section 15‑AA applies to income‑tax only. A short answer to this contention is that if section 15‑AA applies to income‑tax, then by reason of the provision of section 58, section 15‑AA is also applicable to super‑tax for, it provides that except certain exceptions, all the provisions of the Act relating to income‑tax shall apply to super tax. Section 15‑AA has not c been mentioned as an exception. That makes it clear that section 15‑AA also applies to super‑tax. We are, therefore, clearly of opinion that the assessee a registered firm is entitled to exemption of investment as envisaged in section 15‑AA to super‑tax as well and this question must therefore be answered in the affirmative.
After having answered the first question, we have also to consider the method by which such exemption is to be treated in answering the second question. We are surprised to find that benefit of section 15‑D has been given by the Revenue in this very case although it refused to give the assessee benefit of section 15‑AA by reason of section 16. But they omitted to notice that section 15‑D also occurs is section 16. This view taken by the Income‑tax Officer and approved by the Appellate Assistant Commissioner and the Tribunal appears to us to be illogical. At any rate, the Revenue itself has allowed a rebate on account of donation for charitable purposes made by this assessee. But in giving the rebate under section 15‑D it has rightly given propor tionate rebate by reason of subsection (3) of section 15‑D itself. As there is no 'such clause added to section 15‑AA which stands by itself, we are clearly of opinion that the amount of Rs. 12,000 is to be deducted from the total income of the assessee. We are therefore of opinion that the second question should also be answered in the affirmative.
For the reasons stated above, we answer both the questions in the affirmative. The assessee is entitled to his costs.
‑I agree.
S. Q. Questions answered in the affirmative:
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