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Income‑tax Appeal No. 3686 of 1979‑80, decided on 9th September, 1980.

‑‑ S. 16(3)(a) (ii)‑Computation of total income‑Words "minor", "minor child" in S. 16(3)(a)(ii)‑Mean only son or daughter and do not include grand child‑Maxim "Expressio unius exclusio alterious" (mention of one thing excludes all other things of same class)‑Held, applicable to such case‑Interpretation of statutes‑Fiscal statute Two interpretations of provision possible‑Interpretation favourable to tax‑payer to be accepted.

C. I. T. v. Khatija Begum P L D 1965 S C 472 and Sunder Das v. Collector of Gujrat I L R 3 Lah. 349 ref.

Date of hearing : 23th July 1980.

This is the appeal of an individual and relates to assessment year 1975‑76.

2. The assessee is a partner in two firms Messrs Malik Din Muhammad & Sons (K . . . . Press), L and Messrs Malik Din Muhammad & Sons (Book Depot), Lahore. In each firm the assessee has 1/8 share One Miss Badia Shafiq a minor; is grand daughter of the assessee and also a partner in both the firms having the same share, namely 1/8th share in each firm. While making assessments the, Assessing Officer clubbed the income of the minor with the income of the assessee under section 16(3) of the Income tax Act, 1922.

3. The case of the assessee in brief is that under section 16(3) only the income of the spouse or minor child of an individual could be included and that minor child means son or daughter and not the grand child. I have examined the case carefully. For the sake of convenience subsection (3) of section 16 is reproduced below :‑

"(3) In computing the total income of any individual for the purpose of assessment there shall be included.

(a) So much of the income of the spouse or minor child of such individual as arises directly or indirectly.

(i) From the membership of the spouse in a firm of which he or she is a partner.

(ii) From the admission of the minor to the benefits of partnership in a firm of which such individual is a partner.

(iii) .

Originally in clause (a) quoted above, the word was the wife and in sub‑clause (i) the words were her husband in place of he or she. Before the amendment a question arose whether the word individual included husband and the Supreme Court in the case C. I. T. v. Khatija Begum (PLD 1965 SC 472), held that the word individual' used in section 16(3)(a(ii) had restricted meaning and did not include husband. Consequently an amendment was made in 1965 and in clause (a) the word spouse' was substituted in place of wife and in subsection (i) words 'he and she' were substituted in place of her husband':

4. From the ruling quoted above it is clear that restricted meaning had been given to these words by the Supreme Court. It therefore follows that the words Minor Child' are to be read along with the word spouse' meaning thereby that the words minor child' as used in clause (a) is only the son or daughter and does not include the grand child. In sub‑clause(a)(ii) the word minor' is referable to minor child as used in sub‑clause (a). In the context of this case the Maxim Expressio unius exclusio alterious (Mention of one thing excludes all other things of the same class) is to be applied. The use of the words Minor Child' would exclude the grand child. Even otherwise this is now settled law that when any doubt arises and where there are two possible interpretations the one favourable to the tax payer should be accepted. In the case Sunder Das v. Collector of Gujrat (I L R 3 Lah. 349), Sir Shadi Lal the Chief Justice observed :‑-

"It is sound principle that subject is not to be taxed without clear word to teat effect and that when in doubt we are always to lean against the construction which imposes burden on the subject."

6. For foregoing reasons I accept the appeal of the assessee and hold that the grand child is not included in the words Minor Child used in section 16(3) and therefore the minor's income could not be clubbed with the assessee's income.

Appeal accepted.

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