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2019 (9) TMI 902 - AT - Income TaxExemption u/s 10(26) - denial of exemption relief to the two partnership firms that was formed by two tribal individuals - Benefit of doubt in relation to an exemption provision - diversified views - HELD THAT:- Benefit of doubt in relation to an exemption provision in a tax law goes in favour the Revenue / State and not to the taxpayer anymore. We follow the same to hold that the assessee’s arguments that a partnership firm is “a member of a scheduled tribe” is not liable to be accepted. We also make it clear that this is going by their lordships foregoing landmark decision(s), there is no scope left for us hold that there is any scope of intendment in the impugned statutory provision stretching the impugned exemption to a partnership firm as a member of Scheduled Tribe under Article 366 Constitution of India. The assessee’s next argument that sec. 13 of the General Clauses Act, 1897 (supra) treats masculine and singular expression in central regulations to be inter-changeable famine gender plural expression; also carries no substance since the legislature expression herein is very much clear that the impugned exemption benefit is available to a member “a of Scheduled Tribe” only takes to a partnership firm consisting of partners who are member of such a Scheduled Tribe. We reiterate that the said provision General Clause Act itself contains a stipulation that “unless there is anything repugnant in the subject or context”. We therefore decline the assessee’s instant argument as well. We make it clear whilst holding so the Income Tax Act is complete code in itself in the nature of specific law which applies at the cost of all the general laws going by the legal maxim “generalia specialibes non derogant” as per hon'ble apex court’s decision in Union of India and Another vs. Indian Fisheries (P) Ltd. [1965 (4) TMI 52 - SUPREME COURT] We also wish to quote hon'ble apex court’s foregoing decision in “M/s Jullunder Vegetables” [1965 (11) TMI 101 - SUPREME COURT]holding that though under the Partnership Law a firm is not a legal entity but only consists of individual partners for the time being, for tax law, income-tax as well as sales-tax, it is a legal entity. We hold that mere fact that the assessee’s two partners are already enjoying sec. 10(26) exemption does not amount to overstretching the very relief to their partnership firm as well. We notice that sec. 10(26) comes into play “in case of a member of a Scheduled Tribe” notified in Article 366 of the Constitution of India. Similar exemption clauses sec. 26A is applicable to any income accruing or arising to any source in the district of Ladakh are admittedly applicable in cases of individual; HUF, firms, association of person and company u/s 6 (1) to (4) and sec. 10(26AAA) deals with an individual only; respectively. The necessary inference that flows from a comparative analysis of all these exemption provisions is that sec. 10(26) pre-possess “any person” who is also a member of a Scheduled Tribe as against sec. 10(26A) and 10(26AAA) applicable in case of specified categories of person respectively. We also involve the doctrine of necessary implication in this backdrop that what is implied in the statute is as much a part thereof as that what is expressed. We thus find no infirmity in the CIT(A)’s lower appellate order upholding the Assessing Officer’s action that the assessee is not entitled for the exemption benefit u/s. 10(26) - Decided against assessee.
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