INTERPRETATION IN TAX LAWS - SOME RULES

[Dr. Sanjiv Agarwal]

Aspect Theory

Any subject which is one aspect and one purpose fall within particular legislature may in another aspect and for another purpose fall within another legislative power. They might be overlapping, but that should be in law. Same transaction may involve two or more taxable events in its different aspects, but the fact that there is overlapping does not detract from the distinctiveness of aspects [Shilpa Color Lab v. CCE, Calicut 2007 -TMI - 1022 - CESTAT, BANGALORE)].

Entry 60 of list II states that "taxes as professions, trade, callings and employment." Entry 60 is a taxing entry. It is not a general entry. Tax on professions etc. has to be read as a levy on professions, trade, callings, etc, as such. Therefore, entry 60 which refers to professions cannot be extended to include services. This is what is called as an "aspect theory" [All India Federation of Tax Practitioners v. Union of India 2007 -TMI - 1556 - Supreme Court ; (2007) 10 STJ 201 (SC)]

In Imagic Creative Pvt. Ltd. v. Commissioner of Commercial Taxes 2008 -TMI - 2576 - Supreme Court of India, (2008) 12 STT 392 (SC); (2008) 12 STJ 269 (SC) it was held that while interpretating tax statutes involving applicability of Article 246 of Constitution of India read with Seventh Schedule thereof, court should take various theories including 'aspect theory' while interpreting such statutes.

Ejusdem generic Rule

This rule means when particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to things of the same kind as those specified.

Salmond explains the principle in the following words:

"Yet another example of a rule of language in a legal maxim is the Ejusdem Generis rule which serves to restrict the meaning of general words to things or matters of the same kind (genus) as the preceding particular words. So, for example, when the Sunday Observance Act, 1677, provided that no "tradesman, artificer, workman, labourer or other person whatsoever" should do certain things, the general phrase "other person whatsoever" was held to refer only "persons within the class indicated by previous particular words' and not, therefore, to include such persons as farmers or barbers".

This rule reflects an attempt "to reconcile incompatibility between the specific and general words in view of the other rules of interpretation that all words in a statute are given effect if possible, that a statute is to be construed as a whole and that no words in a statute are presumed to be superfluous". (Tribhuwan Prakash Nayyar Vs. Union of India , AIR 1970 SC 540)

The Supreme Court in Amar Chandra vs. Collector of Excise, Tripura, AIR 1972 SC held that this rule applies when —

(a)   the statute contains an enumeration of specific words;

(b)   the subjects of enumeration constitute a class or category;

(c)   that class or category is not exhausted by the enumeration;

(d)   the general terms follow the enumeration;

(e)   there is no indication of a different legislative intent.

Sutherland in his 'Statutory Construction' (3rd Edition, Vol. II p. 395) has also explained the principle of 'Ejusdem generis in the same words.

The specific character and description of the service is important for taxability and that rule of ejusdem generis have a crucial bearing on interpretation of scope of taxing subject.

(Homa Engineering Works v. CCE, Mumbai (2007) 11 STJ 278 (Cestat, Mumbai).

In Smt. Nirmala Jain v ITO (2008) 304 ITR (AT ) 246 (Patna), it was observed that the principle of ejusdem generis has to be invoked when particular words pertaining to a class or category or genus are followed by general words, then the general words are construed as limited to words of the same kind as those specified. This principle would apply when—

(i)    the statute contains an enumeration of specified words,

(ii)    the subject of the enumeration constitutes a class or category,

(iii)   that class or category is not exhausted by the enumeration

(iv)   the general term follows the enumeration and

(v)   there is no indication of a different legislative intent

Doctrine of Noscitur A Sociis

The principle 'noscitur a sociis' is a well accepted principle for interpretation of entries in a taxing statute. Any commodity mentioned in any entry gets its colour from the commodities or thing mentioned either before or after the particular item for the purpose of assigning it a correct meaning [CIT v. Sangrur Vansapati Mills Ltd. 2009 -TMI - 33654 - PUNJAB AND HARYANA HIGH COURT)