TMI Blog1998 (6) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted as tax. Before the Income-tax Officer, the assessee claimed that this amount was not taxable as his income. The Income-tax Officer did not accept this claim of the assessee as he was of the opinion that the assessee having retired prematurely, the contributions made prior to 1961 only were exempted under section 10(13)(iv) of the Income-tax Act, 1961 (the "Act"). Accordingly, he brought to charge a sum of Rs. 40,264, after excluding the contributions made prior to 1961 amounting to Rs. 4,379. The assessee appealed to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner, following the decision of the Appellate Tribunal in I.T.A. No. 678 (Bom) of 1980 dated January 13, 1981, in the case of Fourth ITO v. J. S. Vasan, wherein, it was held that the amount received by the assessee from the approved superannuation fund was not income of the assessee in view of the definition of income contained in section 2(24) read with section 17(3) of the Act, allowed the appeal of the assessee and held that the amount received by him was not taxable in his hands Is income. Aggrieved by the above order of the Appellate Assistant Commissioner, the Revenue appealed to the Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax at source by the trustees of the fund where any contribution to the extent provided in rule 6 of Part B of the Fourth Schedule from the payment to the employee of contribution made by the employer including interest on such contribution. Mr. Sathe, learned counsel for the assessee, on the other hand, submitted that receipt from approved superannuation fund does not constitute income of the assessee within the meaning of the expression "income" as defined in section 2(24) of the Act. He drew our attention to section 17 of the Act which defines the expression "salary, perquisite and profits" for the purposes of sections 15 and 16 of the Act, in particular, to the definition of "profits in lieu of salary" contained in clause (3) of section 17 of the Act, to show that payments from an approved superannuation fund have been specifically excluded from the ambit of the said definition. It was contended by learned counsel that the onus is always on the Revenue to show that a particular receipt constitutes income for the purpose of the Act. It was also contended that no tax can be imposed by inference or by analogy or by trying to probe into the intent of the Legislature. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probe into the intentions of the Legislature and by considering what was the substance of the matter : A. V. Fernandez v. State of Kerala, AIR 1957 SC 657, 661. It is equally well settled that if a section in a taxing statute is of doubtful and ambiguous meaning, it is not possible out of that ambiguity to extract a new and added obligation not formerly cast upon the taxpayer. In the light of these principles, in the instant case, we are required to examine whether the receipts from the approved superannuation fund can be regarded as income under the provisions of this Act. "Income" has been defined in clause (24) of section 2 of the Act as follows "'income' includes (i) profits and gains (ii) dividend ; (iia) voluntary contributions received by a trust created wholly or partly for charitable or religious purposes or by an institution established wholly or partly for such purposes, not being contributions made with a specific direction that they shall form part of the corpus of the trust or institution ; Explanation.-For the purposes of this sub-clause, 'trust' includes any other legal obligation ; (iii) the value of any perquisite or profit in lieu of salary taxable u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Fourth Schedule of an employee participating in a recognised provident fund, to the extent to which it is chargeable to tax under sub-rule (4) thereof; (2) 'perquisite' includes (i) the value of rent-free accommodation provided to the assessee by his employer ; (ii) the value of any concession in the matter of rent respecting any accommodation provided to the assessee by his employer ; (iii) the value of any benefit or amenity granted or provided free of cost or at concessional rate in any of the following cases - (a) by a company to an employee who is a director thereof ; (b) by a company to an employee being a person who has a substantial interest in the company; (c) by any employer (including a company) to an employee to whom the provisions of paragraphs (a) and (b) of this sub-clause do not apply and whose income under the head 'Salaries', exclusive of the value of all benefits or amenities not provided for by way of monetary payment, exceeds eighteen thousand rupees ; (iv) any sum paid by the employer in respect of any obligation which, but for such payment, would have been payable by the assessee; and (v) any sum payable by the employer, whether direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the law, by the Finance Act, 1995, amended section 17(3)(ii) of the Act to restrict the exclusion from the definition of "profits in lieu of salary" only to payments which are covered under section 10(13) and not other payments from the approved superannuation funds. Section 17(3)(ii), as amended, now reads : "(ii) any payment [other than any payment referred to in clause (10), clause (10A), clause (10B), clause (11), clause (12), or clause (13) or clause (13A) of section 10], due to or received by an assessee from an employer or a former employer or from a provident or other fund, to the extent to which it does not consist of contributions by the assessee or interest on such contributions." This amendment has, however, been made with effect from April 1, 1996, and, accordingly, applicable to the assessment year 1996-97 and subsequent years. It is clear from the above amendment, that for the year under consideration and assessment years up to the assessment year 1995-96, payments received by an assessee from an approved superannuation fund cannot be treated as income for the purposes of the Act. The Revenue has also accepted this lacuna in the law which is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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