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TMI Blog2009 (7) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Act, 1961 (in short, 'the Act'), for the assessment year 1975-76, two questions have been answered by the Division Bench and one of the questions has been referred for consideration to larger Bench. The said question is as under:- "1. Whether, on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the assessee company was entitled to weighted deduction under section 35B(1)(b) on expenditure incurred by way of sea freight amounting to Rs.6,41,758/-? 3. The assessee, inter-alia, derived income from export and made a claim for weighted deduction under section 35B in respect of sea freight for transportation of the goods from India to their destination. The Assessing Officer and the appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, services or facilities. This appears to be in respect of residuary expenses which are not dealt with in earlier clauses. When Sea freight has been specifically made ineligible for weighted deduction under sub clause (iii) above, it cannot be allowed under the general provisions of sub clause (viii). According to us, a general provision cannot override a specific provision. We have, therefore, our doubts about the correctness of the view taken by this Court in the case of Roadmaster Industries of India Pvt. Limited (supra). Accordingly, we are of the view that this question deserves to be decided by a larger Bench." 5. We have heard learned counsel for the parties. 6. To determine the question referred, it will be appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract for the supply outside of such goods, services or facilities; and (ix) such other activities for the promotion of the sale outside India of such goods, services or facilities; as may be prescribed;" 7. A perusal of the above provision shows that the scheme of the section is to provide for weighted deduction of expenditure mentioned in various sub clauses. Sub Clause (iii) expressly excludes expenditure incurred in India in connection with distribution, supply or provision outside India of goods, services or facilities and expenditure (wherever incurred) on the carriage of such goods to destination outside India or on insurance of goods while in transit. The said clause, thus, would negative the claim of the assessee. However, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concise form in a well-known treatise on the subject "Principles of Statutory Interpretation" by Justice G.P.Singh, Tenth Edition, Wadhwa Publication, at Page 137 as follows:- "(b) Inconsistency and repugnancy to be avoided; harmonious construction It has already been seen that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the statute. It is the duty of the courts to avoid "a head on clash" between two sections of the same Act and, "whenever it is possibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be determined with reference to the area and extent of their application either generally or specially in particular situations. The principle is expressed in the maxims Generalia specialibus non derogant, and Generalibus specialia derogant. If a special provision is made on a certain matter, that matter is excluded from the general provision. Apart from resolving conflict between two provisions in the Act, the principle can also be used for resolving a conflict between a provision in the Act and a rule made under the Act. Further, these principles have also been applied in resolving a conflict between two different Acts and in the construction of statutory rules and statutory orders." 12. Applying the above principles to the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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