(1) In W. P. No. 957 of 1958, the petitioner seeks the issue of a writ of prohobition prohibiting the Gift Tax Officer form enforcing a notice calling upon the petitioner to submit the prescribed return under the Act. In W. P. No. 217 of 1960, the petitioner prays for the issue of a writ of certiorari or other appropriate writ for quashing an order of assessment made by the Gift Tax Officer. Since the same question of the proper construction of the provisions of the Act is raised in the two petitions, they are dealt with together. The facts relating to each case are however different and they will be set out briefly.
(2) The petitioner in the first of these writs had made five gifts, four of which were of either Rs. 10,000, or below and one of Rs. 20,000. By a notice dated 30th October 1958, the Gift Tax Officer called upon the petitioner to submit a return for the assessment year 1958-59. In the form of return which was enclosed to the notice, the petitioner was required to aggregate the value of the taxable gifts made during the account year relating to the assessment year 1958-59. The petitioner's contention is that undet the charging provisions of the Act, the tax is payable on each gift subject to the exceptions and exemptions provided in the Act and that there is no provision in the Act for aggregating the value of all gifts made by a person during the previous year. It is claimed that Rule 3 of the Gift Tax Rules of 1958 framed by the Central Board of Revenue in exercise of the powers conferred by S. 46 of the Act travels beyond the provisions of the Act, in seeking to aggregate all the gifts made during the previous year and in levying tax on the basis of such aggregation. According to the petitioner, only the gift of Rs. 20,000, is taxable to the extent it exceeds the maximum laid down in S. 5(2) of the Act. The proceedings of the Gift Tax Officer calling for the return in the manner stated above are attacked as beyond jurisdiction.
(3) In W. P. No. 217 of 1960, the validity of the assessment order for the assessment year 1958-59 is in question. The petitioner therein had made gifts to a total of Rs. 65,250, in favour of his sons in the relevant account year. From the counter affidavit filed by the department, it appears that in favour of each of his four sons, the petitioner had made two gifts. Of these eight gifts made on various dates during the previous year, four are each below Rs. 10,000: the remaining are each either Rs. 10,000 or above. The petitioner contended before the Gift Tax Officer that the gifts were not liable to tax under S. 5(1)(xii) as they had been made for the purpose of education of the sons. The Gift Tax Officer refused to accept the claim that the whole of the amounts so gifted could be taken out of the operation of the Act as reasonable expenses for the education of the children. He allowed only an estimated sum of Rs. 1,000 each.
The petitioner made the further claim that the gifts should not be aggregated and that S. 5(2) of the Act should be so applied as to exempt any gift which was not more than Rs. 10,000 in value. This contention was also rejected and an assessment was made on the total value of the taxable gifts fixed at Rs. 51,250. It will be noticed that in arriving at this figure, the Gift Tax Officer allowed a sum of Rs. 10,000, as exemption under S. 5(2) of the Act as wel as a aum of Rs. 1000 for each of the sons under S. 5(2)(xii) of the Act. It may be mentioned that in the course of the hearing of the petition, the finding of the Gift Tax Officer that in so far as S. 5(1)(xii) was concerned, the allowance of Rs. 1000 was the reasonable expense of the education of each son, was not challenged. The petitioner only attacked the validity of the aggregation of the gifts. Contending that such an aggregation of the gifts, contending that such an aggregation is not permitted by any of the provisions of the Act.
(4) The Gift Tax Act of 1958 is styled as "An Act to provide for the levy of gift tax". Section 3 which is the charging section, reads :
"Subject to the other provisions contained in this Act. There shall be charged for every financial year commencing on and from the 1st day of April 1958, a tax (hereinafter referred to as gift tax) in respect of the gifts, if any, made by a person during the previous year (other than gifts made before the 1st day of April 1937) at the rate or rates specified in the schedule."
In the schedule to the Act, the rates of gift-tax set out:
1. On the first Rs. 50,000 of the value of all taxable gifts.........5 per cent.
2. On the next Rs. 50,000 of the value of all taxable gifts......... 6 Per cent and so on."
Reading Sec. 3 and the schedule to the Act, the logical result would appear to be that the total value of all gifts is to be computed and the appropriate rate of tax applied to any particular case of assessment. The expression "taxable gifts" appearing in the schedule is itself defined in S. 2(xxiii) to mean "gifts chargeable to gift tax under this Act." It accordingly follows that in bringing to charge the gifts referred to in S. 3, it is only the taxable gifts that have to be taken into consideration. Section 5 provides for exemption in respect of certain gifts. Section 5(1) states : "Gift tax shall not be charged under this Act in respect of gifts made by any ;person..." and proceeds to set out the classes of gifts to which the exemption applies. Sub-section (2) of S. 5 also provides "without prejudice to the provisions contained in sub-section (1), gift tax shall not be charged under this Act in respect of gifts made by any person during the previous year subject to a maximum of Rupees ten thousand in value." It is clear that both sub-secs. (1) and (2) will operate in respect of gifts "made by any person during the previous year" and that barring the gifts set out in S. 5, to the limits specified therein, all other gifts are taxable gifts within the meaning of S. 2(xiii) of the Act.
(5) Even a cursory reading of S. 3 of the Act brings out prominently two features. The first is that the charge to tax is "for every financial year" in respect of the gifts made by a person during the previous year. The second is that the rate of tax is as specified in the schedule. The normal interpretation which one would be inclined to place upon the section so worded would be that all the transactions by way of gifts made during a particular period are being brought to tax under the Sec. 3. Whether the section would be capable of a different interpretation if instead of "There shall be charged for every financial year.... a tax.... in respect of the gifts, if any, made by a person during the previous year...." the section had been worded as follows : "There shall be charged during every financial year...... a tax....... in respect of every gift made by a person during the previous year...." it is not necessary to consider. But that appears to be the sum and substance of the contentions of he petitioners in these two writ petitions.
What is claimed is that even the section as it stands worded, significantly omits the word "total" or any other equivalent expression, and that this omission should lead to the conclusion advanced by the petitioners. It is pointed out that in the other fiscal enactments like the Income-tax Act, the charge is laid upon the total income of the previous year of every person, etc. Sec. 34 of the Estate Duty Act also specifically provides for the aggregation of all kinds of property liable to the estate duty. The learned counsel claims that the legislature having had before it such enactments as the above, where clear and unambiguous reference is made to the total income or the totality of the estate sought to be brought under charge, has consciously departed from those modes of approach in so far as the gift tax is concerned, and must, therefore, be deemed to have decided against the aggregation of the gifts.
(6) We have been referred to the Australian enactment, the Gift Duty Act, 1941-1947. Sec. 4 thereof reads :
"Gifts duty at the rates set forth in the schedule to this Act, shall be levied and paid in respect of every gift made on or after the date of the commencement of this Act....."
The Schedule to that Act, providing for the rates of duty, defines the expression "value of all gifts" and fixes the rates of duty on the basis of the value of all gifts made during a specified period subject to certain exemptions. The argument based upon the wording of the Australian Act is shortly this. The pattern of the schedule to the Indian Act, which takes in the value of all taxable gifts for the purpose of fixing the rate, is almost similar to the schedule to the Australian Act, where also the value of all gifts made during a certain period, subject to certain exemptions is taken for the purpose of fixing the rate. It is claimed that in just the same manner, the charging section in the Indian Act must be considered to bring to charge every gift, not the totality of the gifts. On a point of fact, however, even the acceptance of this argument would not alter the measure of the tax. If the learned counsel is right in claiming that the value of all taxable gifts during a specified period is to be taken only for the purpose of fixing the rate, it would really make no difference whether that rate is applied to each gift or to the totality of the gifts.
But the more important claim on the part of the petitioners is however that each gift is eligible for the exemption limits contained in S. 5(1) and Sec. 5(2) of the Act, which would certainly make a considerable difference to the amount of tax leviable. We are not, however, satisfied that we can derive any useful assistance from the phraseology adopted in the Australian Act. Though that Act brings to charge every gift, the measure of tax imposed is really on the totality of the gifts made by the person, since the exemption is granted only in respect of the total value of the gifts. The real question then for consideration is whether the exemption that is contemplated in Ss. 5(1) and 5(2) of our Act applies to each gift.
(7) We pointed out that in Sec. 3 the tax is levied in respect of the gifts, if any, made by any person during the previous year. The exemptions under S. 5(1) also are "in respect of gifts made by any person during the previous year". Section 5(2) again adopts precisely the same form of expression. We are unable to see how these exemptions can be held to operate in respect of each gift. It is not as if the statute stated that gift tax shall not be charged in respect of any gift which is below a certain value. But the clear content of the expression "in respect of gifts made during the previous year" is that the totality of the gifts has to be taken and exemption granted up to the limits specified in the section.
(8) Some of the other sections of the Act also give unmistakable indication that the charge in not in respect of every gift with the eligibility for exemptions in respect of each individual gift but only in respect of the totality of the gifts. The learned counsel for the petitioners purported to argue that if the gift tax is worked in the manner intended by the department, it would lead to certain anamolies. Section 29 of the Act provided that where in the opinion of the Gift Tax Officer the tax cannot be recovered form the donor, it may be recovered form the donee. The learned counsel claimed that where a person receives a gift of less than Rs. 10,000 which normally would not be liable to tax, the tax is yet made recoverable from him on the basis of other gifts made by the donor, if the totality of such gifts exceeds the exempted maximum. It is true that had that been the only gift made by the donor, it would not be liable to tax. If the totality of the gifts exceeds the exempted maximum, each and every one of the donees is placed in a like position. In claiming that anomalous results would follow, the learned counsel ignores the proviso to the section which clearly lays a limit to the extent of the amount that could be recovered form any particular donee: such amount shall not exceed that portion of the gift tax which is attributable to the value of the gift made to the donee by he donor as at the date of the gift.
It is clear that every one of the donees is made liable to a proportionate share of the gift tax payable by the donor. We can really see no basis for the argument that any disproportionately heavy burden is thrown upon any particular donee by reason of S. 29. Nor is there anything in S. 30, which creates a charge in respect of gift tax on the immoveable property comprised in any gift, to support the contention that the totality of the gift, to support the contention that the totality of the gifts is not the matter for consideration under S. 3 of the Act. Under S. 30, where any gift comprises immoveable property, the gift tax payable in respect of such gift shall be a first charge on that property. It is on doubt true that in respect of that portion of the gifts which does not consist of immoveable property, no charge is created; one of the donees who gets immoveable property by reason of a gift takes it with the attendant charge upon it; the other donees who may take only moveable property are not affected by any such charge. By there is nothing in S. 30 which suggests that the first mentioned person who takes immoveable property is made liable for the entirety of the gift tax payable by the donor. On the other hand, reading Ss. 29 and 30 together, the extent of the charge created by S. 30 will obviously be only to the proportionate extent of the tax attributable to that part of the gift. We may point out further that if the charge laid by S. 3 was in respect of each gift with the added benefit of the limit of exemption in respect of each gift, the proviso to S. 29 would appear to be wholly inappropriate.
(9) The argument of the learned counsel that the reference to the previous year in S. 3 or S. 5 is only for the purpose of convenience of assessment to tax and that it has no relevance to the question of aggregating the gifts made during such previous year fails to impress us as sound. What is contemplated by the Act both for the purpose of the charge under S. 3, and for the purpose of exemptions under S. 5, is obviously the gifts, if any, made during the previous year. This phrase cannot be split into separate parts for the purpose of serving the mode of interpretation sought to be adopted by the petitioners. The learned Advocate-General also points out that S. 18 of the Act, which has since been amended, both in the form, in which it stood prior to the amendment and subsequently, gives ample support for the view, that it is only the totality of the gifts that has to be taken for the purposes of the Act.
Section 18, as it stood prior to the amendment by Act XIII of 1960, laid down that if a person made a taxable gift of the value of not less than Rs. 10,000 and paid an amount of tax at the rates specified in the section within 15 days of making the gift, he would be entitled to a rebate at the time of assessment. The section in its old form fixed only three slabs for the purpose of the advance payment of tax. The subsequent amendment made it quite clear that even this advance payment was to be calculated on the basis of the rates specified in the Schedule taking into account the totality of the gifts made by the person upto the date on which tax in respect of that gift was so paid in advance. If, as contended by the petitioners, each gift was individually the subject of the charge under Sec. 3, there would hardly be any scope for any future assessment and adjustment of the advance tax paid under Sec. 18.
(10) It is axiomatic that the statute has to be read as a whole and that the schedule to the Act is as much part of the Act as any other provision thereof. Rules of interpretation even require that if an enactment in a schedule other than one merely of form contradicts an earlier clause, it is the schedule that would prevail. Not only is the schedule to the Gift Tax Act clear and specific in its requirement that the tax is in respect of the total value of the taxable gifts made during the previous year but the other relevant provisions of the Act, including in particular the charging section itself, give no room for entertaining a contrary view.
(11) We may add that the Andhra Pradesh High Court in Jupudi Sesharatnam v. Gift Tax Officer, Palacole, , also held on a consideration of the scheme of the Act that the aggregation of the gifts made during a particular year is what is contemplated by the charging section itself. With respect we are in agreement with this conclusion.
(12) Both the writ petitions accordingly fail and are dismissed with costs. Counsel's fee, one set (Rs. 250) to be paid in moieties by the two petitioners.
(13) Petitions dismissed.