COMMISSIONER OF STAMPS v. BANDA

016-NLR-NLR-V-31-COMMISSIONER-OF-STAMPS-v.-BANDA.pdf


( 00 )
1929.Present : Drieberg and Akbar JJ.
COMMISSIONER OF STAMPS v. BANDA.
64—D. C. (Inty. Avissawella, 71-
Stamps—Security bond by administrator—Liability to duty—OrdinanceNo. 22 of 1909, Schedule B, Part I.
A' security bond given by an administrator is liable to stampduty under item 15 (b) of Part I. of Schedule B of the StampsOrdinance.
^^PPEAL from an order of tht District Judge of Avissawella.
The respondent was on January 21, 1928, ordered by the DistrictCourt of Avissawella to give security by bond in Rs. 750 for thedue administration of the estate of a deceased person under section538 of the Civil Procedure Code. The question is whether thebond was liable to be stamped under the Stamps Ordinance, No. 22of 1909.
The learned District Judge held that bonds executed in testa-mentary proceedings were free from stamp duty.
M. W. H. de Silva, C.C., for Commissioner of Stamps—Seotion 4 of Ordinance No. 22 of 1909 imposes a duty on everyinstrument in the Schedule B, which not having been previouslyexecuted, is . executed in. Ceylon. A bond by an administrator inform’90 is. a bond within the meaning of that word in item 15 ofthe . schedule. It is therefore subject to the duty stated in thatitem unless especially exempted. Under Ordinance No. 82 of1919 a bond by an administrator fell under Part I. as well as Part
( 81 )
III. By the amending Ordinance No. 19 of 1927 bond has beenremoved from Part IQ. 'with the result that it now falls underPart I. only. The learned District Judge was wrong in consider-ing tiie intention of the Legislature, in omitting the word “ bond ’’from Part ni. The intention of the Legislature is relevant onlywhen there is an ambiguity. In the present case there is no suchambiguity at all.
The District Judge has treated Part IQ. as exhaustive of theduties in testamentary proceedings. He has apparently misreadthe words “ not falling under any of the following heads ” at theend of the first sentence in the beginning of Schedule B. Thesewords qualify only the words " on other instruments, matters,and things. ” Further, the words “ not falling under ” clearlymean “ not appearing in ” “ or not included under.” The wordsappearing against Part I., Part n., Part IQ., &c., are merely wordsdescribing the contents of such parts. The description of Part V.,as “miscellaneous” clearly shows that the words “ falling under”cannot be construed as “ which should fall under,” and shows thatthe parts are not intended to be exhaustive.
Before the amendment of 1927 the Crown could elect to chargeduty under either Part I. or Part QI. See the case of In re v.Coomaraswamy, Notary Public,l The result at the amendmentis to confine the Crown to the first part of the schedule.
The fact that in Fart II. the words “ Bail bond or other bondor recognizance. The same duty as a mortgage bond for the sameamount ” appear is immaterial. The result would have beenthe same whether these words had been inserted or not.
An instrument cannot be exempted from duty by implication.It is clear from item 15 (a) that no bond of any kind was intendedto be exempted from duty.
F. Perera, for respondent.—The District Judge is correctin regarding Part ni. as exhaustive of duties in testamentarycases. The practice has been only to charge duty on the itemsstated in that part. When an item which had been there isomitted the implication is that it was intended to free' it fromduty. The intention is therefore relevant as the act of omittingthis item made the enactment ambiguous.
It is the duty of the Legislature to speak clearly especially incases where the tax is to be imposed on the subject.
The contention that the words “ not falling under any of theheads " qualify only the wordB " on other instruments, &c.,” isbased on a mere semicolon. Marks of punctuation are not a■ part of the statute. Those words must be taken with the earlierwords as well as the later words. In item 15 (a) the words thisschedule must be construed as this part of the schedule.
» (mi) 27 n. l. b. eg.
198ft.
Commis-sioner ofStamps v.Banda
( 82 )
1989.
Commis-sioner ofSkimps v.Banda
June 25, 1929- Drieberg J.—
The matter‘for decision is whether a security bond by an adminis-trator is liable to stamp duty under the Stamp Ordinance of 1909.
The value of the estate is Bs. 4,250 and the respondent wasordered to give security in a sum of Bs. 750. The bond executedfor this purpose is in the form 90 of the second schedule of theCivil Procedure Code; by it the administrator is bound to theSecretary of the District Court in a certain sum, the condition of .the bond being that it should be void on the administrator dulycompleting the administration of the estate.
A bond of this nature undoubtedly falls under Part I. of theschedule to the Stamp Ordinance and is subject to an ad valorenduty. In Part II. of the schedule, which deals with the duties inland proceedings, provision is made for a “ bail bond or otherbond or recognizance,” the duty being the same as for a mortgagebond for the same amount. Until the amending Ordinance No. 19of 1927 bonds were mentioned in Part HI., which deals with theduties in testamentary proceedings, and were liable to duty accord-ing to the class of .the proceeding, those in Class I., under Bs. 2,500,being with other documents free of duty. By Ordinance No. 19of 1927 a new table of duties was substituted in testamentaryproceedings, the class free of duty being raised to Bs. 5,000; fromthis table bonds are omitted.
The learned District Judge considered the question from thepoint of view of the intention of the Legislature in making thisamendment and, as it was thought, altering the law; the reportof the Taxation Committee was referred to, and he has given hisreasons for holding that the recommendation of the Committeethat bonds should be deleted from Part III. and allowed to besubject to the ad valorem duty was not carried into effect by themere omission of bonds from Part III. in Ordinance No. 19 of1927 and that bonds executed for the purpose of testamentaryproceedings are now free from duty.
There is no reason for inquiry into the intention of the Legislature,for the provisions of the Ordinance are clear. The scheme ofarrangement in Schedule B, which enumerates all instrumentsand documents which are chargeable with stamp duty, is this :In Part I. are two groups of instruments and documents; thefirst group consists of instruments of conveyance, contract, obliga-tion, security for money, and deeds in general; the second groupconsists of ” other instruments, matters, and things ” i.e., otherthan those previously stated, and of these those which fall underParts II., m., IV., and V., are excluded from duty under Part I.The words “ not falling under any of the following heads ” doesr.ot apply to what I have referred to as the first group.
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The bond in question, whether it be regarded as an instrumentof contract, obligation, or of security for money, is within the firstgroup and it would not cease to' be chargeable under Part I. if itfell under any one of the other Parts II., III., IV., or V.
When it fell under Part HI., as it did before the amendment in1927, it did not for that reason cease to be chargeable under Part
; it was liable under both heads and the Crown could elect underwhich it should be charged. The fact that it is now omitted fromPart HI. cannot, as I have pointed out; affect its liability underPart I.
The appeal is allowed, but without costs either.in this Court orin the Court below.
Akbar J.—
The appeal in this case is on a simple point of law. Therespondent was on January 21, 1928, ordered by the DistrictCourt, Avissawella, to give security by bond in Rs. 750 for the dueadministration of the estate of a deceased under section 538 of theCivil Procedure Code. The question for decision is whether thisbond is liable to be stamped under the Stamp Ordinance, No. 22 of1909. Schedule B of the Stamp Ordinance is divided into 5 parts;Part III. contains the duty in testamentary proceedings. Theword “bond” appeared in Part III. of Schedule B before theOrdinance was finally amended by an Ordinance of 1927. ThisOrdinance of 1927 re-enacts Part III. of the schedule, but the word“ bond ” is omitted from Part III. The question is whether bondsunder section 53S of the Civil Procedure Cede are exempt frontstamp duty or liable to bo stamped under any one of the otherparts of Schedule B. A certain paragraph of a Sessional Paper XX.of 1927, being a report of the Taxation Committee of theLegislative Council, was quoted in the District Court to prove theintention of the Legislature in omitting the item “ bond. ” This, ofcourse, was clearly wrong because the Ordinance must be interpretedwithin its four corners. An examination of the Ordinance show'sthe following things:—The liability to stamp instruments and docu-ments in Schedule B is provided for by section 4 of the Ordinance.At the top of Schedule B the different parts are* enumerated andPart I. is as follows:—“ Containing the duties of instruments ofconveyance, contract, obligation, and security for money; ondeeds in general and on other instruments, matters and thingsnot falling under any of the following heads.” It is contended forthe Crown that this bond being an ordinary bond providing securityfor money (see form 90 in the Civil Procedure Code) is liable to bestamped under item 15 (b) of Part I. of Schedule B of OrdinanceNo. 22 of 1909. It is further argued that the words “ not fallingunder any of the following heads ” at the top of Schedule B only
31/9-
1989.
Commis-sioner ofStamps v.Banda
( 84 )
1929-
Akbar J.
Commis-sioner ofStamps v.Banda
limit the words ” other instruments, matters, and things.” Thisappears to be the obvious intention of the Legislature. Thereforethis bond will be liable to be stamped under item 15 (b) of Part 1.of the schedule. I am further inclined to hold that the words“ not falling under any of the following heads ” mean “ not fallingunder any of the items enumerated in Parts II., III., IV., and V.”This seems to be the only possible interpretation because Part V.is headed Miscellaneous ” and obviously “ Miscellaneous ” doesnot mean everything in this world, but only the items enumeratedunder Part V. The matter is concluded beyond any doubt if thewhole of item 15 of Part I. is carefully scrutinized. Item 15is as follows:—" Bond of any kind whatever not otherwise chargedin this schedule nor expressly exempted from all stamp duty,Rs. 10.” Obviously the word “ schedule ” in this item refersto the whole Schedule B (see in this connection item 2, Part I.).Therefore the intention of item 15 in Part I. is to catch up all bondsand make them liable to stamp duty. It has been held by thisCourt in the case of In the Matter of the Application of V. Coomara-ewamy, Notary Public,1 that whenever a document is liable to bestamped under more than one head, the Crown can elect to levythe highest duty chargeable under any one of these heads. Ithink, therefore, that the omission of the word “ bond ” by theamending Ordinance of 1927 has the effect of making this bondliable to be stamped under item 15 (6) of Part I. The DistrictJudge has thought otherwise, because at the bottom of Part II.of the schedule we find the words ” Bail bond or other bond orrecognizance. The same duty as a mortgage bond for the sameamount.” He was of opinion that because there were no suchitem enumerated in Part HI. by the Ordinance of 1927 amendingthe Stamp Ordinance, therefore the intention of the Legislaturewas to repeal the duty on bonds in testamentary proceedings.I do not think the District Judge’s reasoning is sound. If theitem referred to by the District Judge in Part II. was not inserted,the effect would be to make such bonds chargeable under any oneof the sub-heads of item 15. The words ” The same duty as amortgage bond for the same amount ” were inserted to make itclear that the bond was to be stamped under item 15 (a) or 15 (b)and not under any. other sub-head of item 15. For these reasonsI am of opinion that the learned District Judge was wrong.. Iwould, therefore, hold that such bonds are liable to be stampedunder item 15 (b) of Part I. of Schedule B of the Stamp Ordinance.The appeal is allowed, but I would give no costs either in this Courtor for the argument in the lower Court.
Appeal allowed
»(1927) 27 N. L. R. 62.