FERNANDO A.J.—Ghinaselcerav. Commissioner of Income Tax
1954Present: Gunasekara J. and Fernando A.J.
PRINS GTJNASEKERA, Appellant, and COMMISSIONER OFINCOME TAX, Respondent
S. G. 317—Case Stated under the Income Tax Ordinance
Income Tax Ordinance (Cap. 188)—Section 16 (1) (e)—Allowance thereunder—.Conditions of (a) common residence and (6) maintenance.
An assessee who bears the expense of the maintenance of a relative is notentitled to claim allowance under section 16 (1) (e) of the Income Tax Ordinanceunless he can also show that the relative resided or had his Some with theassessee.
V_/fASE stated under section 74 of the Income Tax Ordinance.
N. M. de Silva, with M. Rafeek, for the assessee appellant.
M. Tiruchelvam, Crown Counsel, for the Commissioner of Ineohie Tax.rCur. adv. vuU.
July 27, 1954. Feknashdo A.J.—
The decision of the Board of Review for Income Tax, u|ion which acase has been stated for the opinion of this Court, was in the followingterms :—
The appellant is employed by the Times of Ceylon and resides atNo. 9, Asoka Gardens. His parents live outside Colombo. He hasseveral sisters and brothers. One sister and two brothers attend
FERNANDO A.J.—Gunasekera v. Commissioner of Income Tax 567
school. The sister is a boarder at St. Bridget’s Convent and the twobrothers at Ananda Sastralaya, Kotte. The appellant pays theboarding fees, buys the school books and generally spends for threechildren, but even during the period the children are at school theparents sometimes send pocket Aoney and buy clothes for them.When the vacation commences the children go home to their parents.Th^e vacations last for about 2-| months. During that periodthe children are maintained by the parents. It was admitted hereby the appellant’s Counsel that the mother was a teacher employedin a Government School and the father owns some property. Weregret that we are unable to hold that the sister and the two brothers“ lived ” with the appellant and was “ maintained'by ” the appellant“ throughout the year preceding the year of assessment ”. We there-fore dismiss the appeal. We make no order as to costs.
The question of law presented in the case stated is whether “ theBoard of Review was wrong in holding that the sister and the twobrothers of the appellant did not live with and were not maintained bythe appellant throughout the year preceding the year of assessment
The que&tioil inVolves^the construction of S. 16 (1) (e) of the Income TaxOrdinance (Cap. 188) which entitles a person to claim a deduction fromhis assessable income of “ an allowance of Rs, 250 in respect of eachindividual who lived with him and was maintained by him throughout theyear ….. who was a relative (i.e., a parent, brother, sister or child)of his or his wife ”. If the expression “ lived with him ” which occursin the section is to be understood in its ordinary connotation that theassessee’s brothers and sisters should actually have resided or had theirhomes with the assessee throughout the year, then the assessee is clearlydisentitled *fco claim the allowance : the admitted facts are that, evenduring such periods of the year as were not spent in boarding school,the brothers and sisters actually resided, not with the assessee but withtheir parents.
But it is^ contended that the object of the section is to grant theallowance to a person who completely or substantially undertakes theburden of paying for the education, subsistence and other needs of arelative, or who, in other words, acts “ in loco parentis ” in maintaininga brother or sister. In order, however, to support this contention,Counsel was compelled to submit that the words “ lived with him ” areredundant and do not impose any requirement or condition additionalto that which refers to the maintenance of the relative by the assessee.If the fact that a relative is entirely or substantially maintained by anassessee is, in the intention of the Legislature, sufficient by itself to founda claim for, the allowance, then the reference to living with the assesseeis not merely redundant: it actually misleads the reader into an inter-pretation directly in conflict with the (alleged) intention. The words ofthe statute clearly and unambiguously impose two independentconditions of (a) common residence and (6) maintenance, and I feelquite unable, by^ ignoring the first of them, to construe the statute in asense fundamentally different from that which the words bear on their
Kandiah ®. Thangtvmany
face. It is perhaps necessary to add that on the facts of the present casewe are not called upon to decide whether the section requires, commonresidence and maintenance during the relevant year without anyinterruption whatsoever.
The requirement of common residence undoubtedly involves the denialof the benefit of the section in cases even more “meritorious ” thfcn thepresent one, for instance a case where an assessee bears the entire expenseof the care and maintenance in some institution of an indigent andincurable relative. But the furthest extent to which a Court can bemoved by such circumstances is to share with the Board of Review rbgretthat the relief is not available, and to suggest that this matter meritsconsideration by the Legislature.
I would express the opinion, on the question stated, that the decisiondf the Board of Review was correct for the reason that the sister andbrothers of the assessee did not “ live ” with bim within the meaningof the relevant section. As this appears to be in the nature of a “ test ”ease,' I would make no order as to the costs of the proceedings in thisCourt.
Gttnasekaba J.—I agree.