Provisos must also be numbered for easy reading, understanding ,referencing and uniform understanding by all concerned and to avoid confusions and disputes.

[DEV KUMAR KOTHARI]

Provisos by way of expressions like provided, provided further , provided also, provided further more etc. without difficulty causes difficulty in understanding and reading provisions of proviso.

Drafting of provisions:

In any provision a proviso is provided for exceptions or special circumstances in which some additional conditions can be added. We find in Income Tax Act, generally provisos are not numbered and expressions like provided, provided further , provided also, provided furthermore, furthermore  are used without numbering any proviso.

In such circumstances reader is required to count proviso number for referencing purposes and for drafting any document or submissions in course of proceedings, providing opinion etc. A mistake in counting can cause confusion and mistakes.

Problem aggravate further when various expressions are used one after other or at different places with different expressions.

Whether provided is one proviso and proviso further is extension of it or another proviso is difficult to understand and different people can count them differently. For example if e consider provided and provided also as an extension  then these two will be counted as one. If we count them as two then numbers will increase.

Problem is more acute when reading is online or on computer in e-book or saved documents. In such a case it may become necessary to refer to a physical printed book or the document.

This problem is faced many times during representing cases before authorities and courts. Officer or judge may count proviso differently and counsel differently.

Example:

For an example S.139(1) is reproduced below which contains several provisos without numbering. The words proviso etc. are presented in red color for easy to identify proviso and  a serial number  for each such proviso treating it as separate.

There is one proviso simply as ‘proviso’, one is with addition of ‘further’ and five are with addition of also. So there are seven counts. If provided further is counted as an extension and same numbered then there will be six provisos. One as proviso and five as provided also.

Return of income.

139. ¹[(1) Every person,-

(a) being a company ²[or a firm]; or

(b) being a person other than a company ³[or a firm], if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax,

shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed :

Provided (one) that a person referred to in clause (b), who is not required to furnish a return under this sub-section and residing in such area as may be specified by the Board in this behalf by notification in the Official Gazette, and who ⁴[during the previous year incurs an expenditure of fifty thousand rupees or more towards consumption of electricity or] at any time during the previous year fulfils any one of the following conditions, namely :-

(i) is in occupation of an immovable property exceeding a specified floor area, whether by way of ownership, tenancy or otherwise, as may be specified by the Board in this behalf; or

(ii) is the owner or the lessee of a motor vehicle other than a two-wheeled motor vehicle, whether having any detachable side car having extra wheel attached to such two-wheeled motor vehicle or not; or

(iii)⁵[***]

(iv) has incurred expenditure for himself or any other person on travel to any foreign country; or

(v) is the holder of a credit card, not being an "add-on" card, issued by any bank or institution; or

(vi) is a member of a club where entrance fee charged is twenty-five thousand rupees or more,

shall furnish a return, of his income ⁶[during any previous year ending before the 1st day of April, 2005], on or before the due date in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed :

Provided further  (two) that the Central Government may, by notification in the Official Gazette, specify the class or classes of persons to whom the provisions of the first proviso shall not apply:

Provided also (three)  that every company ⁷[or a firm] shall furnish on or before the due date the return in respect of its income or loss in every previous year :

⁷¹[Provided also (four)  that a person, being a resident other than not ordinarily resident in India within the meaning of clause (6) of section 6, who is not required to furnish a return under this sub-section and who at any time during the previous year,-

(a) holds, as a beneficial owner or otherwise, any asset (including any financial interest in any entity) located outside India or has signing authority in any account located outside India; or

(b) is a beneficiary of any asset (including any financial interest in any entity) located outside India,

shall furnish, on or before the due date, a return in respect of his income or loss for the previous year in such form and verified in such manner and setting forth such other particulars as may be prescribed:

Provided also ( five) that nothing contained in the fourth proviso shall apply to an individual, being a beneficiary of any asset (including any financial interest in any entity) located outside India where, income, if any, arising from such asset is includible in the income of the person referred to in clause (a) of that proviso in accordance with the provisions of this Act:]

⁸[Provided also (six)  that every person, being an individual or a Hindu undivided family or an association of persons or a body of individuals, whether incorporated or not, or an artificial juridical person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year, without giving effect to the ⁷⁷[provisions of clause (38) of section 10 or section 10A ] or section 10B or section 10BA ⁸⁷[or section 54 or section 54B or section 54D or section 54EC or section 54F or section 54G or section 54GA or section 54GB] or Chapter VI-A exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed.]

⁸⁸[Provided also  (seven) that a person referred to in clause (b), who is not required to furnish a return under this sub-section, and who during the previous year––

(i) has deposited an amount or aggregate of the amounts exceeding one crore rupees in one or more current accounts maintained with a banking company or a co-operative bank; or

(ii) has incurred expenditure of an amount or aggregate of the amounts exceeding two lakh rupees for himself or any other person for travel to a foreign country; or

(iii) has incurred expenditure of an amount or aggregate of the amounts exceeding one lakh rupees towards consumption of electricity; or

(iv) fulfils such other conditions as may be prescribed,

shall furnish a return of his income on or before the due date in such form and verified in such manner and setting forth such other particulars, as may be prescribed.]

Explanation 1.-For the purposes of this sub-section, the expression "motor vehicle" shall have the meaning assigned to it in clause (28) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988).

Explanation 2.-In this sub-section, "due date" means,-

(a) where the assessee ⁶⁵[other than an assessee referred to in clause (aa)]  is-

(i) a company ⁶⁰[******]; or

(ii) a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force; or

(iii) a ⁹⁰[****] partner of a firm whose accounts are required to be audited under this Act or under any other law for the time being in force ⁹²[or the spouse of such partner if the provisions of section 5A applies to such spouse],

the ⁹¹[31st day of October] of the assessment year;

⁶¹[(aa)  in the case of an assessee ⁹³[, including the partners of the firm or the spouse of such partner (if the provisions of section 5A applies to such spouse) being such assessee,] ⁶⁶[who] is required to furnish a report referred to in section 92E, the 30th day of November of the assessment year;]

(b) in the case of a person other than a company, referred to in the first proviso to this sub-section, the 31st day of October of the assessment year;

(c) in the case of any other assessee, the 31st day of July of the assessment year.

Explanation 3.-For the purposes of this sub-section, the expression "travel to any foreign country" does not include travel to the neighbouring countries or to such places of pilgrimage as the Board may specify in this behalf by notification in the Official Gazette.]

⁷²[Explanation 4. - For the purposes of this section “beneficial owner” in respect of an asset means an individual who has provided, directly or indirectly, consideration for the asset for the immediate or future benefit, direct or indirect, of himself or any other person.

Explanation 5. - For the purposes of this section “beneficiary” in respect of an asset means an individual who derives benefit from the asset during the pervious year and the consideration for such asset has been provided by any person other than such beneficiary.]

⁸⁹[Explanation 6.-For the purposes of this sub-section,-

(a) “banking company” shall have the meaning assigned to it in clause (i) of the Explanation to section 269SS;

(b) “co-operative bank” shall have the meaning assigned to it in clause (ii) of the Explanation to section 269SS.]

As per count by author the seventh proviso , (with footnote 88)  has achieved information about its insertion as follows:

88. Inserted vide FINANCE (NO. 2) ACT, 2019 w.e.f. 01-04-2020”.

Counting of proviso in a reported case:

It seems that this proviso has been considered as sixth proviso in a recent judgment reported as:

2021 (10) TMI 551 - ITAT RAJKOT  SMT. ASHABA RAJENDRASINH ZALA VERSUS CIT (A) , JAMNAGAR  I.T.A. No. 409/Rjt/2018  Dated: - 30 September 2021, wherein it has been held that the proviso is applicable from AY 2020-21 and does not apply to the case in hand relating to an earlier year i.e. AY 2008-09.

Therefore, counsels as well as honorable members have treated it as sixth proviso. That means the proviso with provided further is considered as part of proviso no.1 as per count  by author.

Web search for seventh proviso  to section 139 of income tax Act:

On search at the following link information found is as follows:

GOOGLE SEARCH

As per the 7th Proviso to Section 139 (1), it is mandatory to file the income tax return for a certain class of people who carries out certain high-value transactions mentioned in the section even though their total income is below the basic exemption limit (who are otherwise not required to file the income tax return) ...19-Feb-2022

https://help.myitreturn.com/hc/en-us/articles/360055649851-Filing-ITR-under-the-7th-Proviso-to-Section-139-1- Contains an article on website of  myitreturns .com also this proviso has been conceded as seventh proviso.

https://taxguru.in/income-tax/mandatory-income-tax-return-seventh-proviso-section-1391-income-tax-act-1961.html

contains an article ‘Mandatory Income Tax Return under Seventh Proviso to Section 139(1) of Income Tax Act, 1961 ‘ by Sushil Kumar Antal,  LL.M, ACS, CA(F), MBA(FIN), M.COM ,Advocate  who has also considered it as seventh proviso.
 

Second or first proviso?:

The language and contents of the second proviso  (as per count by author and other authors as well) with use of expression ‘provided further ‘ is such that it can be considered as an independent proviso as well as an extension of first proviso. In fact the said second proviso is a proviso on the first proviso to provide exceptions of first proviso.

Why numbering is not provided?

It is surprising that in spite of using various provisos to many  of provision  provisos  are not numbered even though there can be large number of provisos with different expressions at beginning. Whereas Explanations are numbered.

There are  theories and rules  about drafting with proviso and explanations. With changing  times and particularly in cases where large number of amendments are introduced, clarity is required.

Therefore, author request and suggest the legislators  that in taxations provisions ( and in other enactments also) , provisos  should also be numbered so that there is clarity, and  no dispute about independence or extensions of provisos.