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TMI Blog1978 (5) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ng terms: "Please accept my sincere sympathy in your bereavement. You may be aware that I wrote to Mr. Goswami on 4th Dec., last in regard to the benefit (a refund of contributions) which was due to him from the Pension Fund in consequence of the expiration of his contract on 31st December. The recent extension of his contract results in his being a participant in the Fund upto the date of his death and the benefit payable by the Pension Fund is not now a refund of his contributions but a pension to you as his widow. For this purpose I require a copy of the death certificate. Your pension is regulated by Article 35 of the Regulations of the Fund, a copy of which is enclosed, and will amount to approximately s. 1,792 per annum. It will be payable with effect form 15th Jan, 1970 for your lifetime subject, however, to a remarriage clause. A child's benefit under Article 37 is also due in respect of your son Somnath with effect from 15th Jan, 1970 and will be payable at the rate of $ 600 per annum, until he reaches age of twenty-one provided that he remains unmarried. This pension will be payable to you as your son's natural guardian on condition that you assume this responsibili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion prior to its admission and repaid to that organisation, upon re-employment, for the purpose of recognition of such service as contributory, without interest. 5. Article 35(a) and (b) of the Regulations runs as under: (a) A widow's benefit shall, subject to article 42 and to (b) below, be payable to the surviving female spouse of a participant who was entitled to a retirement, early retirement, deferred retirement or disability benefit on the date of his death, or died in service, if she was married to him at the date of his death in service, or, if he was separate prior to his death, she was married to him at the date of separation and remained married to him until his death. (b) A benefit shall nevertheless not be payable if the participant had commuted his widow's prospective benefit under article 29 or 30, or had commuted a deferred retirement benefit under article 31(c). 6. In the proceeding or assessment to tax for the years under appeals, the Income-tax Officer held that in terms of s. 17(1)(ii) of the Income-tax Act, 1961 the amounts are includible in the assessee's total income inasmuch as salary included any annuity or pension and as such pension received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below: "Sec. 17(1)(ii) of the Act in items provides "that salary includes any annuity or pension." In view of this, pension is taxable as salary under the Income-tax Act. In our opinion there cannot be a different classification when it falls to be considered for the purposes of exemption because otherwise it will amount to assigning two different meanings to the word pension one for the purposes of taxation and the other for the purposes of exemption. It is further to be seen that along with the word salary, the word 'emoluments' is also used in clause (b) of s. 18 of Article V of the Schedule to the Act No. 46 of 1947. One behalf of the Department it was contended that in the interpretation of word 'salary' the rule of ejusdem generis is applicable and therefore, the word 'emoluments' should be given the same meaning as 'salary'. The rule of ejusdem generis applies wherein statute generis words follow specific words but before generic words are interpreted, there must be genus constituted or a category disclosed with reference to which general words can or are intended to be restricted, there must be more than one special mentioned to constitute a genus. The mention of a singl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the month of Oct., 1969: International Labour Office "To your credit . To your debit . A Bass salary 1,129,92 Pension and contribution 105.53 Assignment allowance 100.00 . . Dependent's allowance 33.33 . . Children's allowance 25.00 . . Post adjustment 245.00 . . Total 1,533.25 Total 105.53" 11. Income-tax is a tax on a person in relation to his income. Income in broad sense is all wealth which flows to an assessee other than a mere return of capital. It includes income from any source but it is a gain accruing to capital. I have to consider the look of the nature of payment. The taxability of an amount would depend upon the nature of payment. The taxability of an amount would depend upon the nature of payment and initial receipt as to where it is of a capital or whether it is of revenue nature. In the instant case the assessee's husband was required to pay a part of his income every year for himself, his wife and child. The letter as referred to earlier would indicate that pension was given not only to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh under the scheme the assessee was getting more than what has been contributed by her husband. The amount that the assessee received as beneficiary did not reach her as her income alone which is intended to be charged. It is not a case that the assessee's husband purchased annuity for the provision of his future and his beneficiaries. I cannot give this receipt nomenclature of annuity, pension or salary. I have to remember that tax cannot be imposed by implication and that common-sense view cannot be abjured while construing taxing provisions (see the observations in the case of Sargaoson (Inspector of Taxes) vs. Roberts-76 ITR 269. 12. Thus when pension includes salary and when salary is exempt from taxation in the hands of the officials of United Nations, a fortiori, it could be held that recompense of the amount received by the beneficiary a as result of the contribution by her husband should not come within the purview of the concept of salary or pension. 13. Besides as per Tribunal's decision mentioned supra, pension received by that assessee from United Nations was held to be exempt, a fortiori, it applies to a beneficiary also because two different meanings to a wor ..... 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