Commissioner of Income Tax vs Arasan Fertilisers (P.) Ltd.

Ramaswami, J.—In respect of the assessment year 1966-67 corresponding to the accounting period ending December 31, 1965, the

assessee-company claimed a rebate of 8% on the tax payable on the ground that the company was engaged in the business of manufacture of

fertilisers. This claim was based on Section 80E as it stood at the relevant time read with item 13 of the Fifth Schedule of the Income Tax Act,

1961. The assessee-company purchased bones, hoofs and horns of animals. These are degreased and unnecessary substances like glue and tallow

are eliminated and the residue, after dehydration is pulverised and converted into fertiliser known as bonemeal. The entire process is a mechanical

one. It is, stated that the bonemeal manufactured by the assessee is a fertiliser, rich both in nitrogen and phosphorus. The Income Tax Officer did

not give any rebate and had also not given any reason for not giving the rebate. But the Appellate Assistant Commissioner held that item 13 of the

Fifth Schedule only enumerates certain of the fertilisers and the benefit of rebate is available only to those industries which manufactured those

enumerated items Since the bonemeal is not one of the enumerated items of fertilisers, the assessee was not entitled to any rebate. But the Tribunal

considered that though item 13 uses the word ""namely"" after the word fertilisers and enumerates the number of items, the enumerated items are

only illustrations of the fertilisers and not restrictive of the meaning of the generic word ""fertiliser"". In that view, the claim for rebate was allowed. At

the instance of the revenue, the following question has been referred :

Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the assessee was entitled to a

deduction of 8% of the income for the purpose of ascertaining its taxable income u/s 80E read with item 13 of the Fifth Schedule to the Income

Tax Act, 1961, for the assessment year 1966-67?

Section 80E provided that in the case of a company to which this section applies, where the total income (as computed in accordance with the

other provisions of this Act) includes any profits and gains attributable to the business of generation or distribution of electricity or any other form of

power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule, there

shall be allowed a deduction from such profits and gains of an amount equal to eight per cent. thereof in computing the total income of the

company. There is no dispute that the assessee-company is one to which the section applied. But the only dispute was as to whether the bonemeal

manufactured by the assessee-company is one of the articles or things specified in the list in the Fifth Schedule. The assessee claimed that the

bone-meal manufactured by them would come under item 13 of the Fifth Schedule which reads as follows :

(13) Fertilisers, namely, ammonium sulphate, ammonium sulphate nitrate (double salt), ammonium nitrate, calcium ammonium nitrate (nitro-lime

stone), ammonium chloride, super phosphate, urea and complex fertilisers of synthetic origin containing both nitrogen and phosphorus, such as

ammonium phosphates, ammonium sulphate phosphate and ammonium nitro phosphate.

The question thus revolves on the interpretation placed on this entry. This entry after the word ""fertilisers"" uses the word ""namely"" and

enumerates number of items. There could be no doubt, that within the general description of the fertilisers bonemeal which is ''manufactured by the

assessee-company is comprehended. In fact, the bonemeal, raw and bonemeal steamed, is enumerated as items which were the subject-matter of

the control under the Fertilisers Control Order, 1957. The revenue also did not dispute that the bonemeal would come within the meaning of

fertiliser but what was contended by the revenue was that it is not the manufacture of fertiliser in general that was given the benefit of rebate but

only those enumerated items of fertilisers that were given the benefit. For this interpretation the revenue places reliance on the use of the word

namely"" after the word ""fertilisers"". It is the contention of the revenue that the word ""namely"" restricts the interpretation of the fertilisers to those

that are enumerated, though many other items would also be included in that word; and if the legislature intended to give the full meaning it would

have either used that word alone or given an inclusive definition. We think the learned counsel for the revenue is well founded in this contention.

In Stroud''s Judicial Dictionary of Words and Phrases, fourth edition, volume 3, at page 229, we find the following passage against the word

namely "":

A difference, in grammatical sense, in strictness exists between the words ''namely'' and ''including''. ''Namely'' imports interpretation, i.e., indicates

what is included in the previous term ; but ''including'' imports addition, i.e., indicates something not included.

In Craies on Statute Law, seventh edition, at page 213, we find the following passage:

There are two forms of interpretation clause. In one, where the word defined is declared to ''mean'' so and so, the definition is explanatory and

prima facie restrictive. In the other, where the word defined is declared to '' include '' so and so, the definition is extensive.

To similar effect is a passage in Corpus Juris Secundum, volume LXIV, at page 1084, where it is stated that the term ""namely"" is a term which

imports interpretation, that is, indicates what is included in the previous term. Thus, when the legislature used the expression ""namely"" after the

word, ""fertilisers"", the meaning given to the word should be restricted to those that are enumerated. The legislature has used both the words

namely"" and ""including"" in the same Schedule V in items 13 and 18. Thus, the legislature clearly should have intended in using these different

words in different entries to restrict or enlarge a general meaning and, therefore, we are not entitled to enlarge the meaning of the word ""fertiliser

on any consideration of common usage of the word ""fertiliser"". In fact, the restrictive nature of the use of the word ""namely"" has been even

extended to the interpretation of documents in 1908. The Law Reports, I Chancery Division, at page 185 [Brocket, In re : Dawes v. Miller--

[1908] 1 Ch 185. In that case, while interpreting a will the use of the word ""namely"" was interpreted as equivalent to what the testator meant by

the use of the generic description. We are, therefore, of the view that by the use of the word ""namely"" in item 13, the legislature has restricted the

application to those enumerated items and since the bonemeal manufactured by the assessee is not one of those enumerated items, the assessee is

not entitled to the rebate claimed.

We, accordingly, answer the reference in the negative and in favour of the revenue. The revenue will be entitled to its costs. Counsel''s fee Rs.

250.