Commr-Gen. of Income Tax v. Joshi Misc. Civ. App. 16-D-71; 8/11/71; Biron J.

Commr-Gen. of Income Tax v. Joshi Misc. Civ. App. 16-D-71; 8/11/71; Biron J.

The appeal was brought by the Commissioner-General of Income Tax from the decision of the Local Committee allowing an appeal by the respondent tax payer from the assessment f his income tax for the year of income 1968. The issue was whether the respondent was entitled to children allowances in respect of his brother and three sisters who were residing with their parents in India and were receiving full-time education there. The respondent established that because of the old age of their parents and their inability to provide for the education and maintenance of his sisters and brothers, full responsibility of care and maintenance of them fell upon him. He led evidence to the effect that according to the custom of his community the custody of and responsibility for the maintenance of his brother and sisters devolved on him because of the incapacity of their parents.

Held: (1) “The relevant provision providing for child allowance in the assessment of income tax is section 52 of the East African Income Tax (Management) Act, 1958, the relevant parts of which read:- ’52. (1) An individual who proves that in any year of income he maintained:- (a) any child of his who was under the age of 19years on the 31^st December in such year of income and who was either in his custody or in any other custody by virtue of an order of a competent court; or (b) any other child who was under such age who was in his custody by virtue of any custom of the community to which he belongs; or (c) any child of a class mentioned in paragraphs (a) or (b) of this subsection and was not under the age of 19 years on such date and who was:- (i) receiving full-time education; or (ii) serving full-time under articles or indentures with a view to qualifying in a trade or profession; or (iii) totally incapacitated either mentally or physically during the whole of such year of income

From maintaining himself and was resident in the Territories or in a recognised institution abroad, shall, subject to section 49, in respect of each such child not exceeding four in number, where the individual is resident in Kenya or Tanzania, or six in number where the individual is resident in Uganda, be entitled to a personal allowance, in this act referred to as the child allowance:’ (2) “The whole crux of this case is the interpretation and construction of the word ‘custody’ which appears in the section. This word ‘custody’ was introduced in he Management Act of 1965, and, so I am informed by Mr. Kaunda (it should be noted that the taxpayer appeared in person), this is the first time that the section has come up for interpretation and construction. There is therefore no precedent, and although the word ‘custody’ is also used in the corresponding English Income Tax Act, I am not aware of any case wherein the word ha s been defined, and for reasons which are self evident there is hardly likely to be an English case which would correspond to this instant one. The Court therefore has to decide the issue, which, as noted, is the construction of the word ‘custody’ in the section, on the application of first principles.” (3) “The first and foremost cardinal principle of construction of words whether in statutes or legal documents is that the words and expressions used should be given their plain and ordinary meaning. The word ‘custody’ covers such a wife range of meanings that it would be idle to set out the definition of ‘custody’ in any dictionary, particularly as this case is concerned with the meaning of the word in relation to children. At firs blush ‘custody’ when used in relation to children would appear to be equated to guardianship. However, there is a distinction between the two, as remarked on in “Words and Phrases Legally Defined”, Second Edition, at page 392, the relevant passage reading:- “Australia – “Custody” is not necessarily co-extensive with” guardianship”. Both words appear in the Guardianship of Infants Act and may have different significations ………. It may be “guardianship” and “custody”, when used in contrast, is several aspects of the same relationship. The former can very well be employed in a special context to denote duties concerning the child ab extra; that is, a warding off; the defence, protection and guarding of the child, or his property, from danger, harm or loss that may occurred from without. Commonly, guardianship is used in a wider sense (Neale v. Colouhoun [1944] S. A. S. R. 119, at pp. 129 – 130). Custody essentially concerns control and the preservation and care of the child’s person, physically, mentally and morally; responsibility for a child in regard to his needs, food clothing instruction, and the like.’ Wedd v. Wedd [1948] S. A. S. R. 104, per Mayo J., at pp. 106, 107.” It is also not irrelevant to remark that, particularly as of late, a distinction has been made between ‘custody’ and ‘care and control’, because one parent may be granted custody of a child of the marriage whilst the other is granted the care and control.” (4) “It cannot be gainsaid that where a word has many meanings which vary according to the context in which it is used it would be elementary to say that the word must be construed in the particular context in which it is

used. As already noted, we have limited the meaning or definition of the word ‘custody’ to when used in connection with children. The section which we are interpreting has gone much further and qualified the word ‘custody’ be stating at paragraph (b);_ “any other child who was under such age who was in his custody by virtue of any custom of the community to which he belongs.’ Although in this case were are concerned with paragraph (c), as expressly stated in that paragraph it is interconnected with paragraph (b), and the same definition of paragraph (b) will apply to children over the age of nineteen years if they are receiving fulltime education’”. (5) “Although I fully agree with Mr. Kaunda that the taxpayer cannot be said to have physical custody of the children in respect of whom he is claiming allowances on his assessment, they are all, according to the custom of the community to which they belong, in the custody of the taxpayer. He is therefore  entitled to the child allowances in respect of them as I think sufficiently demonstrated, there is certainly no authority, nor is there any reason apparent, why this Court should disagree with the decision of the Local Committee from which this appeal has been brought.” (6) Appeal dismissed.