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Prof Dippak/IDT Basics of Law/ Legal Terminology and Presumptions

LEGAL WORDS
Provided that  A proviso is meant to be an exception to something within the main enactment (or to
(Proviso) qualify something enacted therein) which but for the proviso would be within the
purview of the main enactment. In other words, a proviso is added to a principal
clause primarily with the objective of taking out of the scope of that principal
clause what is included in it and what the legislature desires should be excluded.
 When one finds a proviso to a section, the natural presumption is that, but for the
proviso, the enacting part (main part) of the section would have included the subject-
matter of the proviso.
 A proviso must be interpretated with reference to the preceding parts of the provision
to which it is appended.
 Ordinarily, a proviso is not interpretated as stating a general rule.
Notwithstanding  The clause “notwithstanding anything” is referred as “non-obstante clause”.
anything  A clause beginning with “notwithstanding anything contained in (the section)/ (the
Act)/(any other law)” is appended to a section in the beginning with a view to give
that section, in case of conflict, an overriding effect over the provision of the
Section/Act/Any other law mentioned in the non-obstante clause. It is equivalent of
saying that in spite of provisions of any other Sec/Act/Other Law mentioned in
the non-obstante clause, the enactment following it will have its full operation.
Subject to  It is reverse of the phrase “notwithstanding anything”.
 The expression “subject to” conveys the idea of a provision yielding place to
another provision to which it is made subject to. Thus, where enactment A is made
subject to B, the effect is that enactment B overrides enactment A.

Such as  The words “such as” indicate that what are mentioned thereafter are only illustrative
and not exhaustive. (i.e., other things can also be covered)
Namely  The word “namely” indicates that what are mentioned thereafter is exhaustive and not
illustrative. (i.e., other things cannot be covered)
And  As per rules of grammer, “and” is conjunctive. In other words, it has generally a
commulative sense. Thus, “A and B” means both and A and B must exist.
However, “and” may be interpretated as “or”, if the context so requires
particularly if the ordinarily rule mentioned above would lead to absurdity.
E.g.,: Excise:  Definition of “Excisable goods” [First AND Second Sch to CETA].
Or  As per rules of grammer, “and” is disjunctive. In other words, it has generally an
alternate sense. Thus, “A or B” means it is enough it either of them exists.
However, “or” may be interpretated as “and”, if the context so requires
particularly if the ordinarily rule mentioned above would lead to absurdity.
Other
1. Presumptions:
A fact assumed to be true under the law is called a presumption. In other words, a presumption,
in law, is a supposition held as good/real before it is shown/certainly known to be so.
Presumptions are generally of following 2 types:
i) Rebuttable Presumption: The presumption which once made is allowed to be contradicted by
a party leading evidence to the contrary.
e.g, 1) Man is assumed to be innocent unless contrary is proved.
2) A person who has possession of the goods is presumed to be owner.
3) Where a person has disappeared and has not been heard of 7 Years, the person is presumed to be
dead after expiry of 7 years.
ii) Conclusive Presumption: The presumption which once made is not allowed to be
contradicted by a party.
2. Some presumptions relating to Interpretation of Any Statute
1) Presumption against Retrospective Effect: Every provision is presumed to be
prospective unless it is expressly made to have retrospective effect.


2) Benefit to Assessee: If a provision of a taxing statute can be reasonably interpretated
into two ways, then that interpretation which is favourable to the assessee has to be
accepted.
E.g.,
i) Excise: Normal Transaction Value (NTV) [Rule 2 of CEVR, 2000]