Fractionem Diei

When it comes to determine the applicability of any provision
of law with reference to an event occurring on a day, the maxim ‘Fractionem
Diei non recipit lex’ applies according to which the law does not recognise
and take notice of fraction of a day except in cases of necessity and for the
purpose of justice. [Clarke v. Bradlaugh, (1881) 8 QBD 63].

2. When, therefore, a thing is to be done on a certain day,
all the day is allowed to do that thing i.e. from the commencement to the
end of the day. For instance, an Act of Parliament becomes law as soon as the
day on which it is passed commences, unless the commencement be expressly
postponed [Tomlinson v. Bulock, (1879) 4 QBD 230]. Under Indian law also
a central enactment comes into force on the date it receives Presidential
assent. Section 5 of General Clauses Act 1897 provides that any Central Act, not
expressed to come into operation on any particular date, shall come into
operation on the date it receives assent of the President.

3. Every minor comes of age on the beginning of the
anniversary after the years prescribed for majority. S. 3 of the Indian Majority
Act 1872, lays down that every person domiciled in India shall attain the age of
majority on his completing the age of eighteen years and not before. It is
clarified that in computing the age of any person, the day on which he was born
is to be included as a whole day and he shall be deemed to have attained
majority at the beginning of the eighteenth anniversary of that day. His
minority ceases on the day preceding the eighteenth anniversary of his birthday
and he may act as of full age from the first moment of his anniversary date. The
principle applies equally in determining attainment of the age of 65 years
anytime during the previous year for availing income tax benefits of higher
exemption limit prescribed for senior citizens under the Finance Acts.

4. Certain provisions prescribe qualifying period for
attaining certain legal status or for eligibility to commence certain
proceedings. Such period is to be reckoned from the day of certain event upto
the day of some other event. In such a case, while the whole day of both the
events is to be recognised as per the maxim, the issue remains whether both the
days are to be reckoned in working out the prescribed period or only one of them
and if so, which of the two days. The issue in the context of S. 6 of the
Income-tax Act prescribing residence of 182 days or more in India for acquiring
the status of ‘resident’, was examined by the A.A.R. in P. No. 7 of 1995, in
re (1997) 223 ITR 462 (AAR). It was held that in determining the period of
182 days, even a part of the day will be construed as full day so that both the
days i.e. the date of arrival in as well as the date of departure from
India is to be reckoned The principle should equally apply in reckoning the time
period prescribed under various articles of Double Tax Avoidance Agreements such
as article relating to service PE, independent personal services, dependent
personal services and others.

5. The import of the words ‘from’ and ‘to’ in any legislation
for computing the period prescribed under the statute is laid down in S. 9 of
the General Clauses Act 1897 as under :

6. The principle contained in the above provision of General
Clauses Act governs a large number of charging provisions under the income tax
law in India. With the requirement of recognising part of a day as the whole
day, these provisions require exclusion of the day from which the period begins
and inclusion of the day when the period ends. S.217, for instance, requires
charging of interest at 15% per annum from 1st day of April next following the
financial year in which the advance tax was payable upto the date of regular
assessment. The period for charge of interest should exclude 1st day of April
but include the date of regular assessment. Similarly the amount specified in
the notice of demand u/s. 156 needs to be paid within 30 days of the service of
notice of demand, which means exclusion of the day of service in computing the
period of 30 days.

7. Interest provisions under the Income-tax Act, however, are
worded in a manner so as to exclude the operation of the general provision
contained in the General Clauses Act or make them inconsequential. S. 220, S.
234A, S. 234B and S. 244 relating to charge of interest on taxes due and on
refunds specify the interest period as month or part of month comprised in the
period commencing from a specified date. These specified days are not the days
of event but the days following the day on which some event took place or
following the end of the month suggesting inclusion of the first day in the
period to be computed for charge of interest. S. 220 for instance prescribes
liability to pay simple interest for the period comprised in the period
commencing from the day immediately following the expiry of 30 days of the
service of notice. Further, with the treatment of part of a month as full month
and rate of interest expressed ‘per month’, the actual number of days have lost
significance.