Ghiillain ». Commissioner of Income Tax
Present: Nagalingam S.P.J.
G. F. C. GUILLAIN, Petitioner, and COMMISSIONER OF INCOME
S. G. 294—Application for revision in M. G. Colombo, 37,624
Income tax—Proceedings for recovery before Magistrate—Stage at which further •time will not be granted -7—Income Tax Ordinance (Cap. 188), s. 80.
In proceedings under section 80 of the Income Tax Ordinance for the recoveryof unpaid tax, the assesses cannot ash for further time after the Commissioner-issues his certificate under section 80 (3) confirming (or reducing) his assessment.At that stage, there is no other question outstanding which the assesses canurge as a ground for staying further proceedings for the recovery of the taxdue from him.
-/^.PPEICATION to revise an order of the Magistrate’s Court, Colombo.-
A. B. Perera, for the petitioner.
G. F. SetuTcavaler, Crown Counsel, for the respondent.
Cur. adv. vult.
NAGAX.INGAM S.P.J.—O-uillain v. Commissioner of Income d ax
October 5, 1953. Nagaungam S.P.J.—
This is an application to revise an order made by the^leamed ChiefMagistrate of Colombo sentencing the petitioner to a term of six monthsrigorous imprisonment on his declining to pay a sum of Rs. 4,844 claimedby the Commissioner of Income Tax as excess profits duty due from him.Learned Counsel for the petitioner complains that the Magistrate shouldhave fixed the matter for inquiry on the date on which he made theorder imposing the sentence and that by the learned Magistrate declining-bo accede to the request on the part of the petitioner to fix the matterfor inquiry the petitioner has been denied justice.
For a full appreciation of the argument advanced, it will be necessaryto go back to the date on which the petitioner appeared in answer to thesummons served on him calling upon him to show cause why furtherproceedings should not be taken against him for the recovery of the■ excess profits duty assessed to be due from him. On the date thepetitioner appeared he was represented by counsel. On that date thelearned Magistrate made a minute, “Time granted till 29.4.53 under-section 80(2). ”
Learned counsel for the petitioner states that in Income Tax casesminutes such as the one made by the learned Magistrate are made asmatters of routine without any application therefor being made by the-assessee. I am not prepared to act on such a statement without propermaterial being placed before the Court by way of an affidavit of facts.On the contrary I incline to the view that the order was a considered.order made by the learned Magistrate upon the application of thepetitioner’s counsel.
It is obvious that under the proviso to section 80(1) of the Income'Tax Ordinance the Magistrate has no jurisdiction to consider, examineor decide the correctness of any statement in the certificate of theCommissioner, but under section 80(2) the Magistrate is empowered to-adj oum the matter where the assessee has not appealed within the propertime against the assessment made upon him. It has^ot been suggestedby Mr. Perera who appeared for the petitioner that in point of fact thepetitioner had appealed against the assessment and that the provisions-of sub-section (2) did not apply and that the Magistrate’s order thereforewas one which could be stated to bear intrinsic testimony of the routine-nature of the order. But on the contrary the case has been argued onthe footing that the petitioner had in fact not appealed against theassessment made on him.
The question arises, how did the learned Magistrate become aware-of the fact that there had been no appeal against the assessment, forthat is the only foundation upon which the learned, Magistrate couldhave made an order under section 80(2). In fact it does not appearthat the petitioner could have shown cause against the summons other-than to make an application under section 80(2) in the circumstances-of this case. I would hold that it was on an application made to thelearned Magistrate that time was granted for representations to be made-.to the Commissioner. On the date fixed, after1 the period allowed to
JNAGALXNGAM S.P.J.—OuiUain v. Commissioner of Income Tax
-submit to tne Commissioner the objections to the tax, the petitioner’scounsel mo ^ed that the matter be fixed for inquiry. But apparentlythe petitioner had made representations to the Commissioner, for theCommissioner had in the meantime issued his certificate under section80(3), confirming his assessment. At that stage, therefore, there was no-other question outstanding which the petitioner could have urged as aground for staying further proceedings for the recovery of the excessprofits duty alleged to be due from him.
-Mr. ferera was unable to say even at the argument of the petitionwhat the particular matter was that he desired to be fixed for inquiry.He piade an attempt to show that the petitioner being a French subjectgoverned by French Law was not liable to pay duty from profits earnedby his wife, who was the person who ran the business of an hotel, theprofits of which were the subject of the duty. But that was a subjectof controversy that could and should have been taken in the earlier stagesof the proceedings culminating in the assessment, and the matter couldhave been taken up by way of appeal in succession to the Commissionerof Income Tax, the Board of Review, and finally to this Court; but thepetitioner £oes jj.o£ appear to have pursued the remedy granted to himby law. On the other hand I can well understand his reticence for notso doing. Whatever may be the rights between husband and wife underthe law of domicile of a person, the fiscal laws of the country of theirresidence are in no way affected thereby. In fact in this country itselfthere are sections of people where the property rights of husband andwife are distinct and separate ; nevertheless the husband by virtue of theprovisions expressly enacted in that behalf becomes liable to payduty on the income or excess profits earned by the wife.
I do not therefore think that there is any substance in the contentionthat any prejudice has been caused to the petitioner as a result of theapplication to fix the matter for inquiry being refused by the learnedMagistrate, for in fact there was at that time no matter to be fixed forinquiry. When I make this observation I do not lose sight of the factthat it certainly 'is open to a party summoned before the Magistrate toshow either that he is not a defaulter in the sense that he has in ppintof fact paid and discharged any duty imposed on him or that he is not-a defaulter in the sense that he was not the person who was assessed,but that ne was a third party—see de Silva v. Commissioner of IncomeTaxx. Those matters relate to questions which cannot fall underthe category of questions which a Magistrate is forbidden to consideror examine under section 80 (1) ; those are matters de hors the statementcontained in the certificate.
I therefore see no reason to interfere with the order of the learnedMagistrate, which is affirmed. The application is refused.
1 (1951) 53 N. L. R. 280.
G. F. C. GUILLAIN, Petitioner, and COMMISSIONER OF INCOME TAX, Respondent
Ghiillain ». Commissioner of Income Tax