Fernando v. Commissioner of Income Tax
1959Present : Basnayake, CJ., and Pulle, J.R. M. FERNANDO, Appellant, and COMMISSIONER OF INCOMETAX, Respondent8. C. 2—Income Tax Case Stated No. BRA. 247Income tax—Caoe stated—Death of aeaessee-appellant—Executor may be permittedto be heard by Court—Income Tax Ordinance, ss. 27, 74 (5) and (6).
Where, pending the hearing of a case stated under section 74 of the IncomeTax Ordinance, the assesaee-appellant dies, the executor of his last will may beheard by the Coart before the question arising on the cose stated is determined.
BASiSTAYAHE), C.J.—Famando v. Gomnviteioner of inoomo Tax
Case stated under section 74 of the Income Tax Ordinance,
E. W. Jayetoardene, Q.C., with L. P. Fernando, for Assessee-Appellant.
V. Tennakoon, Senior Crown Counsel, with L. B. T. Premaratne, CrownCounsel, for Assessor-Respondent.
Cur. adv. vult.
September 4, 1959. Basnayake, C.J.—
This is a case stated for the opinion of this Court under section 74 of theIncome Tax Ordinance. After the case was stated and transmitted tothis Court the party requiring it to be stated (hereinafter referred to asthe appellant) died.The present application is that the Executor of the
last will of the appellant “ be substituted in his place or added asAppellant. ”
Once a case stated under section 74 has been transmitted to this Courtthe death of the appellant does not in any way affect the statutory dutyof this Court to hear and determine any question of law arising on thestated case. In a case stated there are no parties in the sense in whichthat expression is used in a civil action but as section 74 (5) requiresthat this Court shall hear and determine the question of law arising on thestated case and as sub-section (6) empowers the Court to award costsit is necessary that the appellant should be heard and it is the practiceto treat the Commissioner of Income Tax as the opposing party and hearcounsel on his behalf. In the instant case it would appear that thereis an exeoutor of the deceased appellant’s will . Section 27 of the IncomeTax Ordinance provides that the executor of a deceased person shall bechargeable with tax for all periods prior to the date of such person’s deathwith which the said person would be chargeable if he were alive, and shallbe liable to do all such acts, matters and things as the deceased person ifhe were alive would be liable to do under that Ordinance. By virtue ofthat section the executor may ask that he he heard in a stated case. Wewould therefore treat the present application as an application by theexecutor to be heard before we determine the question of law arisingon the stated case transmitted by the deceased appellant and makeorder allowing him to appear by counsel at the hearing of the stated caseso that he may be heard in support of the appellant’s case with the likeconsequence as if the appellant had been alive and been heard.
Puxjle, J.—I agree.
Executor of deceased assesoee-appeUant permitted to he heard by Court.
R. M FERNANDO, Appellant, and COMMISSIONER OF INCOME TAX, Respondent