086-NLR-NLR-V-56-A.-L.-M.-A.-HAMID-MARIKAR-Appellant-and-COMMISSIONER-OF-INCOME-TAX-Responden.pdf
SWAN- J.—3£arikax v. Commissioner of Income Tax
350
1954Present: Swan J..
A. L. Jit. A. HAMID MARTKAR, Appellant, and COMMISSIONEROP INCOME TAX, RespondentS. O. 369, with Application 69—M. C. Kalutara, 15,739
Excess Profits Duty—Proceeding* foe-recovery—Notice of assessment—Time-limit forservice—Form of notice—Income Tax Ordinance, se. 68 (J), 80 (I).
Notice of assessment of Kxeen Profit* Duty need not.be served on the oasosseebefore the last day fixed for assessment; it may be served subsequently.
A defect in the notice would be cured by section 68 (1) of the Income TaxOrdinance if in substance and effect the notice informs the assesses that he isrequired to pay the amount of the assessed levy.
1’1’EAL, with application in revision, from a judgment of theMagistrate’s Court, Kalutara.
II. V. 1‘erera, Q.G., with H. W. Tatnbiuh and H. L. de Silva, for thoassessco appellant.
G. F. Sethukavalar, for the respondent.
Cur. adv. vult.
December 13, 1954. SWAN J.—
There is no right of appeal in this case, but as papers havo boon filedin revision as well I shall consider the matter. Tho respondent issueda certificate to the Magistrate of Kalutara under Section 80 (1) of theIncome Tax Ordinance as applicable to tho Excess Profits Duty OrdinanceXo. 38 of 1941 for the recovery of a sum of Rs. 8,470 as excess profits dutyfrom tho appellant. He appellant duty appeared on summons andrlesired to show cause and the matter was fixed for inquiry. The appellantsought to prove that he was not a defaulter inasmuch as (i) the notice ofassessment was not duly served on him but on his former partnerA. L. M. A. Rahiman Marikar and (ii) the notice of assessment was servedout of time. The learned Magistrate held against the appellant on boththese points and imposed the amount of the assessed levy as a fine.
At the hearing of this appeal the same two points were raised. 1shall first deal with the submission that tho notice was served out of time.According to the Excess Profits Duty Ordinance as amended and extendedtho assessment had to be made before the '31st December, 1950.Mr. Porora contended that the notice of assessment should have beenserved also before that date. Mr. Sethukavalar who appeared for therespondent maintained that all that the Ordinance required was that thoassessment should in fact have been made before the end of December,1950, but the notice of assessment could be served at any time thereafter.
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SWAN J.—Mariknr v. Commissioner of Income Tux
In this connection ho cited to me the case of Pickford v. The Commissionerof Inland Revenue1 which supports his contention. A passage from“ The Law and Practice of Income Tax ” by Sri Kanga and Palkavalaat page 581 referred to by the learned Magistrate in his judgment makesthe position quite clear. I would therefore hold that the assessmentwas not made out of time.
The next point to consider is whether the appellant had notice ofthe assessment. Tho original notice has been produced by the respon-dent and is marked R5. That it was received by tho appellant therecan be no doubt. It is addressed to both partners. At the top is typed“ For tho information of A.L. Abdul Hamid Marikar ”. If, as Mr. H. V.l’orcra contends, it was an “ information copy ” it is none tho loss a noticeof assessment. But even if thero are any mistakes, defects or omissionsin it, or it is lacking in form it would be cured by Section G8 (1) of theInco'me Tax Ordinance if it is in substance and effect a notice that theasscssee was required to pay the amount of the assessed levy.
B
Tho appeal is rejected and the application in revision refused.
Appeal rejected and revision refused.
' 13 Tax Cases 251.