064-NLR-NLR-V-56-B.-H.-WILLIAM-Appellant-and-COMMISSIONERR-OF-INCOME-TAX-Respondent.pdf
BANS ONI J.—William v. Commissioner of Income Tax
26?
1954Present : Sansoni J.H. WILLIAM, Appellant, and COMMISSIONER OEINCOME TAX, Respondent
.S'. G. 343 with Application 468—M. C. Colombo, 249
Income tax—Proceedings for recovery before Magistrate—Power of Magistrate to
grant an adjournment—Certificate of Commissioner—Necessary particulars—
Income Tax Ordinance {Cap. 188), ss. 76 (5), 80 (1) and (2).
Acting under section 80 (1) of the Income Tax Ordinance the Commissionerof Income Tax issued a certificate to a Magistrate certifying .that a person hadmade default in payment of income tax. The total tax in default and thesums added for non-payment under section 76 (5) were mentioned as particularsat the foot of the certificate. Nrhen the assessee appeared before the Magistratehis application for an adjournment was l-ofused on the ground that an appealagainst the assessment was pending.
Held, that under section 80 (2) of the Income Tax Ordinance the power of aMagistrate to grant an adjournment was restricted and could not be exercisedin a cose where an appeal against the assessment had been filed.
Held further, that the particulars given in the certificate of the Commissionerwere sufficient. Even if they were not sufficient, the Magistrate lmd jurisdictionin his discretion to order further particulars to be furnished.
_^^_PPEAL, with application in revision, from an order of tho Magistrate’sCourt, Colombo.
H. V. Perera, Q.C., with W. D. Gunasekera and W- P. N. de Silva, forthe appellant-petitioner.
Vincent T ham other am, Crown Counsel, for tho Attorney-Genoral.
Cur. adv. vult.
November 2, 1954. Sansoni J.—
The Commissioner of Income Tax issued a certificate to the Magistrate,Colombo, certifying that the present petitioner has made default in pay-ment of Rs. 536,499’98 cts. being income tax due from him. Thofollowing particulars appear at the foot of the certificate :
Rs. c.
Total Tax in default. .447,084 98
Sums added for non-payment under
section 76 (5), Cap. 188. .89,415 0
536,499 98
The petitioner was summoned to appear in Court on 10.3.54. Hoappoarod and the Magistrate directed tho case to bo called on 25.3.54.having made the entry “ Appeal pending ”. On 25.3.54 the Magistrate
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SANSONI J.—William v. Commissioner of Income Tax
made the order : “ As respondeat has appealed he is not entitled to ad-journment under section 80 (2). So the respondent should pay thisamount. Payment on 31.3.64. The petition of appeal against thisorder was filed on 26.3.64, but as there was no right of appeal papers werelater filed to have this order revised. Two points were urged against theorder : firstly, that the Magistrate was wrong in supposing that he had nodiscretion to adjourn the matter : secondly, that the certificate did notcomply with the provisions of section 80 (1), Cap. 188, because there wereno particulars of the tax in default. In regard to the first submission, thegeneral principle is well established, that an adjournment or rofusal of anadjournment is a matter which prima facie is entirely within the discretionof a judge. A court has an inherent power to direct that any matter whichcomes before it should stand over for a period if the Court thinks thatthat is the proper way to deal with the matter. Romer, L.J., referred tothis principle in the case of In re Yates Settlement Trust1. But having re-gard to the terms of section 80 (2) of the Income Tax Ordinance which interms deals with the question of adjourning a matter such as this, Iam doubtful whethor the discretion to adjourn, which is ordinarily vestedin a Magistrate, is not limited in such a case. Section 80 (2)empowers the Magistrate to adjourn such a matter “ for not more thanthirty days to enable such person to submit to the Commissioner hisobjection to the tax ”, but this is a power conferred only in a case whereno appeal against the assessment has been filed. This provision seems to meby implication to divest the Magistrate of a discretion to adjourn the matterin other cases or for any longer period. The matter is of secondary im-portance in the present proceedings because tbe petitioner has, by filing anappeal, obtained very much mere time than any judge would have grantedhim oven if he had a discretion in the matter.
In rogard to the second submission, the relevant portion of section80 (1) reads :—
“ Whero the Commissioner is of opinion in any caso that rocovoryof tax in default by seizure and sale is impracticable or inoxpodiont,or whoro the full amount of the tax has not boon recovered by seizuroand salo, ho may issuo a certificate containing particulars of such taxand tho name and last known place of business or rosidonco of thodefaulter to a Magistrate having jurisdiction in the division in whichsuch place is situate.”
Tho provisions of section 76 (5) are also relevant. Thoy road :—
“ Where any tax is in defaidt, the Commissioner may in his dis-cretion order that a sum or sums not exceeding twenty por centumin all of the amount in default shall be added to the tax and rccovorodtherewith.”'
It was submitted that the particulars required to bo specified in thocertificate wore not merely particulars of the actual tax and tho penaltyseparate^, but particulars about the actual tax itself, such as, tho yoarfor which it was duo, and where it was due in respect of moro tlian one1 (1954) 1 W. L. R. 594.
Arumugam v. Vijayaratnam
259
year, then the particular amount due for each year. Now it seems tome that when the Commissioner acting under section 76 (5) adds a Bumor sums, the entire amount may he recovered in one proceeding undersection 80 (1), and the amount to be so recovered is the “ tax in defaultThe sum so added is thus also recoverable as “ tax in default ”, theactual tax apart from this penalty not forming the only permissiblesubject of the certificate. It follows then that “ particulars of suchtax ” could be particulars specifying separately the aotual tax and thepenalty. In this view of the matter it could be said that the certificateunder consideration does contain particulars.
But I also take the view that the question of the sufficiency or other-wise of the particulars contained in a certificate is not a fundamentalmatter affecting the jurisdiction of the Magistrate. I regard it ratheras a matter which the defaulter should raise when he is summoned andasked to show cause. If he is taken by surprise through want ofsufficient particulars, he should say so at that stage, and I have no doubtthat in such a case the Magistrate has jurisdiction in his discretion toorder further particulars to be furnished. Such cases will probablybe rare, for there would have been earlier proceedings, to which thedefaulter would have been a party, and it is only at the final stage that acertificate under section 80 (1) is issued. Since the petitioner made nocomplaint regarding the adequacy of the particulars in the certificateunder consideration he must be taken to have been well satisfied withthem.
1 tee no reason to interfere with the order of the Magistrate. Thepetitioner has already obtained far too much time and the Magistratewill take the necessary action to recover the amount in default.
Appeal and Application dismissed.