116-NLR-NLR-V-70-D.-J.-RANAWEERA-Appellant-and-COMMISSIONER-OF-INLAND-REVENUE-Respondent.pdf
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Rxnaweera v. Commissioner of Inland Revenue
Present: Tambiab, J., and Alles, J.I>. J. RANAWEERA, Appellant, and COMMISSIONER OFINLAND REVENUE, RespondentS. C. 68 (Inty.)/1963—D. C. Colombo, 255JA1
Income tax—Recovery of tax by seizure and sale of property—Procedure-Capacityof Assistant Commissioner to issue certificate to District Court—“ Commissioner ” — Ministerial function of Court—Income Tax Ordinance(Cap. 242), ss. 2, 6 (b), 11 (i) (a), 13 (2), 84 (5), 85 (1), 86, 87, 89.
Where any income tax is in default, an Assistant Commissioner may, if heis specially authorised by the Commissioner to act on his behalf, issue acertificate to a District Court, in terms of section 84 (3) of the Income Tax•Ordinance, for the recovery of the tax.
* • • •The Supreme Court has no power to grant relief to the assessee at the stage
of proceedings for the recovery of tax.
TAMBIAH, J.—Ranaweera v. Commissioner of Inland Revenue
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.A PPEAL fr<?m an order of the District Court, Colombo.
H. W. Jayewardene, Q.C., with P. Navaratnarajah and D. S.Wijewardene, for the petitioner-appellant.
M. Kanagasunderam, Crown Counsel, for the respondent.
January 28, 1965. Tambiah, J.—
The only point raised in appeal is whether the Assistant Commissionerspecially authorised by the Commissioner for some specific purpose toact on his behalf could issue a certificate under Section 81 (3) of theIncome Tax Ordinance. Section 81 (3) enacts “ where any tax is indefault, and the Commissioner is of opinion that recovery by the meansprovided in subsection (2) i3 impracticable or inexpedient, he may issuea certificate to a District Court having jurisdiction in any district wherethe defaulter resides or in which any property movable or immovable?owned by the defaulter is situate, containing particulars of such tax.and the name or names of the person or persons by whom the tax ispayable. On receipt of such certificate the court is empowered to issuea writ of execution to the Fiscal authorising and requiring the Fiscal toseize and sell all and any of the property movable and immovable of thedefaulter or such part of it as he may think necessary for the recoveryof the tax Commissioner is defined as follows. “ Commissionerincludes Commissioner of Income Tax appointed under this Ordinance,and the Deputy Commissioner or an Assistant Commissioner speciallyauthorised by the Commissioner either generally or for some specificpurpose to act on behalf of the Commissioner
Mr. Jayewardene contends that under section 84 (3) it is only theCommissioner who could express his opinion and that it is notcompetent for an Assistant Commissioner specially authorised by theCommissioner to act on his behalf. There are several sections ofthe Income Tax Ordinance where the Commissioner is authorised to actin a particular way when he forms a certain opinion—vide Sections81 (3), 85 (1), 86, 87 and 89. There are also other provisions where theCommissioner has to satisfy himself on certain facts before he could act—vide Sections 13 (2), 6 (b) and 11(1) (a), If Mr. Jayewardene’s contentionis correct then under all these sections it is only the Commissioner whocould act. We do not see any reason why we should give a restrictedmeaning to the term ‘ Commissioner ’ under Section 84 (3) when theLegislature has provided a clear cut definition for the term‘ Commissioner
Mr. Jayewardene also raised the question that the AssistantCdhamissioned wte never authorised to sign a certificate under Chapter 13of the Income Tax Ordinance. This point was not raised before the Court
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Emjay Insurance Co. Ltd. v. William
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of first instance. If it had been raised the Commissioner might have ledevidence on this point. It is clear principle of law that a mixed questionof fact and law cannot be raised in appeal—vide Seetha v. Weerakoon 1.
In our view it is not necessary for the Commissioner to express anopinion that the recovery by means provided for in Section 79 (2) isimpracticable or inexpedient (vide the dictum of Maartensz, J. inconstruing Section 79 (3), the present corresponding Section 85 of theIncome Tax Ordinance, Commissioner of Income Tax v. de Vos2).
Mr. Jayewardene also contended that this Court has power to giverelief to the assessee who has been called upon to pay tax amounting tonearly 25 lakhs. Mr. Jayewardene submitted that the Crown purportedto acquire a valuable land in Matara town and subsequently abandonedthat project. He said that the Crown is making it difficult for theassessee to pay the tax from the proceeds which he expected from theintended sale of this property. No doubt this is a hardship which wehope the Commissioner will take into account in giving the assessee^ime to pay. We are of the view that we have no power to exercise#our jurisdiction to stay the hands of the Commissioner. Under theprovisions of the Estate Duty Ordinance I had occasion to hold thatonce a certificate is issued, the Court in issuing a writ does not actjudicially but does a ministerial act, vide Ranaweera v. Commissionerof Inland Revenue. 3
For these reasons I dismiss the appeal. Under the special circumstancesof this case there will be no costs of appeal.
Alles, J.—I agree.
Appeal dismissed.