036-NLR-NLR-V-57-J.-A.-BAHARAN-Petitioner-and-D.-G.-OBEYSEKERA-Assistant-Commissioner-of-Incom.pdf
1955Present: K. D. de Silva, J.
-J. A. BAHARAN, Petitioner, atid D. G. OBEYSEIvERA (AssistantCommissioner of Income Tax), Respondent
S. C. 690 of 195‘1—Application for a Mandate in the nature of a■Writ of Mandamus
.Income Tax Ordinance (Cap. 1SS)—Appeal against assessment —Kotice of objection—Conditions which such notice must satisfy—Failure to furnish return of income—acquirements necessary then—Sections 04 (3), 60 (J) (2) (3), SO (1) (3).
AVhero an asscssco fails to state precisely his grounds of objection against thoassessment and merely lodges “ an emphatic protest ”, such protest is not anotice of objection within tho moaning of section GO (1) of the Incomo TaxOrdinance. Nor is it within the power of the Commissioner to waive thorequirements which aro set out in section GO (1) in regard to notico of objection.
Further, tinder tho second proviso to section GO (1) of tho Income TaxOrdinance, if tho assessment appealed against was made in tho absence of areturn of income, tho return of income must be tendored within tho poriodallowed for filing tho notice of objection. Failure to tender ilio return of incomowould render tho notico of objection invalid.
Application for a writ of mandamus.
S. Ambalavanar, with E. B. Yannitamby, for the petitioner.
J.W. Subasinghe, Crown Counsel, for tho respondent.
Cur. ado. vult.
September 22, 1955. de Silva, J.—
Tho petitioner complains, firstlj', that the respondent who is theAssistant Commissioner of Incomo Tax, Unit 3, wrongly refused to admithis appeals and make his order in terms of Section 69 (2) of tho Incomo
Tax Ordinance (Cap. 1SS) and secondly, the respondent refused toconsider his objections before issuing a Certificate tinder Section SO (3).Ho tjiereforo seeks to obtain from this Court a Mandate in the nature ofa Writ of Mandamus directing tjio respondent (I) to admit tjio appealsand mako his order in terms of Section G9 (3) or (2) to consider thoobjections, mako his decision thereon, and issue a Certificate to theMagistrate’s Court, Colombo South, in terms of Section SO (3). Tho-respondent opposes this'application.
Although the petitioner originally made this application in resjtectof the years of assessment 194S/1949, 1949/1950, 1950/1951, 1951/1952and 1952/1953 his Counsel, at tho hearing, restricted the matter to thelast mentioned 3 years of assessment.-
The petitioner did not furnish returns of income in respect of these3 years to the Commissioner of Income Tax. Accordingly, the Assessorin terms of Section 64 (3) estimated the petitioner’s assessable income and.assessed him accordingly, and notices of assessment dated I7tJi August,.1953, were sent by registered post to tho petitioner to his address atHo. 22, Gorakapola, Panadura. Those notices of assessment called upontho petitioner to pay Rs. 1,5S5, Rs. 1,300 and 11s. 2,475 respectively.Section 09 (1) provides that any person aggrieved by tho amount of’assessment made under tin's Ordinance is entitled to appeal to the Com-missioner against tho assessment by giving notice of objection in writingwithin 21 days of tho date of notice of the assessment. Section 03 (3)enacts that any notico sent by post shall be deemed to havo been served,on tho day succeeding the day on which it would have been received,in the ordinary course by jjost. So that these notices should be deemed,to have been served on the petitioner on the 19th August, 1955. Thepetitioner did not appeal to tho Commissioner within 21 days from thatdate. Ho however addressed tho letter Rl dated 31st October, 1953,to the Commissioner stating that he received the notices of assessmentonly two days earlier. He also in that letter objected to the assessmentsin the following terms :—.
ct I hereby lodge an emphatic protest at your assessment of myincomo for theso years. Details of these particulars will be forwarded.to you shortly. ”
That the petitioner received the notices only on tho 29th October, 1953,.is not denied by the Commissioner. TJierofore the jjeriocl of 21 days-contemplated by Section 69 (1) has to be calculated from 39th October,
The petitioner did not take any further steps within 21 daysfrom 30th October, 1953, although in Rl ho had undertaken to furnishthe particulars shortly. The Commissioner thereafter on 3rd Septoinbor,.
issued in terms of Section SO (1) tho Certificate R2 to tho Magistrate,Colombo South, certifying that a sum of Rs. S,115 was due as incomotax. The Magistrate on receipt of this Certificate issued summons on thorespondent who appeared in Court on 10th October, 1954, and obtained anadjournment till 13.11 .’54, under Soction SO (2) to enablo him to submitobjections to tho Commissioner. Hothing appears, to havo been done-
■during this period of adjournment. When the petitioner appeared inCourt on 13. H .’54. tho Magistrate made tho following order :—•
. “ Amount confirmed. I call upon him to pay. Time till 4/12. ”On 4.12.’54 the petitioner’s Counsel submitted to Court that his client-was not liable to pay the full amount and moved for another adjournment.The learned Magistrate refused this application and sentenced thopetitioner to 3 months’ simple imprisonment-. On the same day thepetitioner filed an appeal against that order and also paid an instalmentof Rs. 100 out of the amount due. Certain other payments were alsomade on subsequent dates. The petitioner filed tho present applicationfor a Writ of Mandamus on 17.12. ’54.
It is contended on behalf of the petitioner that the letter R1 is a noticeof objection contemplated by Section 09 fl) and that by that notice thepetitioner preferred an appeal to the Commissioner. It is also submittedon his behalf that on R1 being filed, the- Commissioner should haveprocecdcd under Section 09 (2) and, if no agreement was reached betweenparties, lie should have in terms of Section 09 (3) fixed a time and placefor tho hearing of the appeal. The learned Crown Counsel argued thatR-l cannot be regarded as a valid notice of objection contemplated bySection G9 (1) and that even if it was so regarded it ecascd to be validbecause the relevant returns of income were not filed by the petitionerwithin 21 days from 30.10.’53. As this argument involves the interpre-tation of Sub-Sections 1 and 2 of Section G9 I will quote those twoSub-Sections in full :—
-cannot be assailed. By R1 the petitioner merely lodged “an emphaticprotest That surely is not a ground of objection. Tho Counsel forthe petitioner however contends that tho respondent is not entitled totafco this objection because he did not raise it earlier. According to him,tho onlv ground urged by the respondent against the validity of Rl-was that the returns of income were not filed within 21 days as contemp-lated by proviso 2 Section G9 (1). It is true that in the affidavit filedby the respondent he did not specifically take up tho position thatR1 was an invalid notice for want of the necessary particulars. However,oven if the respondent treated Rl as a valid notice it is clear that he wasnot entitled in law to treat it as such. Section G9 (1) not only requiresthat the grounds of objection should bo set out precisely in tho noticebut it proceeds to state further.
" And the notice shall not bo valid unless it contains such groundsand is mado u iihin the period above-mentioned. ”-
The Commissioner cannot confer validity on a notice which is intrinsicallyinvalid. Jt is not within his jrower to waive tho requirements which.-s.ro unequivocally set out in Section 69 (1) in regard to this notice. There-fore the Commissioner was entitled to ignore Rl. On this ground alone1 l.o petitioner’s application must fail because the petitioner also failedto appear before tho Commissioner as required by tho latter or to submithis objections to him in terms of Section SO (2). If Rl cannot be regardeda.-; a valid appeal tho petitioner was entitled to claim relief under SectionSO (2). This he has failed to do.
Even if it is assumed that Rl is a valid notico of objection—whichI a-m not prepared to concede—the petitioner is still confronted witlianother difficulty in that he failed to furnish tho returns of incomewithin ?, period of 21 days calculated from 30.10.’£>3. Indeed, ho fur-nished these returns only on 19th November, 1954. The Counsel fortho petitioner however contends that Section 69 (1) docs not requirethat the returns of income should be filed within 21 days. Accordingto him it is sufficient if the notice of objection alone is filed within thatperiod. His argument is that if the notice of objection is filed within21 days, it remains in a state of suspense, as if it were, ready to he investedwith validity once the return of income is filed. There is no time limitwithin which the return of income is to bo filed, according to him. H'calso submits that although the 1st proviso of Section 69 (1) empowersthe Commissioner to extend the period of 21 days for filing tho noticoof objection there is no similar provision in regard to the filing of the. rc-tum of income. I am unable to share his view that tho appellant 13entitled to file the return of income after the expiry of tho period w ithinwhich tho notice of .objection has to be filed. Section 69 (I), inter alia,enacts that the notice shall not be valid unless it is made within 21 days.
'The 1st proviso, as I observed earlier, empowers tho Commissioner, incertain instances, to extend the period of 21 days. It is only a noticoof objection which is filed within the 21 days or within the extended periodthat is valid. But according to the 2nd proviso to Section 69 f 1) evena notice of objection filed within the prescribed time becomes invalid■' unless and until ” tho return of income is duly made. Tho word
“ until ” appearing in this proviso shows that tho return of income ncedlnot necessarily be filed with tlio notice of objection. The word “ unless ”occurring in the sam'e proviso, however, makes it clear that the return-of income should bo filed within the period allowed to tender tho noticeof objection. A notice of objection which is otherwise valid loses itsvalidity unless there is a return of income to support it. If no extensionof timo is granted for filing tho statement of objection the last day on-which it can bo filed is tho 21st day from tho relevant point of time..If on tho 21st day it is found that the notice of objection has been filed,within tho prescribed period but no return of income has been tendered,then tho notice of objection is clearly invalid.
A notice of objection to be valid must satisfj' the following require-ments :—
It must bo in writing and addressed to the Commissioner.
It must bo filed within the prescribed time.
It must set out the grounds of objection precisely.
If tho assessment appealed against was made in the absence of it-
return of income the return of income must be tendered within,the period allowed for filing the notice of objection.
It is only a notice of objection which satisfies the above requirements-whieh would constitute a valid appeal against the assessment.
Accordingly, even if 111 is a proper notice of objection, it is invalidfor the reason that the petitioner had failed to tender his return of incomewithin 21 clays from 30.10.’53. Therefore the respondent was justified,in refusing to make an order under Section G9 (2).
For these reasons I dismiss the- application with costs.
A ppl icat ion d ism issed-
(1)Any person aggrieved by the amount of an assessment made-under this Ordinance may within twenty-one days from the date ofthe notice of sue1 2! assessment appeal to the- Commissioner by noticeof objection in writing to review and revise such assessment-. Anyperson so appealing (hereinafter referred to as the appellant) shallstate precisely in his notice the grounds of his objection and the noticeshall not be valid unless it contains such grounds and is made withinrJie period above mentioned :
Provided that tho Commissioner, upon being satisfied that cuingto the absence from Ceylon, sickness, or other reasonable cause theappellant was prevented from giving notice of objection within suchperiod, shall grant an extension thereof :
Provided further that-, where the assessment appealed against hasbeen made in the absence of a return of income by tho appellant, nonotice of objection shall be valid unless and until such return has been-duly made.•
(2)On receipt of a valid notice of objection under sub-scetion (1),the Commissioner may cause further inquiry to be made by an Assessor,and if in the course of such inquiry an agreement is reached as to theamount at which tho appellant is liable to be assessed, any necessaryadjustment of the assessment shall be made.
Section 69 (1) enacts that the appellant ‘ shall state precisely thegrounds of objection in the notice”. The learned Crown Counsel submitsthat-no grounds of objection, whatever, arc set out in R 1. That submission