029-NLR-NLR-V-77-M.-T.-IDROOS-Petitioner-and-THE-COMMISSIONER-OF-INLAND-REVENUE-Respondent.pdf
DE KRETSER, J.—Idroos v. Commissioner of Inland Revenue
165
1968Present : de Kretser, J.
M.T. IDROOS, Petitioner, and THE COMMISSIONER OFINLAND REVENUE, Respondent
S.C. 235—Application in Revision in M.C. Colombo, 4217/A
Inland Revenue Act No. 4 of 1963—Section 111(6)—Proceedings beforea Magistrate for recovery of tax—Scope of Magistrate’s power toadjourn the matter.
Where, in proceedings before a Magistrate for the recovery ofincome tax, the person proceeded against seeks an adjournment interms of section 111 (6) of the Inland Revenue Act, No. 4 of 1963,the Magistrate has no power to grant adjournments in brokenperiods.
^APPLICATION to revise an order of the Magistrate’s Court,Colombo.
M. S. Osman, with M. A. Mansoor, for the petitioner.
Shiva Pasupati, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
July 25, 1968. de Kretser, J.—
This matter came up before me by way of revision. The factsare as follows : —
The petitioner Idroos came before the Chief MagistrateColombo on 14.3.68 on a summons issued by the Chief Magis-trate consequent on the receipt of a certificate filed by theCommissioner of Inland Revenue certifying that Idroos haddefaulted in paying tax to the tune of Rs. 13,544.00, and movedfor an adjournment under the provisions of Section 111 (6) ofthe Inland Revenue Act No. 4 of 1962. The Magistrate gave himan adjournment up to 10.4.68 which is a period of 27 days. On
the petitioner was absent. The journal entry is silent onthe point but the Magistrate’s subsequent order makes it clearthat on that day a medical certificate dated 9.4.68' certifying thatIdroos had been under treatment for coronary insufficiency from
was handed in. From an affidavit filed by the Commissionerof Inland Revenue, I am satisfied that the petitioner had on
written to the Commissioner that he was unable to submithis objections owing to illness. On 9.4.68 the Commissioner ofInland Revenue had in terms of Section 111(7) sent in hiscertificate that the petitioner had not raised any objectionsbefore him and this certificate was also before the Magistrate
] 6t>DE KRETSER, J.—Idroos v. Commissioner of Inland Revenue
on 10.4.68. The Magistrate directed that this case be called on6.5.68. He says in his subsequent order that this was in view ofthe medical certificate filed. On 6.5.68 the petitioner was presentand was represented by Counsel. The Commissioner of InlandRevenue was also represented by his legal officer. The mainpoint among other points urged was the only point now urgedbefore me. It was that the Magistrate had the right and shouldhave exercised the right to give further time to the petitionerto raise his objections before the Commissioner.
Mr. Osman for the petitioner submitted before the Magistrateand also before me that the Magistrate had the right to atleast give three more days in that in the first instance he hadgiven only 27 days though he had the right to give up to 30 days.The Magistrate was of the view that he had no power to givethe 30 days referred to in broken periods and that the sectionobviously contemplated a continuous period not to exceed 30 .days granted at his discretion. I am in entire agreement with theMagistrate in regard to his observations on the point. In myopinion the only discretion the Magistrate had in the matterwas in regard to the period of time which he*would grant in thefirst instance when in terms of Section 111 (6) the application fortime was made to him. His discretion in the matter was only inregard to the number of days not exceeding 30 that he wouldgive the petitioner to enable him to submit to the Commissionerhis objections to the tax sought to be recovered. Once he hadexercised his discretion, he had no further discretion in thematter. The fact that the Magistrate was presumably satisfiedby the medical certificate which was in no way challenged, thatthe petitioner took ill on 20.3.68 and the fact that owing to thenature of that illness the petitioner could not do what he hadtaken time to do, do not permit the Magistrate to do anythingmore in the matter. What he was given the discretion to do interms of the Act, he had done and thereafter the law had to takeits course. It certainly seems incongruous that the obviousintention to give a defaulter a last chance to make his submissionto the Commissioner should be lost to him owing to circumstancesover which he had no control whatsoever, but whether in suchcases the Magistrate if satisfied as to their genuineness shouldhave discretion to give further time is a matter for the legislatureto consider and make provision for.
In the instant case it appears a pity that the petitioner whoapparently had facts at his command to persuade the Commis-sioner that there was an error in the assessment which was thebasis on which he had moved the Court for time, should havelost six days without placing them before the Commissioner—
H. N. G. FERNANDO, C.J.—Fitter v, Dahanayake
167
a state of things that apparently made at least the lawyer forthe Commissioner to have suspicion that this was just anotherattempt to put off the day of reckoning.
The application made in revision is refused.
Application refused.