029-NLR-NLR-V-76-THE-ATTORNEY-GENERAL-Appellant-and-S.-J.-F.-FERNANDO-Respondent.pdf
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WIJAYATILAKE, J.—Attorney-General v. Fernando
Present: Wijayatilake, J.
THE ATTORNEY-GENERAL, Appellant, and S. J. F. FERNANDO^
Respondent
S. C. 919/71—M. C. Negombo, 43259
Income tax—Notice of assessment issued to a person—Failure ofassessee to furnish return—Court in which the assessee is liableto be prosecuted for his default—Inland Revenue Act No. 4 of1963, ss. 82 (1), 111, 118 (1) (a).
Where a person who receives a notice from an Assessor requiringhim to furnish at the Regional Office a return of his income failsto post such return, the jurisdiction of the Court in which he isliable to be charged under section 82 (1) read with section 118 (1)(a) of the Inland Revenue Act No. 4 of 1963 for his default isdetermined by the place where the Assessor’s Regional Office is-situated and not by the place of residence of the assessee.
Appeal from an order of the Magistrate’s Court, Negombo..Faiz Mustapha, State Counsel, for the Attorney-General.
Accused-respondent absent and unrepresented.
Cur. adv. uuli.
January 22, 1973. Wijayatilake, J.—
This Appeal raises a question of jurisdiction. The accused wascharged under section 82 (1) read with section 118 (la) of theInland Revenue Act No. 4 of 1963 for failing to furnish atNegombo within the jurisdiction of the Magistrate’s Court,Negombo a Return of his income, wealth and gifts and that ofhis family for the year of assessment 1968-69 as required by anotice in writing dated 7.5.68 given to him by an Assessor ofthe Department of Inland Revenue.
The accused pleaded “ not guilty ” to the charge and on thedate of trial before the prosecution adduced evidence anobjection was taken in limine to the jurisdiction of theMagistrate’s Court, Negombo, to try the accused, his place ofresidence being Wennappuwa within the jurisdiction of theMagistrate’s Court, Chilaw, and therefore the offence, if any,could only have been committed at Wennappuwa outside thejurisdiction of the Magistrate’s Court, Negombo.
Counsel who had appeared for the accused admitted that theaccused had not furnished the Return as required. The noticereferred to in the charge has not been produced. However, theadmission referred to above, in effect, clearly indicates that the
WT.TA V ATTT. ATCF., J.—Attorney-General v. Fernandoi8B
notice issued by the Assessor from his Regional Office atNegombo as set out in the charge had been duly received bythe accused and he has ignored it. The question therefore ariseswhether the Magistrate’s Court, Negombo, had the jurisdictionto entertain the plaint in this case.
The learned Magistrate has upheld the objection anddischarged the accused. He has taken the view that proof ofdue posting completes the obligation of a person who has beennoticed as in the' instant case and therefore the offence allegedwould have been committed at Wennappuwa, the residence ofthe accused as he had failed to post his Return. He proceeds tohold that proof of posting completes the obligation and thatthere is no burden on the accused to prove the receipt of theReturn at the Regional Office or at the Head Office in Colombo.
The Magistrate appears to have taken this view in the lightof the predicament of a person who has duly posted a Returnbut the addressee insists on. its non-receipt. He proceeds toobserve that “ once it is conceded that proof of due posting isproof of furnishing the Return, an omission when it occurs,would be in terms relevant to acts done-or omitted by a personin the locality of his residence. The offence then of failure tofurnish a Return one can conclude arises in the area of hisresidence ”.
In the instant case the accused has admittedly not posted aReturn. Learned State Counsel submits that on the notice issuedthe accused had to furnish his Return at the Regional Office,Negombo, and the accused has admittedly failed to make thisReturn as contemplated. In the circumstances, the residence ofthe accused would be immaterial. What is necessary is the“ provision or supply ” of the Return at the Regional Office. Therelevant “ locus ” for the purpose of jurisdiction is Negombo.He submits that there is no provision in the Inland RevenueAct setting out the jurisdiction in regard to an offence of thisnature. Section 111 of the Act which provides for a Magistratewithin whose jurisdiction the defaulting tax payer had his lastknown place of business or residence to entertain certificatesfrom the Commissioner of Inland Revenue only refers to theprocedure in regard to the recovery of the taxes imposed. Herelies on the judgments In re Abu Baker1 52 N. L. R. 286 andPonnudurai v. Ratnaweera* 67 N. L. R- 501 ; and Section 106 (1)of the Companies Ordinance, Vol. 6, at page 126.
I am inclined to agree with State Counsel that section 111 hasno application at this stage. I also agree with him that in termsof the notice, the receipt of which is admitted, that the accused
(1950) 52 N. L. R. 286.
‘ (1964) 67 N. L. R. 501.
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VPickremanayaJco v. Simon AppU
had to furnish the Return at Negombo and on his failure to doso the Magistrate, Negombo, was entitled to entertain the plaint.If the accused had posted his Return at any Post Office inNegombo, Chilaw or elsewhere and there was proof of suchposting the receipt of the Return may well be presumed undersection 114 of the Evidence Ordinance.
I am unable to agree with the learned Magistrate that theomission on the part of the accused to send the Return wouldbe in terms relevant to an act done or omitted by him in thelocality of his residence only. As I have already held theMagistrate’s Court, Negombo, has jurisdiction to entertain theseproceedings. The question may arise whether the Magistrate’sCourt, Chillaw, or any other Magistrate’s Court also has jurisdic-tion. In this connection I might refer to sections 135-138, 142 and145 of the Criminal Procedure Code. In this context the lastknown place of business or residence may be relevant. However,I do not think it necessary for me to answer this question inthese proceedings.
I would accordingly set aside the Order of the learnedMagistrate and send the case back for Trial de novo beforeanother Magistrate.
Order set aside.