072-NLR-NLR-V-59-TIRIMANNE-Petitioner-and-COMMISSIONER-OF-INCOME-TAX-Respondent.pdf
304
Tirimanne v. Commissioner of Income Tax
1957Present■: Weerasooriya, J. and Sansoni, J.
TIRIMANNE, Petitioner, and COMMISSIONER OF INCOMETAX, Respondent
S. C. 36G—Application in Revision in M. C. GampaJia, 30,205
Income Tax Ordinance {Cap. 1SS)—Section SO (1)—Order made thereunder—-Application to Supreme Court to revise it—Effect of delay in filing it.
An application to roviso an order mndo by a Magistrate under section SO (1)of tho Income Tax Ordinance will not bo entertained if there is inordinate delayin filing it.
jAlPPLICATIOX to revise an order made by the Magistrate’s Court,Gampaha.
S. Ambalavanar, for the petitioner.
A. Mahendrarajah, Crown Counsel, for the Attorne3'-Gencral.
Cur. adv. vult.
YYEBRASOORIYA, J.—Ttrtmanne v. Commissioner oj Income Tax 305
September 11, 1957. WeeraSOOKiva, J.—
This is an application to revise an order made by the Magistrate ofGampaha calling upon the petitioner to pay a sum of Es. 15,359-01,as a fine under the provisions of section SO (1) of the Income TaxOrdinance (Cap. 1SS) and imposing on her a term of simple imprison-ment in default of payment within the time specified in the order. Thesaid sum represents excess profits duty due from one If. V. E. Tirimannewho died on the 7th August, 1950, and which the petitioner was heldliable to pay as the executrix under his last will, letters of administration* having issued to her in that capacity in D. C. Colombo IsTo. 14,000 (Testa-mentary).•
In the connected application No. 367 the petitioner seeks to revisea similar order made in respect of a sum of Es. 8,771*69 due from thedeceased as income tax. The substantial objections taken by thepetitioner to these orders are that even conceding her knowledge ofthe assessments to tax made against the deceased she has since dis-tributed the assets of the estate (valued at Es. 2S0,737) and that certainprovisions of the Income Tax Ordinance were not complied with andshe is not, therefore, liable to be dealt with under section SO (1) of thatOrdinance.
Learned Crown Counsel appearing for the respondent took a preli-minary objection before us that there was unreasonable delay on thepart of the 2’etit-ioner in making these applications and that the Courtshould therefore not entertain them. The ground of objection .is that while the orders in question were made on the 15th December,
the applications (both undated) were Hot filed till the 24tli July,
1957.
The excuse put forward by petitioner’s counsel for the delay is thatin the first instance an appeal was filed against each of the orderscomplained of on the same date on which they were made. But as farback as 1933, in the case of The Commissioner of Income Tax v. de Vos1this Court held that no appeal lay from an order made by a Magistrateunder section SO (1) of the Income Tax Ordinance. The ruling in thatcase has never been questioned as far as I am aware and has been con-sistently followed in a number of Inter cases. See, for example, Vaz v. ■Commissioner of Income Tax 2, de Silva v. Commissioner of Income Tax 3,William v. Commissioner of Income TaxJ and De Jong v. Commissioner 'of Income Tax5. It is clear that in view of these decisions the propercourse which the petitioner should have adopted if she wished to obtainrelief from the orders was to file an application in revision as has nowbelatedly been done. Even if the petitioner’s legal advisers were,quite inexcusably, ignorant of the decisions referred to, at the timethat the appeals were filed the Magistrate made a minute in the journal'which they could not have failed to note) that there was no right of
.3 {1933) 35 N. L. Ii. 349.3 {1951) S3 N. L. It. 2S0. –
*'{1945) 46 N. L. R. 200.'* {1954) 56 N. L. R. 257.
5 (1955) 57 N. L. R. 279. . *
"306 WBERASOORIYA, J.—Tirimanne v. Commissioner oj Income Tax
. appeal. He, however, made order, as ho was bound to do, that theappeals be forwarded to this Court in due course. The appeal in thecase to which the present application relates was rejected by this Court-on the 10th of April, 1957. The appeal in the connected case wasrejected on the 9th April, 1057. In both appeals there was no appearancefor the appellant. Even though the petitioner was not representedat the hearing of the appeals it is too much to believe that she did notcome to know of the orders rejecting them soon afterwards. One wouldhave expected that in the circumstances, if she had a genuine grievancewhich cried for redress, she would have immediately taken the appro-priate steps as indicated earlier. On the contrary, a further threemonths elapsed before the applications under consideration were filed.By these dilatory tactics the petitioner has gained much more timethan was granted by the Magistrate for the paj-ments of the amounts•due. It is clear that if these applications had been filed soon afterthe orders complained of were made they would have been disposed oflong ago.
The question that arises, therefore, is whether having regard to thisinordinate delay the present applications should be entertained by thisCourt with a view to the exercise of its discretionary power to revise-the orders which were made by the Magistrate on the footing that thepetitioner is liable to be dealt with under section SO (1) of the IncomeTax Ordinance in respect of the amounts due as tax.
In this connection it is necessary, I think, to reject, once and for all,the plea put forward by learned counsel for the petitioner that the delayin making these applications should not be held against her becauseshe may have filed the appeals in the expectation that even if theywere rejected this Court would consider her objections to the ordersappealed from in the exercise of its revisionary powers. But whilethere is no doubt that it is open to this Court to exercise these powerswhen an illegal or otherwise improper order of a subordinate Court isbrought to its notice in the course of an appeal, I do not see how anyparty who deliberately elects to adopt a remedy which repeatedly hasbeen held not to be the correct one can, when the question of delayarises as a relevant consideration, ask to be excused for not havingin the first instance availed himself of the proper remedy.
In the case of The Attorney-General v. Kiinchikambu1 this Court wasinvited in the exercise of its revisionary powers to set aside a sentenceof a fine imposed on an accused and impose a sentence of imprisonmentas required by the relevant penal provision of law under which he hadbeen convicted. The sentence was passed about three months priorto the making of the application in revision, and a further two monthshad elapsed when the application was heard. Although the judgmentsuggests that the delay was one of the grounds for refusing the applica-tion it would appear that it was the sole ground. Ho doubt, in thatcase the application if allowed would have resulted in the accused
{1975) 40 N. L. Jl. 401.
K. D. DE SIXVA, J.—Podi Apptihamy v. Daniel Appuhamy
307
receiving a more severe sentence than that imposed, but I do not think• that the question of delay is relevant only in such a case..
In my opinion this application should not be entertained in view ofthe delay in filing it and is dismissed with costs fixed at Rs. 52 '50.
Saksoxt, J.—I agree.■
Application dismissed.