A. B. Ltd v The Board of Inland Revenue

• Jurisdiction: Trinidad & Tobago
• Judge: Koylass, C.,Burke, M.,Julumsingh, M.
• Judgment Date: 06 October 1980
• Court: Tax Appeal Board (Trinidad and Tobago)
• Docket Number: I 52-60/1979
• Date: 06 October 1980

Tax Appeal Board

Koylass, C.; Burke, M.; Julumsingh, M.

I 52-60/1979

A. B. Limited

and

The Board of Inland Revenue

Appearances:

B. Procope, S. C. and V Alcola for the appellant.

R. Van Lara for the respondent.

No case referred to

Application to strike out appeal

Civil Practice and Procedure - Striking Out — Whether the application to strike out should be granted where the incorrect rule dealing with an extension of time was used — Whether the application to strike out should be granted where the application was premature — Application dismissed — Finding that to dispose of the appeal on the application would be tantamount to dealing with the merits of the appeal itself without the benefit of the statement of case — Rules 17 and 21 of the Appeal Board Rules, 1967 — Order 18, rule 19 — Order 59, rule 11 — Rule 26(1) of Appeal Board Rules — Rule 43E(3).

The respondent applied for an order to strike out the appeal filed by the appellant for non-compliance with the law that an appeal should be filed within 28 days of notification of the decision of the respondent. The appellant raised a preliminary objection to be validity of the application saying that it was premature as the respondent had not yet filed the statement of case. It also stated reasons in support of its appeal alleging, inter alia, that the respondent failed to serve notice of the whole of its decision.

Held:

although it may be desirable to file a statement of case before applying to have an appeal struck out, the failure to do so does not preclude the application and an appeal cannot be disposed of by an order dismissing it or striking it out merely on the ground that it has been filed outside the statutory period unless there is no reasonable cause for not appealing within the time limit and/or the appeal has not been filed thereafter without unreasonable delay and in this case to dispose of the appeal on the respondent's application would be tantamount to dealing with the merits of the appeal itself without the benefit of the ‘respondent's statement of case.

Application refused.

1 The respondent is applying for an order that the appeal filed by the appellant on 28th June, 1979 be struck out.

2 The application was filed on 10th April, 1980 and it reads as follows:–

Application is hereby made to the Appeal Board for an order/direction pursuant to rule 17 of the Appeal Board rules, 1967, That the above appeal be struck out on the basis of non-compliance with the provisions of the Income Tax Ordinance, Chapter 33 No. 1, in that the appellant failed to appeal within 28 days of notification of the decision of the Board of Inland Revenue dated 19th May, 1977.

3 At the outset of the hearing of the application junior Counsel for the appellant raised a preliminary objection to the validity of the application. She pointed out that the application was made under rule 17 of the Appeal Board Rules, 1967 (hereinafter referred to as “the Rules”) and that that rule provides for the granting by the Court of an extension of time for doing any act or taking any proceeding and not for the striking out of an appeal. She further submitted that there was no provision for the striking out of an appeal under the Rules or the provisions of the Income Tax Ordinance hereinafter referred to as “the Ordinance”).

4 Counsel next referred to rule 21 of the Rules. That rule indicates the circumstances in which the Rules of the Supreme Court may be resorted to as an adjunct to the Rules. The Rules of the Supreme Court, she contended, do not provide for the striking out of an action or an appeal. They provides for the striking out of pleadings under Order 18, rule 19 and for taking a preliminary objections under Order 59, rule 11 on the hearing of an appeal.

5 Counsel also submitted that the application was premature. In support of that contention she drew attention to the fact that the statement of case had not been filed. She also argued that if the appeal was related to an action, limitation of time should be pleaded in the statement of case.

6 If, however, it was related to an appeal, the respondent should have filed its statement of case and raise the question of limitation as a preliminary point at the hearing of the appeal. In these circumstances, she contended that the application was an attempt to dispose of the appeal by the back door.

7 In reply, Counsel for the respondent conceded that the reference to rule 17 in the application was an error and submitted that the reference should instead have been rule 5.

8 Counsel for the appellant contended, however, that even the reference to rule 5 was incorrect as rule 5 merely deals with the formal requirements of an application to the Court under the Rules as under any enactment where no other express provision is made therefor.

9 Rules 5(1) and 17 provides as follows:–

• 5.(1) An application to the Court under these Rules, or under any enactment where no other express provision is made therefor, shall be in writing, signed by the applicant, his solicitor or agent, in the Form B with such variations as circumstances may require, and shall be...