Bocas v Board of Inland Revenue

• Jurisdiction: Trinidad & Tobago
• Judge: Kelsick, C.J.,Braithwaite, J.A.,Bernard, J.A.
• Judgment Date: 29 November 1985
• Neutral Citation: TT 1985 CA 66
• Docket Number: Civil Appeal No. 38/1981
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 29 November 1985

Court of Appeal

Kelsick C.J.; Braithwaite J.A.; Bernard J.A.

Civil Appeal No. 38/1981

Bocas

and

Board of Inland Revenue

Appearances:

S. Shivarattan for the appellant

B. Roopnarina and Ms. S. Collymore for the respondent

Revenue Law - Income tax — Additional assessment — Whether Board of Inland Revenue was at liberty to inspect bank documents for information on tax payer's account — Evidence Ordinance, Chap. 7:09, s.30.

Kelsick, C.J.

1 This is an appeal against an order made on February 13th, 1981 by the Appeal Board under s. 27 of the Evidence Ordinance Chap. 7:02) on an interlocutory application by the respondent made on March 18th, 1980:

• (a) That the respondent be at liberty to inspect and take copies of any entries in the books of the Canadian Imperial Bank of Commerce (“the Bank”) at Valpark Plaza, Valsayn, relating to an account in the names of Jesus Bocas and/or his wife Felicia Bocas, in respect of the period January 1st, 1971, to December 31st, 1971;

• (b) That the aforesaid order be served on the said Bank at Valpark Plaza, Valsayn.

2 The application was made at the outset of the hearing of an appeal by the appellant against an additional assessment to income tax and unemployment levy for the yeas of income 1971 under s. 45 of the Income Tax Ordinance Chap. 33:01 (“the Ordinance”) Which reads:

• “45. (1) Subject to the provisions of this section, where it appears to the Board that any person liable to tax has hot been assessed, or has been assessed at a less amount than that which ought to have been charged, the Board may within the year of income or within six years after the expiration thereof, assess such person at such amount of additional amount as according to its judgment ought to have been charged, and the provisions of this Ordinance as to notice of assessments appeal, and other proceedings, under this Ordinance shall apply to such assessment or additional assessment and to the tax charged there under.”

3 The appellant had filed for that year a self-assessed return which was accepted by the respondent. Subsequently, as a result of a tax audit report, the respondent had assessed the respondent on additional income imputed to him for the said year. The appellant carried on the business of a racing pool operator and he also received income from the rental of properties in the year of income, 1971. In his income tax return he stated that he was living together with his wife Felicia. He claimed the wife allowance and wife and earned income allowance.

4 The wife's income was declared to be $300.00 from office or employment. Section 18 of the Ordinance which at the relevant time was operative, provided that:

• “18. The income of a married woman living with her husband shall for the purpose of this Ordinance, be deemed to be the income of the husband, and shall be charged in the name of the husband and not in her name nor in that of her trustee.”

5 In the course of the audit examination the appellant had been requested by letter dated March 7 ^th 1977, to produce to the respondent all savings books bank statements, deposit slips cancelled cheques, etc. relating to accounts held in the names of the business, of the appellant or of any of his dependents. The only records produced were bank statements from a branch of the Bank in the names of the appellant and his wife for the calendar year 1971. An examination by the respondent of its own records disclosed that the appellant, his wife or his dependants maintained and operated a bank account at another branch of the Bank into which for the calendar year 1972 there was deposited the sum of $$85,967.37. The respondent estimated the deposits for the previous year at the same figures. Added thereto was an amount of $34,737.00 that represented interest and bank charges which the appellant failed to satisfy the respondent had been incurred in the production of his rental income. In the result the chargeable income tax and unemployment levy were increased from $14,263.24, $3,978.50 and $213.17 respectively to $134,964.00, $67,482.00 and $6,248.20. The appellant appealed against that additional assessment to the Appeal Board on the ground that he had never earned the additional income.

6 Sections 23 to 27 of Chap. 7:09 (reproduced in ss. 26 to 30 of Chap. 7:02) are adapted with modifications from ss. 3 to 7 of Bankers Book Evidence Act, 1879 (U.K.). The definitions in s.21 of Chap. 7:09 are derived from s. 9 of the U.K. Act. Section 27 Chap. 7:09, under which the application for inspection was made, is similarly worded to s. 7 of the 1879 Act and reads:

• “27. On the application of any party to a legal proceeding, a court or judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of such proceedings. An order under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank three clear days, exclusive of Sundays and public holidays, before the same is to be obeyed, unless the court or judge otherwise directs.”

7 The following definitions appear in s.18 of Chap. 7:09:

“‘bankers’ book’ means and includes ledgers, day books, cash books, account books, and all other books used in the ordinary business of a bank;

‘legal proceeding means any civil or criminal proceedings or enquiry in which evidence is or may be given before any court of justice, judge, magistrate or justice, arbitrator, commissioner or person or persons authorised by the Supreme Court to take evidence;

‘Judge’ means a judge of the Supreme Court, or of a Petty Civil Court;

‘bank and ‘banker’ means and includes –

• (a) any person or persons, partnership or company, carrying on the business of bankers in Trinidad and Tobago or the manager;

• (b) any person or persons, partnership or company, who may hereafter carry on the business of bankers in Trinidad and Tobago and who hereafter, under the authority of any Act may establish a banking association in Trinidad and Tobago, or the manager.”

8 Section 43 C (6) of the Ordinance provided:

• “(6) The Appeal Board, as respects the attendance and examination of witnesses, the production and inspection of documents, the enforcement of its orders, the entry on and inspection of property, and other matters necessary or proper for the due exercise of its jurisdiction, has all such powers, rights and privileges as are vested in the High Court of Justice on the occasion of an action.”

9 The object of these enactments is to facilitate bankers and to obviate the disruption of their business occasioned by the production of their books in court. See Parnell v. Wood [1892] p.137 at 140-1; Emmot v The Star Newspaper Co....