Roytin Nominees Ltd et Al v The Board of Inland Revenue
| Jurisdiction | Trinidad & Tobago |
| Judge | Kelsick, C. |
| Judgment Date | 10 March 1971 |
| Court | Tax Appeal Board (Trinidad and Tobago) |
| Docket Number | I 19-24/1968 |
| Date | 10 March 1971 |
Tax Appeal Board
Kelsick, C.
I 19-24/1968
Wells, Q. C. and Michael De La Bastide for the appellants.
Procope, Q. C. and Kong for the respondent.
Cases referred to:
-
(1) Norman v. Goulder (1945) 26 T.C. 293; [1945] 1 All E.R. 352.
-
(2) de Nobriga's Case 133, 137/157.
-
(3) E.F. v. B.I.R. (1967–77) 1 T.T.T.C. 321.
-
(4) X Ltd v. B.LR. (1967–77) l T.T.T.C. 82.
-
(5) Dixon v. Gaunt Limited (1944) 29 T.C. 289.
-
(6) C.LR. v. Goodrick (1941) 12 S.A.T.C. 279.
-
(7) Naik v. C.O.T (S.R.) (1958) 22 S.A.T.C. 97.
-
(8) McAndrew v. EC. of T (1950) 9 A.T.D. 206.
-
(9) Johnson v. MN.R. (1948) C.T.C. 195.
-
(10) M.N.R. v. Pillsbury Holdings Ltd. (1964) C.T.C. 294.
-
(11) Payne v. British Time Recording Co. Ltd. and Courts Ltd. [1921] 2 K.B. 1.
-
(12) Horwood v. Statesman Publishing Co. Ltd. [1929] All E.R. Rep. 554.
-
(13) Dawes v. Daily Sketch [1960] 1 All E.R. 397.
-
(14) Market & Co v. Knight Steamship Co. [1908–10] All E.R. Rep. 1031.
-
(15) City Centre Properties (Overseas) Ltd. v. B.I.R. (unreported) I. 141/ 67.
Application for amplification of Statements of Case and consolidation of appeals.
Civil Practice and Procedure - Statement of Claim — Consolidation — Whether identical statements should be amended and consolidated into one claim — Whether the material facts had been sufficiently pleaded in the Statements of Case so as to permit a proper decision being arrived at on the question of consolidation — Consideration of Payne v. British Time Recording Co. Ltd. and Curtis Ltd. [1921] 2 K.B. 1 and Horwood v. Statesman Publishing Co. Ltd. [1929] All E.R. 554 — Finding that the order for consolidation was to save costs and time — Finding that the appeals should be consolidated — Order 16, rule 1 of the Rules of Supreme Court, 1946 — Section 26 and 30 of the Tax Board Ordinance — Rule 11.
The Revenue was the respondent in six appeals in which the appellants differed. The respondent sought leave to consolidate the appeal. The appellants resisted the application and applied for an amplification of the Statements of Case filed by the respondent.
The Notices of Appeal were filed in respect of the chargeable income of each of the six appellants half of which purported to be additional income. The chargeable income represented profits from the sale of land to the fifth respondent S.D. Co. Each of the other appellants was assessed as agents or attorneys or managers of the vendor. The respondent in their Statement of Case alleged inter alia that the sale was artificial. Identical Statements of Case were filed in each appeal. The appellants wrote to the respondent requesting particulars of certain allegations in the Statements of Case, which were not supplied. As prelude to deciding whether an order for consolidation should be granted, the appellants sought an order for the said particulars.
Counsel for the respondent argued that the appeal was not a cause of action and therefore the court had no jurisdiction to make the order sought and the court could proceed to hear the case without a Statement of Case and the onus is on the appellants to disprove the existence of agency. The appellants contended that needed the particulars to know the case they needed to answer.
(i) in relation to the questioning and alteration of a tax assessment, the onus of controverting the factual assumptions on which an assessment was made is on the taxpayer and as the evidential burden to begin may be shifted to the respondent in a tax appeal under section 34 of the Income Tax Ordinance, it is just and fair that the appellants should be more fully informed as to the nature of the artificiality retied on by the respondent, but they are not entitled to amplification of the other allegations in the respondent's Statement of Case;
(ii) appeals between different appellants and the same respondent can be consolidated where the issues are common and a joint hearing will save time and expense, finally dispose of the matters, obviate any inconsistent findings that may arise if there were separate hearings and none of the appellants would suffer any unjust or unfair embarrassment.
Order made for amplification of Statements of Case with respect to one particular only, and for consolidation of all appeals.
The Board of Inland Revenue, hereafter called “the Revenue”, is applying under rule 11 of the Appeal Board Rules, 1967, for an order of consolidation of six appeals in which the Revenue is the respondent and in which the appellant in each case is a different person or persons. The appellants are resisting the application and are seeking an order, under rule 26(2) of the said Rules, for amplification of the Statements of Case filed by the Revenue.
A reference hereinafter to the Rules or to a rule simpliciter is respectively to be construed as the Appeal Board Rules, 1967 or a rule thereof. A simple reference to an Order (0.), or to a rule thereof, shall be taken to be an Order,
or a rule thereof. of the Supreme Court Rules, 1946; and where it is followed by the symbol “(E)” it is to be interpreted as meaning an Order or rule of the Supreme Court in England.
These applications were heard by the Chairman alone pursuant to section 43G(1A) of the Income Tax Ordinance, Ch. 33. No.1 (hereafter referred to as “the Ordinance”).
The allegations of fact in the Notices of Appeal, which were all filed at the same time by the same solicitor, disclose that each of the appellants was assessed in respect of the year of income 1961 on a chargeable income of $444,704, to a tax of $355,822.80, one half of which purported to be additional tax under section 39(4) of the Ordinance. The chargeable income represents a profit alleged to have been made on the sale of a parcel of land by Edrob Ltd., hereafter called “Edrob”, to Savannah Development Company Ltd., which I shall refer to as “Savannah”. Each of the appellants was assessed as an agent and some of them as the attorney, or manager, of Edrob.
The appeals all came on for hearing at the same sitting of this Court as prescribed by rule 30; no documents relevant to the decision, nor the Statements of Case, having then been filed in accordance with the requirements of section 43D(6) of the Ordinance and rule 26(1). Under rule 5(5) Counsel for the respondent made an oral application, which was not opposed and was granted, for consolidation of the appeals and for extension of time to file a consolidated Statement of Case. Junior Counsel for the appellants who appeared for them consenting, an order was made in terms requested.
This order did not meet with the approval of senior Counsel for the appellants, who was not present at its making, and before it was written up it was vacated on the application for the appellants with the approval of Junior Counsel for the respondent. A consent order was substituted therefor allowing an extension of time for filing a separate Statement of Case (and Answer, if any) in each appeal and postponing the hearing of the application for consolidation until after the Statement of Case had been filed and the time for filing the Answers had expired.
Identical Statements of Case having been filed in each appeal, but no Answers thereto, the application for consolidation was brought on hearing; whereupon the solicitor for the appellants wrote to the respondent requesting particulars of certain allegations in the Statement of Case, which were not supplied. As a prelude to deciding whether an order for consolidation should be granted. Counsel for the appellants sought an order for the said particulars on an oral application made under rule 5(5), without objection from Counsel for the respondent.
No oral evidence was led at the hearing and no affidavits were filed.
Before proceeding to a consideration of the relevant legal principles, I now cite the parts of the notices of appeal and of the Statements of Case which set out the allegations of fact and of law advanced by each party.
The notices of appeal each contained the following allegations of fact:–
2. Edrob Limited (hereinafter referred to as “Edrob”) is a company incorporated in Nassau in the Bahamas and has not at any material time been resident or carried on business in Trinidad and Tobago.
5. The appellant had no connection with and took no part in the allegedly taxable transaction either as an agent for Edrob or at all.
6. On the 13th day of March, 1961, there were allotted to and vested in the appellant as the nominee and trustee for the Trust Corporation of the Bahamas Limted 120,000 Ordinary $1.00 Shares and $326,400.00 worth of Debenture Stock in Savannah Development Company Limited. The said Shares and Debenture were transferred by the appellant to the Trust Corporation of the Bahamas Limited on the 28th day of August, 1967.
The following were the reasons to be advanced in support of all the appeals:–
1. The profit made by Edrob on the sale of the said parcel of land is not taxable because
(a) it is not income within the meaning of the Income Tax Ordinance; and alternatively,
(b) it arose to a non-resident from a contract made outside of Trinidad and Tobago
2. Alternatively, the appellant never acted as the agent of Edrob in connection with the transaction out of which the said profit arose, or at all.
3. In the further alternative, the appellant was not at any or any material time an authorized person carrying on the regular agency of Edrob.
4. The additional tax charged by the respondent purportedly under section 39(4) of the Income Tax Ordinance, Ch.33. No.1 was wrongly charged for the reason that the respondent never purported to apply the provisions of section 39(4) of the Income Tax Ordinance or called on the appellant to satisfy him as to the requirements thereunder.
The Statement of Case is reproduced...
To continue reading
Request your trial