S. M. Jaleel & Company Ltd v The Tax Appeal Board
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Judith Jones |
| Judgment Date | 10 July 2018 |
| Neutral Citation | TT 2018 CA 25 |
| Docket Number | Application No. P. 023 of 2018 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 10 July 2018 |
IN THE COURT OF APPEAL
(CHAMBER COURT)
THE HONOURABLE Madam Justice Judith Jones
Application No. P. 023 of 2018
Mr. B. Atzzs for the Applicant
Ms. S. Sukram and Ms. Yee Fung for the Respondent
Civil practice and procedure - Jurisdiction of court to extend time for making a request to the Registrar of Tax Appeal Board.
On 1 st March 2018 the Tax Appeal Board (the Board) delivered an oral decision in the appeal of SM Jaleel and Co Ltd (the Applicant). The Board provided no reasons for the decision on that date but indicated that it would deliver its written decision containing its grounds and/or reasons on or before 6 th March 2018. The written decision was delivered on 8 th March 2018. The Applicant being dissatisfied with the decision on 27 th March 2018 filed a request with the Registrar of the Board (the Registrar) to state and sign a case for the opinion of the Court of Appeal. The request was refused by the Registrar on the basis that it was out of time.
In the application before me, dated 18 th May 2018, the Applicant seeks orders pursuant to part 61.2 of the Civil Proceedings Rules (the CPR) that the Board state and sign a case for the opinion of the Court of Appeal within 14 days of the date of making such order or alternatively, on the basis of rule 17 of the Tax Appeal Board Rules (the Rules), an order extending the time for the filing of the requisite notice to the 27 th March 2018 and that its notice in writing requesting same do stand.
The Board, on the other hand, submits that part 61 of the CPR has no application to appeals from the Board and that in accordance with the Act the Applicant had 21 days from the delivery of the decision to request that the Board state a case for the determination of the Court of Appeal and accordingly the request was out of time. In any event, it submits, it was, and still is open, to the Applicant to apply to the Board to extend the time for making the request pursuant to rule 17 of the Tax Appeal Board Rules and the Applicant has failed to do so.
Part 61 of the CPR treats with appeals to the High Court or the Court of Appeal by way of case stated and the procedure to be followed in this regard. Part 61.1 identifies the scope of the rule and states:
“(1) This Part deals with the way in which the High Court or the Court of Appeal determines –
(a) (i) a case stated; or
(ii) a question of law referred to it, by a minister, magistrate, judge of a tribunal, a tribunal or other person; or
(b) an application for an order directing a minister, magistrate, judge of a tribunal, tribunal or other person to refer a question of law to the court by way of case stated,
where under any enactment the High Court or the Court of Appeal has power to determine such matters.
(2) In this Part –
“case” includes a special case;
“clerk to the tribunal” means the clerk, secretary or other person responsible for the administration of the tribunal;
“court” means the High Court or the Court of Appeal as required by the particular enactment;
“enactment” includes the Constitution; and
“tribunal” means –
(a) in relation to proceedings brought under section 14(4) of the Constitution, a court other than the High Court, the Court of Appeal or a Court Martial; and
(b) in relation to any other proceedings, any tribunal constituted by or under any enactment other than a court of law.”
In the case of Jimdar Catering Ltd v The Board of Inland Revenue Civil Appeal P256 of 2016 a question arose as to the proper procedure to approach the Court of Appeal in an appeal from the Board. In that case it was determined that part 61 of the CPR did not apply to appeals from the Board. I accept the position as stated in that case as reflective of the law. Insofar as part 61.1 (a) is concerned it clearly does not refer to an appeal from an assessment of tax. Insofar as 61.1 (b) is concerned the Board, being a superior court of record, cannot be considered a tribunal as defined by the rule.
Further it is clear that the procedure to approach the Court identified in part 61 is inconsistent with the procedure identified in the Act at section 9. Accordingly, as was stated in Jimdar, part 61 has no application to appeals from the Board and the procedure to commence an appeal from the Board is as set out in section 9 of the Tax Appeal Board Act Chap 4:50 (the Act). This accords with an earlier decision of the Court in the Board of Inland Revenue v Alim Khan Juman Civ. App. 21/83 on similar provisions contained in the Income Tax Ordinance Chapter 33 No. 1. Insofar as the Board submits that Part 61 of the CPR does not apply to appeals from the Board it is therefore correct.
Insofar as it is relevant section 9 of the Act states:
“(1) The appellant or the Board of Inland Revenue or other respondent if, dissatisfied with the decision of the Appeal Board as being erroneous in point of law, may, within twenty-one days after the delivery of the decision or within such other time as may be prescribed by Rules of Court made under section 10, appeal against such decision by –
(a) filing with the Registrar a notice in writing, in the prescribed form, requesting the Appeal Board to state and sign a case for the opinion of the Court of Appeal; and
(b) serving a copy of the said notice on the Board of Inland Revenue or other respondent or on the appellant, as the case may be.
(2) Where the appellant requires the case to be stated, the notice shall be accompanied by a fee of ten dollars.
(3) The case shall set forth the facts and the determination of the Appeal Board and the party requiring it shall transmit the case, when stated and signed, to the Court of Appeal within twenty-one days after receiving the same.
(4) At or before the...
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