Standard Distributors Ltd v Board of Inland Revenue
| Jurisdiction | Trinidad & Tobago |
| Judge | Koylass, C.,Burke, M.,Julumsingh, M. |
| Judgment Date | 20 April 1968 |
| Court | Tax Appeal Board (Trinidad and Tobago) |
| Docket Number | A 3-4/1968 |
| Date | 20 April 1968 |
Tax Appeal Board
Koylass, C.; Burke, M.; Julumsingh, M.
A 3-4/1968
Cases referred to:
(1) Scottish Shire Line Limited v. Lethem (1912) 6 T.C. 91; S.C. 1108.
(2) Davis v. R. (1962) 4 W.I.R. 375.
(3) Whitney v. I.R. Comr [1926] A.C. 37; 42 T.L.R. 58; 10 T.C. 88.
Statute - Statutory interpretation — Definition of “date of decision” in Section 43D(2) of the Income Tax Ordinance — Whether the date of decision was the date of the decision of the Commissioner of Inland Revenue was served on the applicant — Consideration of Scottish Shrine Line Ltd. v. Letham (1912) 6 T.C 91 and Davis v. R (1962) 4 W.I.R. 375 — Definition of the expressions “Notice” and “a notice” in section 66 — Whether section 66(2) of the Income Tax Ordinance required that a notice to be given by Revenue or notice of some fact to be communicated by them — Time of receipt or service of the decision — Whether the decision of the Revenue required it to be in writing and could be considered a document within the meaning of section 23(2) of the Income Tax Ordinance — Extension of time — Whether the applications for an extension of time to file notice of appeal against the assessments of the applicant to income tax where the applications were filed within the prescribed period — Finding that the words “of the service on such persons” were by inadvertence or oversight were omitted and should be read into section 43D(2) immediately after the word “date” — Finding that the time for appealing ran from the date of service of the Respondent's decision was received or deemed to have been received by him — Finding that section 66 (2) required a notice — Finding that the decision should be in writing — Finding that the applications were filed within the prescribed period — Section 43D(2) of the Income Tax Ordinance — Rule 23(1) of the Appeal Board Rules
These are two consolidated applications for an extension of time to file notices of appeal against the confirmed assessment of the applicant for the years 1961 and 1963. According to section 43D(2) of the Income Tax Ordinance:
“The appeal shall be instituted by filing with the Registrar a notice of appeal and serving a copy thereof on the Board of Inland Revenue within twenty-eight days of the decision of the said Board.”
The applicant filed with the Registrar notices of appeal dated 2nd October 1967. The applicant also filed an affidavit under rule 23 which provides for an extension of the time for appealing under section 43D(3) if the grounds of appeal prima facie show good cause for the appeal together with an affidavit setting forth the reasons for the application.
(i) a court of law is permitted to modify the language of a statute so that it will reflect the intention of parliament in particular circumstances, in particular where the language is doubtful or obscure and since the phrases “the date of the decision” and “the date of service on him” were not clear, the statute should be modified by inserting the words “of the service of such persons” so that the time for appealing runs from the date of service of the respondent's decision on the applicant. The word “notice” does not refer to a particular document referred to as a notice elsewhere in the Ordinance;
(ii) where the revenue elects to transmit a document by ordinary post, they must assume the burden of proving not only its receipt by the addressee but the date of such receipt. From the evidence the earliest date of receipt is September 30, 1967 therefore the appeals were filed Within the prescribed period and these applications are unnecessary.
Applications refused.
Application for extension of time to file appeals against the confirmed assessment of income tax for the respondent.
Armorer for the appellant.
Cox for the respondent.
These are two consolidated applications for an extension of time to file notices of appeal against the confirmed assessments of the applicant to income tax to the years of assessment 1961 and 1963. They were signed by Clarence de Lisle Edghill; a tax consultant, as the agent of the applicant under rule 5(1) of the Appeal Board Rules, 1967 and were made pursuant to section 43D(3) of the income Tax Ordinance Ch.33. No.1 (hereinafter referred to as “the Ordinance”), and rule 23(1) of the Appeal Board Rules. Section 43D and rule 23 provide in part as follows:–
Section 43D. (1) Any person who has disputed his assessment by notice of objection under this Ordinance, and who is dissatisfied with the decision of the Board of Inland Revenue therein, may appeal to the Appeal Board and the provisions of this section shall apply thereto, and to every other appeal to the Appeal Board under any other provisions of this Ordinance or any other enactment.
(2) The appeal shall be instituted by filing with the Registrar a notice of appeal and serving a copy thereof on the Board of Inland Revenue within twenty-eight days of the date of the decision by the said Board.
(3) If it be shown to the satisfaction of the Appeal Board that, owing to absence, illness, or other reasonable cause, any person has been prevented from appealing in the time specified, the Appeal Board may extend the time within which the appeal may be heard.
(4) The notice of appeal shall specify the grounds of appeal, and subject thereto, the appeal shall be in such form as may be prescribed by rules of the Appeal Board.
Rule 23 (1) A application for an extension of the time for appealing under section 43D(3) of the Ordinance shall contain grounds of appeal which prima facie show good cause for the appeal, and together therewith there shall be filed an affidavit setting forth the reasons for the application.
(2) A copy of the affidavit shall be attached to every copy of the application served on an interested party.
On 3rd October, 1967 the applicant filed with the Registrar of the Appeal Board notices of appeal dated 2nd October, 1967 against its assessment to income tax by the respondent for the years of assessment 1961 and 1963.
The grounds of appeal contained in the said notices are as follows:–
(a) No allowance has been made in respect of unearned profits in hire-purchase dealings nor for bad and doubtful debts arising therefrom nor in respect of losses brought forward.
(b) The unearned profit claimed by the Company was made on a proper basis and in accordance with commercial principles and should be allowed.
The applications were filed on 4th October, 1967 and the grounds of appeal contained therein, which were in substance the same as those in the notices of appeal, are:–
that the claim for unearned profits by the company was made on a proper basis and in accordance with commercial principles and should be allowed, and that no allowance whatever has been made in respect of unearned profits in hire purchase dealings.
These grounds prima fade show good cause for the appeal.
An affidavit sworn to by Edghill, which was filed with the applications under rule 23, was admitted in evidence under rule 5(4) of the Appeal Board Rules. The facts deposed to therein were uncontested and were accepted by the Court as being true. The excuse by way of reasonable cause offered in the affidavit was directed towards explaining the failure of the deponent, as agent for the applicant, to file the notices of appeal on 2nd October, which he considered to be the last day for appealing. The following were the facts relied on as constituting such reasonable cause. The consultant had decided on an appeal in the last week of September: he was able to obtain an appointment with counsel (presumably to settle the grounds of appeal) and so on 30th September (a Saturday) he wrote a letter to the Registrar of the Appeal Board appealing against the respondent's decision. On contacting the Registrar by telephone with a view to delivering the letter by hand, the Registrar drew his attention to the prescribed form of Notice of Appeal in the Appeal Board Rules which had been published (on 29th April, 1967) during the deponent's absence from the country. Though he filled out the prescribed form and gave instructions for its filing on 2nd October to his messenger, the latter omitted to do so until 3rd October.
According to section 43D(2) of the Ordinance, the notice of appeal against assessment to income tax must be filed within 28 days of the date of decision by the Board of Inland Revenue, whom I shall hereinafter refer to as “the Revenue”. The words “date of decision” are not plain and are ambiguous. They could mean the date when the decision was signed or the date when it was delivered or communicated to the person affected thereby. This doubtful or obscure meaning can be resolved by reference to the history of the section and to the scheme of the Ordinance as disclosed in other sections thereof.
Section 43D was enacted by section 29 of the Finance Act, 1966 (No. 29/1966) (hereinafter referred to as “the Act of 1966”) and it replaced section 43B of the Ordinance which was enacted by section 30 of the Income Tax (Amendment) Act, 1963 (No. 16/1963).
Section 43B enabled the appeal to be brought by an appellant within 28 days “of the date of the service on him” of the decision of the Commissioner of Inland Revenue. Similarly worded is the proviso to section 42(2) of the Ordinance which requires the notice of objection, which must precede a notice of appeal, to be made within fifteen days of the service of the notice of assessment on the taxpayer. Where a close company is dissatisfied with a direction of the Revenue to distribute its dividends as profits or with a refusal of the said Board to relieve the company from compliance with any such direction, the company may appeal to the Appeal Board “within 28 days of receipt of notice of such refusal or direction”, under section 51(3) of the...
To continue reading
Request your trial