127-NLR-NLR-V-39-COSMAS-v.-THE-COMMISSIONER-OF-INCOME-TAX.pdf
Cosmos v. The Commissioner of Income Tax.
457
1938Present: Poyser and Keuneman JJ.
COSMAS v. THE COMMISSIONER OF INCOME TAX2—D. C. (Inty.) Special
Income tax—Case stated to Supreme Court—Notice to opposite party—Delayin giving notice—Rejection of appeal—Ordinance No. 2 of 1932, s. 74 (3).Where a person, on whose application a case was stated for the opinionof the Supreme Court under section 74 of the Income Tax Ordinance,Transmitted the case to the Supreme Court on January 17, 1938, andgave notice to the Income Tax Commissioner on March 21, 1938,—Held, that the appellant had failed to comply with the requirement ofsection 74 (3) that the notice should be given at pr before the time hetransmits the case to the Supreme Court.
T
HIS was a case stated for the opinion of the Supreme Court by theBoard of Review under section 74 of the Income Tax Ordinance.
S. J. C. Schokman, C.C., for the Commissioner of Income Tax.—There isa preliminary objection to the hearing of the case stated as the assessee-appellant has not given notice to the Commissioner within the timeprescribed by section 74 (3) of Ordinance No. 2 of 1932. The Com-missioner in his affidavit states that notice was given to him on March21, 1938. The stated case was transmitted to this court on January 17,1938.
All the provisions of section 74 (1), (2), and (3) must be complied withbefore the Supreme Court can hear and determine under section 74 (5)the question of law arising on the stated case. The provisions ofsection 74 (3) are peremptory and not directory.
In England the Queen’s Bench has held that it has no jurisdictionto hear a case stated by the Justices under 20 & 21 Victoria c. 43, s. 2,unless the stated case has been transmitted and the respondent givennotice within the time prescribed in the section (vide Edwards v.Roberts ’, Aspinall v. Sutton *).
The Supreme Court has rejected appeals under the Civil ProcedureCode where the appellant has failed to comply strictly with therequirements of the law (vide Attorney-General v. Karunaratne et als,Obeyesekera v. Edwardias et al.'). It has also refused to allow applica-tions for leave to appeal to the Privy Council where the provisions asto the giving of notice of the application to the opposite party have not- been complied with (vide Weerakoon Appuhamy v. Wijesinghe*). Thesame principles would apply in the present case.
N. Nadarajah (with him E. F. N. Gratiaen and D. W. Fernando),for the assessee, appellant.—There is no provision of law which enablesthe Supreme Court to reject a stated case on the ground of. delay ingiving notice to the other side after the applicatioiT'has been entertainedunder section 74 (1). The provisions of section 74 (3) are only directoryand the Commissioner in this case has had notice of the stated case.
> (1891) 1Q.B.D. 302.^3 37 N. L. R. 57.
1 (1894) 2 Q. B. D. 349.* 23 N. L. R. 124.
• 30 N. L. R. 2S6.
458
POYSER J.—Cosmos v. The Commissioner of Income Tax.
“At or before the time” in section 74 (3) means “about the time”1and would permit of the notice being sent to the other party within areasonable time of the stated case being transmitted to the SupremeCourt (vide ex parte Rosenthal—In re Dickinson*).
May 30, 1938. Poyser J.—
This is a case stated for the opinion of the Supreme Court under theprovisions of section 74 of the Income Tax Ordinance, 1932. The casewas stated by the Board of Review on January 4, 1938. The appellantin accordance with the provisions of section 74 (2) transmitted the case tothe Supreme Court on January 17, 1938, thus complying with the pro-visions of the sub-section. Section 74 (3) is as follows : —
“ At or before the time when he transmits the stated case to theSupreme Court, the party requiring it shall send to the other partynotice in writing of the fact that the case has been stated on his appli-cation and shall supply him with a cppy of the stated case ”.
The appellant only gave the Commissioner of Income Tax notice of thecase stated on March 21. that is, about five weeks after he had transmitted,the. case stated to the Supreme Court. A preliminary objection hastherefore been taken on behalf of the Commissioner of Income Tax thatthe Court should not adjudicate on the case stated. I think this preli-minary objection is well founded. The words “ at or before the time ”,though they might possibly give some latitude, certainly do not permitof a delay of some five weeks in complying with the provisions of thissub-section.
Various cases were cited to us which support the argument for theCommissioner of Income Tax. In Edwards v. Robertsa, the Court heldthat it had no jurisdiction to hear an appeal against a decision of justicesby way of a case stated under 20 & 21 Viet. c. 43 s. 2, unless the necessary-provisions of that section in regard to the giving of notice to the respondentof the appeal had been complied with. In another case (Aspinall v.Sutton“) the Court held in regard to the same section referred to inEdwards v. Roberts (supra) that the provisions of this section requiringthe case stated to be lodged at the Crown Office within three days wereperemptory and if not complied with the Court would not adjudicate onthe case stated. In ex parte Rosenthal—In, re Dickinson ‘ it was held in re-gard to the interpretation of a County Court rule requiring that thedeposit on an appeal from a County Court shall be paid “ at or before thetime of entering an appeal ”, that the neglect to comply with this provi-sion was not a formal defect or irregularity, and that when an appeal hadbeen entered on February 17, and the deposit had not been paid till March6, the appeal could not be heard. It will be noticed in this case thatBacon V. C. in the course of his judgment stated that there was no one' more reluctant than him to adhere too closely to the rules and orders ofthe Court where the failure to comply with them has been purely formaland technical. He however held that non-compliance with the ruleabove stated was not a formal or technical non-compliance with the rule
and that he was unable to hear the appeal.
1 (1881) L. R. 20, Ch. D. 315.
» (1891) 1 Q. B. D. 302.
» (1894) 2 Q. B. D. 349.* 20 Ch. D. 315.
Suppiaya Reddiar v. Mohamed.
459
This Court in regard to the provisions of the Civil Procedure Code, hasalways construed them strictly. It has also strictly/ construed the rulesapplicable in regard to leave to appeal to the Privy Council—seeWeerakoon Appuhamy v. Wijesinghe
In this case there has been a very considerable delay in the compliancewith the provisions of sectiop 74 (3). We have not been referred to anyprovisions in the Income Tax Ordinance which gives us any discretion inregard to a party’s non-compliance with the provisions in regard to a casestated. The provisions of this Ordinance in regard to procedure must, inmy opinion, be construed just as strictly as the provisions of the CivilProcedure Code, and that being so we cannot, in my opinion, hear the casethat has been stated.^
The respondent, the Commissioner of Income Tax, is entitled to costs.Keu.neman J.—I agree.
Appeal rejected.