137-NLR-NLR-V-55-P.-W.-MUNIWEERA-Appellant-and-COMMISSIONER-OF-STAMPS-Respondent.pdf
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SANSONI J.—Muniweera v. Commissioner of Stamps- r
1954Present: Sansoni J./.
P. W. MUNIWEEEA, Appellant, and COMMISSIONER OFSTAMPS, Respondent
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S. C. 1,545—M. G. Tangalle, 9,564
Stamp Ordinance (Cap. 189)—Recovery of duty, penalty, <Ssc. —Procedure—Rightof appeal—Sections 41 (1) (b), 50, 90.
A clerk in the Department of Income Tax, Estate Duty and Stamps ■madean application to a Magistrate under section 50 of the Stamp Ordinance forthe recovery of certain stamp duty due from the accused. At the foot of theapplication appeared the words “ I authorise this application ”, and beneaththose words was the signature of the Deputy Comrpissioner of Stamps. TheDeputy Commissioner recited under his signature that he was authorised bythe Commissioner of Stamps to act on his behalf in respect of section 50.That authority was filed in the record.
Held, that the clerk was not an officer authorised by the Commissioner ofStamps within the meaning of section 60 of the*Stamp Oi dlnancs.
Held further, (i) that no appeal lies from a Magistrate’s order made uponan application under section 50 of the Stamp Ordinance.
(ii) that a notice issued under section 41 (1) (6) of the Stamp Ordinancewithout the authority of either the Commissioner of Stamps or an officerduly authorised by him in writing is invalid and of no effect.
PPEAL from an order of the Magistrate’s Court, Tangalle.
A. G. de Silva, for the accused appellant.
Vincent T. Thamotheram, Crown Counsel, for the Attorney-Genera1..
Cur. adv. vult.
June 4, 1954. Sansoni J.—
On the 7th July, 1953, Mr. M. B. E. Peiris, clerk, Department of IncomeTax, Estate Duty and Stamps, applied to the Magistrate, Tangalle,to recover a sum of Rs. 58 being the amount of deficiency of StampDuty due under Part I Schedule A of the Stamp Ordinance (Cap. 189).He stated in his application that the respondent P. W. Muniweera hadomitted to pay this sum although he was requested to < do so by a noticedated 14/2/52, and subsequent reminders issued by the Commissionerof Stamps.
The application was made under section 50 of the Ordinance. Atits foot appear the words “ I authorise this application ” and underthose words Mr. L. G. Gunasekere, Deputy Commissioner of Stamps,has signed. Mr. Gunasekere recites under his signature that he was
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JSAJTSONI J.—Mttniuieera ». Commissioner of Stamps
authorised by 'Hie Commissioner of Stamps to act on his behalf in respectof section 50 ^f the Ordinance. That authority has been filed in therecord and it is dated 26th May, 1953.
The respondent was noticed by the Magistrate, he appeared in Court,and as he stated that he had cause to show against the application thematter was fixed for inquiry on 18/9/53. The respondent’s proctorraised two objections. The first was that the authorisation of Mr.Peiris to make the application was by the Deputy Commissioner. Thesecond was that the notice under section 41 (1) (6) served on the re-spondentJwas signed by one B. D. S. de Zilya who was not authorisedto issue such a notice. At that stage an authority in favour of Mr.
D.* S. de Zilva to act under section 41 and other sections of theOrdinance issued by the Commissioner of Stamps and dated 26th May,1953, was produced. The notice issued under section 41 (a) (b) wasdated 14/2/52. It is obvious therefore that if the authority of theCommissioner was necessary to enable Mr. de Zilva to issue a validnotice it was wanting in this case.
The learned Magistrate, however, forthwith made order that he wassatisfied that the authority^ issued was proper and that the applicationwas proper. ’ The respondent appealed from this Order but it is wellsettled that no appeal lies from such an Order made upon an applicationunder section 50. Learned Counsel for the appellant, however, askedme to act by way of revision, and in view of the importance of thematter and the irregularities to which he drew my attention, I decidedto accede to his request.
It is quite true that a Magistrate to whom an application is made,under section 50 is only asked to recover the duty which the respondenthad failed to pay. But, as Bertram C.J. pointed out in Gunawardenev. Ghmasekere 1: *
“ There are some things indeed which the Magistrate must consider ;one is whether the case is within his local jurisdiction; another iswhether the authorisation of the Commissioner of Stamps, which isa condition president to the exercise of his jurisdiction, has in factbeen obtained. Further, in my opinion, it may well be that if it werebrought to the Magistrate’s notice that a condition which the lawregards as fundamental to the whole proceeding of the Commissionerof Stampfe had not been fulfilled the Magistrate ought to stay his hand. ”
The learned Chief Justice in the same judgment drew attention to theabsence of any provision for an appeal against a notice issued undersection 41 (1) (6) of the Ordinance.
To deal now with the validity of the notice dated 14/2/52, the failureto comply with which is the basis of this application. "It is quite clearthat this notice was not issued either by the Commissioner of Stampsor by an officer authorised by him in writing to do so. I have no doubtthat an authority granted subsequent to the date of the notiee is of noeffect. For this reason alone this application made to the Magistrateshould have been disafipwed.
1 {1923) 1 Times of Ceylon, Law Reports, p. 90 at p. 92.
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Vincent v. Svmanasena
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Another point taken by the respondent’s counsel before me was thatMr. Peiris who made the application has not been shown f.o be an officerauthorised by the Commissioner of Stamps. Section 50 requires thatthe application be made “ by an officer authorised on this behalf by thewritten order of the Commissioner of Stamps ”. Section 90 definesthe Commissioner of Stamps as including “ any officer of his departmentauthorised by him in writing in respect of any particular matter orany provision of this Ordinance ”. No authority has been producedin favour of Mr. Peiris but he presumably relies on the authority signedat the foot of his application by Mr. Gunasekere which reads “ I'authorisethis application ”. There is a difference between the authorising ofan application and the authorising of an officer to make an application.It is the latter that is necessary under section 50, and not the former.Mr. Gunasekere’s authorisation is no authority in favour of Mr. Peirisbut only of the making of the application. It is not clear that whenMr. Gunasekere appended his signature to this application he broughthis mind to bear on the necessity for authorisation in favour of Mr.Peiris ; if he did, and was satisfied as to its necessity, he should have saidso in a way that leaves no room for doubt.
For this reason also, in my opinion, this application^should have beendisallowed.
therefore, set aside the Order of the learned Magistrate.
Order set aside.