019-NLR-NLR-V-61-S.-I.-MENDIS-Petitioner-abd-COMMISSIONER-OF-INCOME-TAX-Respondent.pdf
SA2TSONI, J.—Mendis v. Commissioner of Income Tax
95
1959Present: Sansoni, J.
S. I. MENDIS, Petitioner, and COMMISSIONED, OE INCOME TAX,
Despondent
S. C. 302—Application for Revision in M. C. Colombo 49,703j A
Income tax—Recovery of tax in default—Right of aseeaew to tMsjrute correafruvis °fassessment—Income Tax Ordinance {Cap. 188), ss. 27 {Hi), 80 (I) (2) (3).
At the time a notice is issued under section 80 (1) of the Income Tax Ordinancefor the recovery of tax the stage has been passed when the assesses can disputethe correctness of an assessment. Relief in that respect is limited to applyingfor an adjournment under section 80 (2).
Application to revise an order of the Magistrate’s Court, Colombo.
K.Sivagurimathan, -with J. V. C. Nathaniel, for the Petitioner.
Mervyn Fernando, Crown Counsel, for the Despondent.
Cur. Ordv. vvli.
June 22, 1959. Sansoni, J.—
The petitioner applies for the revision of the order of the ChiefMagistrate, Colombo, fining her a sum of Ds. 37,458*20 and imposing adefault sentence of six months simple imprisonment.
The order was made at the conclusion of certain proceedings whichfollowed upon the issue of a certificate under section 80 (3) of the IncomeTax Ordinance, Cap. 188. According to that certificate the petitioneras executrix of the estate of the late Mr. V. S. Samynathan had madedefault in the payment of Ds. 37,458*20 being income tax due from her.On being summoned under section 80 (1) the petitioner appeared andmoved for an adjournment under section 80 (2) which was allowed.Thereafter a certificate under section 80 (3) was received confirming theamount of tax tc he recovered as Ds. 37,458*20.
The petitioner then ashed for time to show cause under section 27proviso (3) of the Ordinance, and the matter was fixed for inquiry. Atthe inquiry the petitioner’s counsel sought to show that she was not anexecutor within the meaning of section 2 of the Ordinance ; that she wasnot a defaulter within the meaning of section 80 ; and that even if she wasa defaulter, her liability was limited to the sum specified in section 27proviso (3). Grown Counsel who appeared for the Commissioner ofIncome Tax then raised a preliminary objection : he urged that thepetitioner could not show cause in respect of these matters once thecertificate under section 80 (3) was filed. The Magistrate upheld theobjection and made the order now under consideration.
96SANSO.NI, J.—Mendia v. Commissioner of Income Tax
At the hearing before me the petitioner’s counsel sought to raisethe same objections- He -urged that the petitioner was not an executoras defined in the Ordinance, because no letters of administration hadyet been issued to hen;and thateven-if she-ha^-^efaulted-in paying tax,her liability should be limited to the sum mentioned in section 27 proviso
. Crown Counsel submitted that the grounds which the petitionersought to put forward should have been put forward at an earlier stage,when her liability to tax was assessed, and that she should have hadlocnurso Co Clio pxovisiorus for appealing if she was dissatisfied with theassessment.
I think that Crown Counsel’s objection must be upheld. At the timea notice is issued under section 80 (1) the stage has been passed whenthe assessee can dispute the correctness of an assessment- Relief inthat respect is limited to applying for an adjournment under section 80
. A defaulter is not precluded from showing that the Magistrate hasno jurisdiction, because his last known place of business or residence doesnot fall within the local jurisdiction of the Magistrate; he may also showthat he has paid the tax due ; or that he is not a defaulter, in that he isnot the person assessed. But it is not open to hi-m to question thecorrectness of the amount specified in the certificate.
The petitioner’s counsel at the final stage of his reply drew my atten-tion to the judgment of H. N. G. Fernando J. in PusweUa v. Commissionerof Income Tax1. My brother there held that a defaulter showingcause was entitled to show that the default in payment was due to causesbeyond his control and that there was no lack of good faith on his partand that at the time when section 80 is invoked the defaulter has notthe means to make payment, and if these special circumstances are madeout a Magistrate would desist from imposing the penal sanction of im-prisonment on default of payment of the tax. It is not necessary inthis ease for me to express my views on this question, because it doesnot appear that the petitioner sought to show cause on any of thesegrounds; and I should like to reserve my opinion on the point.
The application is dismissed.
1 {1958) 60 N. L. B. 497.
Application dismissed.