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In The Matter Of The Income Tax Ordinance, 1943 V. In The Matter Of An Appeal By Wasif Mograbi Against The Decision Of The Deputy Commissioner Of Income Tax Dated The 29th May, 1946 (1947) LJR-WACA

In The Matter Of The Income Tax Ordinance, 1943 V. In The Matter Of An Appeal By Wasif Mograbi Against The Decision Of The Deputy Commissioner Of Income Tax Dated The 29th May, 1946 (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Income Tax—Service of Notices—Gold Coast Income Tax Ordinance, section 54.

Provided that a notice reaches a taxpayer, and there is evidence of that, it need not be served personally upon him by the Income Tax authorities.

If notice of objection to an assessment is not given within the time prescribed, and the time is not extended, the Supreme Court has no jurisdiction to entertain an appeal from the refusal of the Income Tax Commissioner to revise the assessment.

Case stated by the Judge of the Supreme Court of the Kumasi Division. Dalton, Crown Counsel, for the Deputy Commissioner of Income Tax. Asafu-Adjaye, for Wasif Mograbi.

The following judgment was delivered:

Harragin, C.J. This is a case stated from the Divisional Court held at Kumasi.

The learned Judge at Kumasi gave the following rulings in the matter of an appeal by Wasif Mograbi against the decision of the Deputy Commissioner of Income Tax dated the 29th May, 1946 :—

  1. I ruled to the effect decided in Hope v. Hope, 4 De G.M. & G. 342, set out at p. 62 of the Annual Practice 1943, namely:

” ‘ The object of all service was, of course, only to give notice to the party on whom it was made so that he might be aware of, and able to resist, that which was sought against him, and where that had been done; so that the Court might feel perfectly confident that service had reached him, everything had been done that could be required ‘.

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” The full Report of the case was not available at Kumasi.

  1. I held that on the 24th January there was service of the Notices of Assessments on the appellant through his agents, Messrs. Cassleton Elliott & Co. that by the 30th March, 1946 (the date of the interview with the respondent), the Notices were or had been in the appellant’s possession.
  2. Taking either of these dates I ruled that the appellant had not complied with section 54 (2) of the Ordinance by giving written notice of objection within the period after service prescribed, and that consequently the step requisite under the proviso to section 54 (4) had not been taken and the Court therefore had no jurisdiction to entertain an appeal from the respondent’s refusal to revise the assessment.
  3. I further held that the Court could not exercise a discretion in appellant’s favour under the proviso to section 56 (1) as section 54 (2) had not been complied with.

The questions submitted for the opinion of this Court are whether these rulings are correct or otherwise.

Counsel for the appellant argued at some length that because it is stated in the Ordinance that notices should be served personally the service of a notice through the agent of that person was ineffectual. We are in entire agreement with the

learned Judge that, provided the Court is satisfied that the notice did in fact
reach the appellant, it is an unimportant technicality as to whether it was actually
handed to the appellant by a bailiff or a postman or by the appellant’s own agent.

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With regard to the second question, it is a matter of fact and not of law as to whether the agent of the appellant handed him the notice on the 24th January or at some later date.

We are not of the opinion that the fact that the notice was served on an agent is sufficient proof that such notice was brought to the attention of the principal. It might well be that the agent has ceased to act for the principal. It is clearly set out in the Ordinance as to how notices should be served on taxpayers, and nowhere can we find any reference to the service of a notice on an agent being deemed to be service on the principal. This point is, however, of little interest in the present case as by the 25th of March, 1946, the appellant had obviously received the notice or knew of the contents of it as he was taking action in the matter.

It was next argued that as under section 54 (2) the Commissioner can extend the period within which a notice of objection should be rendered, he had by implication done this by a letter to the appellant written on the 12th June informing the appellant that he should appeal to the Court within fifteen days after the date of service of the letter dated the 29th May, 1946, refusing to amend the assessment. Clearly this letter could only refer to appeals under section 56 (1) of the Ordinance and had nothing whatever to do with the time limit imposed under section 54 (2) ; nor does it by its terms pretend to extend this period.

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We are therefore of the opinion that the learned Judge was correct when he found that the Court ” had no jurisdiction to entertain an appeal from the respondent’s refusal to revise the assessment “.

The fourth question, in our view, is beyond argument. Clearly the Court could not exercise a discretion which is given to it under section 56 (1) and which deals with appeals to the Supreme Court in order to give relief to an appellant who has failed to comply with the provisions of section 54 (2), particularly as in that very section the Commissioner himself is given the necessary discretion to extend the period.

For the above reasons we are of the opinion that the rulings (a)-(d) above given by the learned Judge are correct.

The Commissioner makes no application with regard to costs. Each side will bear its own costs.

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