Commissioner of Inland Revenue v Ismail [1989] FJHC 54; HC Civil Action 459.1989 (29 June 1989)

IN THE HIGH COURT OF FIJI
AT SUVA

Civil Action 459 of 1989

THE COMMISSIONER OF INLAND REVENUE
Appellant

v

MOHAMMED ISMAIL s/o Rahatullah
Respondent

Judge: LM Jayaratne

Date of Judgment: 29 June 1989

Counsel: R. Hayhow for the Appellant
H.M. Patel for the Respondent

Statutory Prov: Income Tax S. 62

JUDGMENT

The Commissioner of Inland Revenue, as Plaintiff in this case has taken out writ against the Defendant to recover arrears of Income Tax and Late Payment of Penalty for the Income Tax years 1969, 1972 and 1974 to 1987 amounting to $62,618.46.

The defendant has file a Defence which challenges this amount and denies that any sum is owed by him to the Plaintiff by way of taxes.

In the month of April, 1990 the plaintiff has taken out summons invoking section 62(2) and 62(8) of the Income Tax Act Cap. 201 and High Court Rules Order 18 rule 18 on the ground that the defence.

1. discloses no reasonable defence

2. that it is frivolous and vexatious

3. it is an abuse of process

In the Statement of Defence the defendant does not deny the receipt of the notice of assessment although he qualifies it, by stating that the receipt of the assessment was by his accountant who has delayed to transmit them to him. If it was so, it would be tantamount to nothing other than administration lapse on the part of the accountant and the CIR is not to blame. He has sent them to the defendant.

There is no statutory limitation of time either to the assessment of a person's income nor is there a limit or curtailment or prohibition on time within which to inform a taxpayer of his assessment.

Section 62(2) and 62(8) stands as a total prohibition to the challenge of the assessment when he was not availed himself of the opportunity provided by section 62.

At this later stage, the court cannot be open to him as a Tax Court to discuss his wages and personal income and other related income and expense matters.

That being so, there is no impropriety in the invocation of Order 18 rule 18.

I hold therefore that the defence be struck out, and I give judgement for the plaintiff in a sum of $62,618.46 with costs taxed if not agreed.

L.M. Jayaratne
JUDGE

29/6/98