Nand v Commissioner of Inland Revenue [1995] FJHC 6; Haa0005j.1995b (30 March 1995)

Fiji Islands - Nand v Commissioner of Inland Revenue - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 5 OF 19pan>

Between:

SATYA NAND

t/a SATYA'S FURNITURE AND HARDWARE

Appellant

- and -

THE COMMISSIONER OF INLAND REVENUE

Respondent

Mr. A. Kohli for the Appellant

Mr. A. Bale for the Respondent

JUDGMENT

On 1st June 1994 the appellant was charged in the Magistrate's Cat Labasa with the followinlowing offence:-

Statement of Offence

FAILING TO DELIVER PARTICULARS AS REQUIRED BY THE COMMISSIONER OF I OF INLAND REVENUE CONTRARY TO REGULATION 21 OF THE INCOME TAX [EMPLOYMENT] REGULATIONS AND SECTION 93(2) OF THE INCOME TAX ACT CAP 201.

&nbspticulars oe Offence

SATYA NAND trading SATYA'S FURNITURE & HARDWARE did on or about 28TH FEBR FEBRUARY 1993 AT LABASA in the NORTHERN division and on other days between that date and 23 May 1994 fail to deliver to the Commissioner of Inland Revenue Form P4, Annual Summary of Emoluments paid and tax deducted in duplicate together with the triplicate copies of Salary and Wages Slips in respect of his employees for the year ended 31st December 1992 as demanded by the Commissioner by his letter POSTED to the said SATYA NAND on 23RD DECEMBER 1993 which failure the said SATYA NAND still continues.

After trial the learned Magistrate helt the prosecution had proved the charge against the appellapellant beyond reasonable doubt and found him guilty.

He was convicted, and on 2 December 1994 was sentenced to a fine of $1282 ($2 per each day for 642 days) and in default of payment of fine to be sentenced to nine (9) months' imprisonment.

The appellant haealed against conviction and sentence upon the following grng grounds:

1. Tha Learrial Magistrate erte erred in law and in fact in failifailing to directing his mind to the standard of proof and onus of proof red.

2. That the Learned Trial Magistrate erred in law and in fact mitting the affidavit of a of a potential witness in lieu of oral evidence.

3. That the Learned Trial Magistrate erred in law and in fact in decn deciding that requirements of service had been complied with.

4. That the sentence ed is harsh and excessive having regard to the circumstancetances of the case.

On ground I ohli referred the Court to the learned Magistrate's statement that "if the accused used is not the person liable to lodge the returns as requested he could show that easily" (page 27 of Record). Mr. Kohli shat "thot;that is not the law" but "that it is incumbent to serve on correct person". The pro says has to be proe proof d all reasonable doubt as in a criminal case. It is n is not one of case cases where the onus shifts. He referred to vardiscrepancies in the name and description of the appellant lant by reference to pages 11, 37 and 43 of Record.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On change of name he says that the same information ire as in all the documents ents except the registration form where it says "Satya Anand" whereas the charge says "Satya Nand". There is a &qommon them theme" and the discrepancy, if any, goes to form and not to substance (section 122(d) of Criminal Procedure Code). However, appellant was pt sent in Court on three ocns which shows he is the pehe person charged and he not having raised any objection to it before. Henot even give evidencep;ncep; After lodging the forms for seven years since 1985 he nohe now turns around and says that he is not the person in the charge.

On ground 2, Mr. Kohli says that the Respondent is relying on service by post under section 50(1) of the Income Tax Act. Even so, ys, "they;they must come and give oral evidence" and he "could have cross-examined". Referenc made by him to seto sections 44 and 50 of the Act which provide for modes of service. In the l section referencerence is to service by registered post.

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Ground 3 has already been covered.

Ground 4, he says that the sentence is harsh and excessive.

In rto ground 2, Mr. Bale says that by affidavit the Respondent establishes whether there has bhas been a compliance with the letter of demand. He argues that sinculationation 21 puts the onus on the employer (the appellant in this case) to lodge then the Respondent does not have to prove anything and the said affidavits are sufficient. In answer to a ion by the the Court he said that the Respondent does not have to send a reminder or demand.

On ground 3, he said that the appt was present in Court and he had previously lodged the fore form. He said that since they do not have to send a demand "that is why simply posted" and not by registered post. He further submits that there is no need to send any forr they are already with the employer (being for wages and sand salary). He refutes the argument that the appellant has been inctly charged.

On ground 4, Mr. Bale says that the moneys deducted from employees are trust moneys. The court has, as it states, exercised leniency in sentencing in the circumstances of this case.

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The appellant is charged under Regula21 of the Income Tax (Employment) Regulations and under secr section 93(2) of the Incomes Tax Act Cap. 201 (hereafter referred to as the "Act").

Regulation 21 reads as follows:

"21. On or b the last day of Feof February of each year next follofollowing the year in which tax was deducted from emoluments of employees, every employer shall deliver personally, or send by post, to the Commissioner a summary in duplicate made out in the appropriate form containing the following particulars:-

(a) ame adresd of t of the empe employer;

(b) the amount ofeall emolumeoluments paid to all employees dees during the year immediately preceding that for which the summary is, under the provisions of this regulation, required to be delivered or sent;

(c) &nnbsp;total amol amountax ntax deducted from all employmployees from their emoluments in accordance with the provisions of these Regulations; and

(d) the total t of basic tax nccounted foed for in accordance with the provisions of the Income Tax (Collection of Basic Tax Regulations on all emots ofoyeesan>

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Provided that, on the cessation of business byemployer, the Commissioner oner may require the employer to deliver or send the summary within such time as he may specify".

"form"quot; and lays down the fine to be imposed on conviction. It pro:

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Provided that it shall be a good and sufficient defence to any complaint brought under this subsection that any such failure was not due to the neglect or default of the defendant or of any person acting on his behalf."

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In this case the failure to deliver Summary of Emoluments after referred to as the "form") was in respect of the year ended 31 December 1992 despite the letter of advise dated 23rd December 1993 sent by ordinary post by the Commissioner to the appellant's address.

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To prove ite the prosecution tendered to Court two affidavits. One was froPENI SENITAUTAUAUTAU, administrative officer (page 37 of Record) and the other from LOPETI KAU TUKANA, Officer in charge PAYE (page 43 of Record). No oral evidence was ad and the prosecution restedested its case on the said affidavits.

The said PENI'S affidavit ithe effect that the form has not been filed to date and thed the other affidavit states that the document had been posted to the appellant's address.

The Record shows that Mr. Kohli had "no objection to the matter cned in the affidavits"quot;.

After submission of no case was ruled against the appella evidence was adduced by hiby him and that was his right.

As for ground I, I uphold Mr. Kohli'sments. This is a criminal case hed the proof has to b to be beyond all reasonable doubt. The b does not shift to thto the appellant. The said statement of thrnlearned Magistrate does give that impression despite the fact that the Magistrate has towthe end of his judgment stated that he finds the charge proe proved beyond all reasonable doubt.

Alt Mr. Bale says that onus is on the appellant to deliver the "form" under nder Regulation 21 and that the Commissioner does not have to send a 'notice' and yet he relies on s.50(1) of the Act which provides as follows:-

& "5uot;50. - (1) If the Commissioner, in order to enable him to make an assessment or for any other purpose, desires any information or additional information or a return from any person who has not made a n or plete return, he , he may, may, by registered letter or by personal service of a notice in writing, demand from such person such information, additional information or return, and such person shall deliver to the Commissioner such information, additional information or return within the period of time determined by the Commissioner in such registered letter or notice. For the purpf any proceediceedings taken under this Act, the facts necessary to establish compliance on the part of the Commissioner with thvisions of this section as well as default thereunder shall be sufficiently proved in any cany court of law by the affidavit of the Commissioner or any other responsible officer of the Department of Inland Revenue. Such afft shall have attacattached thereto as an exhibit a copy or duplicate of the said letter or notice."

It should be noted that s.50(1) talks of service by &qby "registered letter" or by "personal service" and not ordinary post as in this case. Furthermore the section dwals with "demand for additional information" or "return" and not "form" as in this case.

Particular reference was also made to s.44 (1) of tt; but this deals with retu return of Income and has nothing to do with prosecution under Regulation 21 and s.93(2). The requir there is that nhat notice should be sent by ordinary post.

In response to a question from the Mr. Bale did agree that sections 50 and 44 are not applicaplicable to this case and yet he goes ahead and argues that because of the wording of s.50(1) in regard to "proceedings taken under this Act" the Respondent is empowered to use the said affidavits.

I am of the firm belief that this part of section 50(1) cannot be used "fy proceedings under the Acte Act". It has particular referto e to s.50(1) and no other section. The learned Magistrate erned in law when he dealt with sections 44 and 50(1) in regard to service in his judgment (page 27 of Record).

For these reasons I find that the Respondent was not entitled to use the said affd affidavits to prove his case for certainly s.50(1) did not empower him to do so. Oral evidence shoave been been adduced to enable the appellant to cross-examine the witnesses.

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I therefore agree with Mr. Kohli in his submissions on grounds two and three. He fore succeeds on these hese grounds.

While arguing ground I, Mr. Kohli did go to great lengths ing out the differences in s in the various documents in regard to the name of the alleged employer. The name in S N 'B' is given as "SATYA ANAND F/N AJAYBIR" and the business is "A. SATYA'S FURNITURE".&nbspS N 'A' advise letter it is "Mr. Satya Nand T/A A. Satya's Furnitureiture and Hardware".

There is a marked difference in the name and it is absolutely necessary that the right person is before the Court. It is the duty of rosecutiecution to do that. Had evidence been adduced uced the matters in dispute in regard to identity and service of notice would have been ironed out.

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For the above reasons the appellant eds on the first three grounds of appeal. Hence I do I do not ho cono consider ground 4 which relates to sentence.

The conviction and sentence are therefore set aside.

The appeal is al and the fine if paid is to be refunded to the Appellant.

Judge

At Labspan>

30 March 1995

Haa0005j.95b