C. S. Hellel V. Assistant Commissioner Of Income Tax (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Income Tax Ordinance—Section 65: Offence offailure to pay tax—Section IQ:
Effect of acquittal—Who may prosecute—Criminal Procedure Ordinance, section 59.

Facts

Sections 65 and 76 of the Income Tax Ordinance read as follows:—
“65. (1) Subject to the provisions of sub-section (3), if any tax is not paid within the periods prescribed in section 63—

“(a) a sum equal to five per centum of the amount of the tax payable shall be added thereto, and the provisions of this Ordinance relating to the collection and recovery of tax shall apply to the collection and recovery of such sum;
“(b) the Commissioner shall serve a demand note upon the person assessed; and if payment is not made within one month from the date of the service of such demand note, the Commissioner may proceed to enforce payment as hereinafter provided;

“(c) a penalty imposed under this sub-section shall not be deemed to be part of the tax paid for the purpose of claiming relief under any of the provisions of this Ordinance.

“(2) Any person who without lawful justification or excuse, the proof whereof shall lie on the person charged, fails to pay the tax within the period of one month prescribed in paragraph (d) of sub-section (1), shall be guilty of an offence against this Ordinance.
“(3) The Commissioner may, for any good cause shown remit the whole or any part of the penalty due under sub-section (1).

“76. The institution of proceedings for, or the imposition of, a penalty, fine or term of imprisonment under this Ordinance shall not relieve any person from liability to payment of any tax for which he is or may become
liable.”

And section 59 of the Criminal Procedure Ordinance provides that:—
“59. (1) Any person may make a complaint against any other person alleged to have committed or to be committing an offence, unless it appears from the enactment on which the complaint is founded that any complaint for such offence shall be made only by a particular person or class of persons, in which case only the particular person or a person of the particular class may make such a complaint.

“(2) Notwithstanding anything to the contrary contained in any Ordinance a police officer may make a complaint in a case of assault even though the party aggrieved declines or refuses to make a complaint.” The appellant was charged as a defendant before the Magistrate on four counts under section 65 of the Income Tax Ordinance, for failing to pay assessments of tax made on him (including penalties) as follows:—
(1) £496 odd for 1941-42;
(2) £353 odd for 1942-43;
(3) £340 4s. Od. for 1943-44;
(4) £427 13s. 9d. for 1948-49.

Counts (1) and (2) were withdrawn and a verdict of acquittal was entered on them; counts (3) and (4) were amended, and the defendant was convicted thereon.

He failed in his appeal to the Supreme Court and appealed further. The assessments began with £473 for the year 1941-42. In 1947 the appellant offered £402 odd in full settlement for the years 1940 to 1945; he had paid £102 odd and he sent a cheque for £300.

He was sent a receipt for the £102 odd ” on account of Income Tax 1941-42 ”, and another receipt for £300 “ on account of Income Tax 1945-46 ”, the latter receipt bearing an indorsement on the back by the Assistant Commissioner of Income Tax in these terms: ” Receipt is for the years of assessment 1940-41,1941-42, 1943-44 and 1944-45 and 1945-46.”

For the appellant it was argued, in regard to this endorsement, that the tax of those years was settled: (the purport of the argument was that count 3 was wiped out). But he knew that his offer could not be accepted except by the Commissioner of Income Tax himself and that no such acceptance was made.

It was also argued for him that no part of the £402 odd paid by the appellant could be referred to the tax of 1941-42 or the tax of 1942-43; that £402 was more than the £340 odd, tax for 1943-44 (for which he was convicted on count 3) and he must be deemed to have paid that £340 odd; and that counts (1) and (2) relating to the years 1941-42 and 1942-43 having been withdrawn and a verdict of acquittal entered, no part of the £402 odd paid could be referred to those two years.

With special reference to count (4)—the year 1948-49—it was argued that the Assistant Commissioner of Income Tax was not competent to prosecute.

Held

(1) In view of section 76 of the Income Tax Ordinance an acquittal on a charge under section 65 for failure to pay does not operate as a discharge of the debt unless the acquittal was on account of payment—which was not the case in regard to the counts relating to the tax for 1941-42 and the tax for 1942-43.

(2) The receipt for £300 was on the face of it a receipt on account, and according to the endorsement it was in respect of the years 1940-41, 1941-42, 1943-44,1944-45, and 1945-46. The £300 plus the £102 odd paid earlier, making up £402 odd, did not discharge the tax for 1940-41 even, which was £473. There was failure to pay the tax and penalty for 1943-44 of which the appellant was convicted.

Held also: The Income Tax Ordinance does not say who may make complaint for an offence thereunder.

By virtue of section 59 of the Criminal Procedure Ordinance any person may make complaint.

Appeal by defendant in a criminal case from decision of Supreme Court dismissing his appeal from the Magistrate: No. 3688.

Appeal dismissed.