| 17/5/2012 |
HOME
FSS
Downloads
|
| Board of Special Commissioners - Cases |
| Case No. 29/67 |
Decided: 8 January, 1969 |
   |
|
Commissioner's discretionary powers; Board not competent to enquire into the decision; in case of doubt whether the Commissioner was aware of all the facts, case is to be referred back to the Board - article 17, now 46, Income Tax Act
|
The operative phrase of article 17 (providing as to whether loans to shareholders are to be deemed to be dividends) is made up of the words: "in the opinion of the Commissioner". This shows that the decision lies only with the Commissioner who is vested with absolute discretion.
As has been held by the Court of Appeal in several cases, the Board may not substitute its discretion for that of the Commissioner's decision, except with a view to ascertaining whether such discretion had been properly exercised in substance and in form, without the violation of any principle of natural justice.
When making his decision, the Commissioner might not have been aware of some evidence which came to light during its hearing. The Board held that the matter was to be referred back to the Commissioner with a view to ensuring that the Commissioner was aware of all the facts when exercising his discretionary power.
|
|
|
|
|