| 21/5/2012 |
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| Board of Special Commissioners - Cases |
| Case No. 4/85 |
Decided: 4 June, 1986 |
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Application of article 57A(b), Income Tax Act, now 36(b), Income Tax Management Act; that an assessment has been made under article 52 (now article 30, ITMA) is a fact that has to be proved; article 52 is not the only article under which assessments are made: they can be made also under article 53 or 65(2)(b) - now 30, 31, and 46(2)(b) Income Tax Management Act
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The Commissioner invoked article 57A(c) and asked the Board to summarily reject the appeal since: (i) the assessment complained of had been raised in accordance with article 52; (ii) the dispute included a dispute concerning article 5(1)(a); and (iii) appellant had failed to deliver to the Commissioner, within thirty days of the first sitting, the records required to be kept by article 42.
The Board considered the written submissions made by the Commissioner and requested by the Board to prove that the assessments in question had been issued under article 52(2)(b). The Board held that the Commissioner had given a meaning to the Board decision in case no. 17/69 and to the wording of the law that found no basis in the decision or the law itself.
The Commissioner had placed great emphasis on whether the assessments were "raised in accordance with the provisions of" found in article 57A(b). The Commissioner contended that although various articles empowered to make assessments, all assessments - including those complained of - are issued under article 52(2)(b).
The Board referred to BSC case nos. 17/69, 15/84 and 20/84 where it had been decided that assessments were not necessarily made under article 52. Indeed additional assessments could be raised under article 53, while other assessments could be raised under article 65(2)(b).
The Board agreed that an assessment is not rendered invalid by the mere fact that the Commissioner does not indicate under which article it had been made. Nevertheless where he does not so indicate, he would be running the risk of being incapable of proving that the assessment was raised in terms of 52(2)(b).
The Board agreed also that the Commissioner could make assessments in terms of multiple articles of the law, however it had not been proved that 52(2)(b) was actually one of the articles under which the assessments in question were issued.
An appeal was entered before the Court from this decision.
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