| 21/5/2012 |
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| Board of Special Commissioners - Cases |
| Case No. 8a/85 |
Decided: 23 September, 1986 |
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Application of article 57A, Income Tax Act - now 36, Income Tax Management Act - may not be invoked where assessments are raised under article 5B(6)(d) - now article 8, Income Tax Act
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The Commissioner invoked article 57A(c) and asked the Board to summarily reject the appeal because appellant had failed to deliver, within thirty days of the first sitting, the records required to be kept by article 42.
The Board considered that the application of article 57A(b) depended on three conditions: (i) the assessment is to have been raised in accordance with article 52 (now article 30, ITMA); (ii) the dispute includes a dispute concerning article 5(1)(a) - now 4(1)(a); and (iii) failure by appellant to deliver to the Commissioner, within thirty days of the first sitting, the records required to be kept by article 42.
The only point that had to be considered was whether the assessment complained of had been raised in accordance with article 52(2)(b).
Appellant contended that the assessment in question had been made under article 5B(6)(a). The Commissioner had even indicated this article, in his refusal, as being the article under which the assessments had been made. Besides, article 5B(2)(d) excluded all other provisions of the Income Tax Act, with the sole exception of article 53.
The Commissioner replied that the assessment could have been made only under article 52(2)(b) or 52(3) because article 5B(6)(a) merely laid down the tax rate. All assessments made for the purposes of article 5B(6)(a) are, by their very nature, ex officio assessments and the Commissioner's powers to issue ex officio assessments are found only in articles 52(2)(a) or 52(3).
The Board held that article 52 is indeed the general empowering article but definitely not the only one. Article 5B(6)(d) provided that "notwithstanding any provision of this Act, other than section 53, the Commissioner may,... raise an assessment on the chargeable income referred to in paragraph (b) of this section and proceed for the collection of the tax due". This sub-article [5B(2)(d)] constitutes an empowering provision particular to article 5B, while other paragraphs [5B(2)(c) and 5B(6)(a)] establish the tax rates.
Besides, if one were to accept the Commissioner's view that assessments can be made only under sub-articles 52(2) or 52(3), then the words "where the assessment complained of has been raised by the Commissioner in accordance with the provisions of paragraph (b) of subsection (2), or subsection (3) of section 52" of article 57A would be superfluous.
An appeal was entered before the Court from this decision.
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