Jayantilal D. Desai v. The Commissioner General for Income Tax, Misc. Civ. App. 2-Tanga-71, 13/6/72, Bramble, J.

Jayantilal D. Desai v. The Commissioner General for Income Tax, Misc. Civ. App. 2-Tanga-71, 13/6/72, Bramble, J.

The appellant is a doctor employed with Cargo Handling Service and also carrying on private practice. He also carried on a money lending business. In his return for 1967 he claimed as an allowable deduction from income (a) expenses incurred in scientific and medical research and (b) bad debts in the money-lending business. The agreed issues were whether the appeal was time barred and, if not, whether the expenses for scientific and medical research and the bad debts as alleged by the appellant were deduct able.

            Held: (1) “It was conceded by the appellant that the last date for presentation of the appeal was the 14^th January, 1971. The record shows that it was filed on the 18th January, 1971. Rule 6 of the income Tax (Appeal to the Tanganyika High Court) Rules 1955 provides that: “Where a memorandum of appeal is lodged the Registrar shall than cause to be endorsed thereon the date of presentation and the appeal shall be entered in the register of appeals in accordance with the provisions of Order 41, rule 9 of the Code of Civil Procedure as applied to Tanganyika.” The endorsement on the memorandum of appeal in this case is “filed on 18^th January, 1971” and this is the only endorsement. The order referred to above was under the Indian Civil Procedure Code. Order 41 rule 9 under the code is now Order 39 rule 9 of the Tanzania Civil Procedure code which is now in force and states: “Where a memorandum of appeal is admitted the Court or proper officer shall endorse thereon the date of presentation and shall register the appeal in a book to be kept for that purpose.” As far as the record is concerned it is a question of whether the date endorsed on the memorandum of appeal is the date of presentation since the word used is “filed” and not “presented”. In the first place the endorsement

Is an official act and the maxim “omnia praesumuntur rite esse act” applies. It is the only official endorsement and it must be presumed to have been properly done. In the second place the term “filed” and “presented” seem to be loosely interchangeable. Indeed in the 3^rd edition of Stroud’s Judicial Dictionary a document is “filed” when delivered to the proper officer to be filed. In Rustomji’s Fourth Edition of the Law of Limitation, page 31, it is stated that “Limitation is checked only when the plaint is actually presented in the proper court and not when, by mistake or design, it was filed in an incompetent Court.” Here “filed” and “presented” are used in the same sense. I hold, therefore, that the endorsement on the memorandum of appeal shows the date of presentation.” (2) “An advocate in the firm which presented the appeal swore to an affidavit to the effect that the relevant documents were presented for filing on the 11^th January, 1971, and the fees were paid by a cheque of the same date; that the appeal was not filed and entered in the appropriate register until the 18th January, 1971, as evidenced by a court receipt of even date; that the date of presentation would be deemed to be the date of filing and that  it is a common practice that in the particular registry papers are actually filed some days after presentation. The affidavit ended by stating; “That what is stated above is true to the best of my knowledge, information and belief.” Mr. Ferro for the respondent submitted that the affidavit could not b e acted upon since the deponent did not state what facts were within his own knowledge and observation and which were a result of information given to him by someone. The leading case on this point is Standard Goods Corporation Ltd. v. Harakchand Nather & Co., (1950) 17E.A.C.A. 99. In that case an application was made for attachment before that “the facts stated herein were within the knowledge of the deponent.’ Paragraph 7 was “what is stated above is true and correct to the best of my knowledge and information. The judgment states in part: “As regards paragraph 2, 1 would observe that facts can be within a person’s knowledge in two ways (1) by his own physical observation, or (2) by information given to him by someone else. It is clear that reading paragraphs 2 and 7 of the affidavit together, the deponent was stating facts without stating which were from his own observation and which from information. An affidavit of that kind ought never to be accepted by a court as justifying an order based on the so called facts.” The principle has been followed in a line of cases and I hold that the affidavit in the instant case cannot be acted upon and the result is that the appeal is time-barred. “(3) “The next issue is whether the sum of Shs. 3608/= claimed for scientific and medical research is an allowable deduction.  The appellant said that he was industrial Medical Officer for the East African Cargo Handling Services between 1963 and 1969; he became interested in the hazards and medical problems of dock workers and he decided to do a survey and research in that field …… Deductions were allowable to a taxi-prayer for expenditure on scientific research incurred for the purpose of a trade carried on by him. The question is whether the appellant was carrying on a trade. He was a

Medical practitioner and was carrying on a profession ………… I hold therefore that the appellant was not carrying on a trade for the purposes of the Act.” [Referring to the definition of “profession” in Halsbury’s Laws of England, 3^rd ed., Vol. 20, p. 243 and definition of “trade” in the Income Tax Act. (4) It was conceded that the appellant carried on a money lending business. It was shown in cross-examination that a few loans were made without interest but not the specific items. These latter were real business transactions so it cannot be said that the debts were not trading debts. I would therefore, hold that the taxable income should have been reduced by the sum of Shs. 12,600/=.” (5) “The position is that since I have held that the appeal is time-barred I must dismiss it with costs to be taxed and I so order.”