Parekh v. Commissioner of Income Tax Civ. App. 17-D-71; 28/1/72. Onyiuke J.

 

Parekh v. Commissioner of Income Tax Civ. App. 17-D-71; 28/1/72. Onyiuke J.

The appellant, an advocate, appealed against the assessments of Income Tax made upon him for the years 1963 to 1969. The Commissioner of Income Tax moved to have the appeal dismissed as null and void and not properly before the Court because the appellant had failed to satisfy the conditions precedent to the lodging of the appeal and was in breach of all the relevant sections relating to appeals under the Income Tax (Management) Act 1958. It was established that after receiving the assessment the appellant’s advocate wrote two letters to the Senior Investigation Officer of the Tax Department. The first was made within 30 days of the notice of assessment but was an intention to lodge a notice of objection; the second purported to be a notice of objection but was given more than 30 days after the notice of assessment. The judge framed the issues as follows: the question for determination is whether the letters amounted to a valid notice of objection for purposes of ss. 99(1) and 101(1) of  the enactment (Rev. Edn. 1970).

            Held: (1)”Section 99(1) provides as follows: ‘Any person who disputes an assessment made upon him under this Act, may by notice in writing to the Commissioner-General, object to the assessment; and no such notice shall be valid unless it states precisely the grounds of objection to the assessment and is received by the Commissioner-General within 30 days after the date of service of the notice of assessment. Provided that if the Commissioner-General is satisfied that owing to absence from the Partner States, sickness or other reasonable cause, the person objecting to the assessment was prevented from giving such notice within such period and there has been no unreasonable delay on his part, the Commissioner-General may, upon application by the person objecting, and after deposit by him with the  Commissioner-General of so much of tax as is due under the assessment under section 103, or such part thereof as the Commissioner-General may require, and the payment of any penalty due under section 110, admit any such notice after the expiry of such period and such admitted notice shall be a valid notice. The notice of assessment in this case was dated 3^rd March, 1971; Section 99 requires that a notice of objection to be valid should state precisely the grounds of objection to the assessment. The latter of the 7^th April was not a notice of objection. It was no more than an intention to lodge a notice of objection which is not the same thing as a notice of objection. The letter of the 3^rd May purports to be a notice of objection but was not, in my view, a valid notice within Section 99. Firstly, it was given out of time. Secondly, it did not set out the practice grounds of objection as required by Section 99. I hold therefore that the appellant has not given a valid notice of objection and could act in the absence of such notice validly lodge an appeal.”(2)”The appeal is also incompetent under Section 104 which provides that where no valid notice of objection to an assessment has been given the assessment as made “shall be final and conclusive for the purposes of this Act.” The matter may however be re-opened under the proviso to Section 99. Until this was done an appeal is incompetent.” (3)”I note also that the appellant had not even given a valid notice of appeal as required by Section 101. The failure to give such notice strikes at the very existence of an appeal. Northern Province Labour Utilization Board v. The Commissioner of Income Tax (1960) E.A.1015. Section 101 requires intending appellant to give a notice of appeal in writing to the Commissioner-General. No such notice has been given.”