Issac Simbakavu v. R. Crim. App. 170-D-71; 20/10/71; Onyiuke J.

Issac Simbakavu v. R. Crim. App. 170-D-71; 20/10/71; Onyiuke J.

The appellant was convicted on two counts of (a) evasion of person tax c/s 37 (1) (a), (b) and (c) of the Personal tax Act and (b) making a false statement with intent to evade Personal tax c/s 37(1) (b) of the Personal Tax Act. The appellant, who did not understand English and could hardly read Swahili asked someone to complete his personal tax form, which was in English,. He stated his net profit from his bar for the year 1969 to be 500/-. The chief witness for the prosecution admitted that the form was urgently required and he did not give the appellant sufficient time to complete the form. He also admitted that he did not know whether the appellant made a gross profit on beer purchased from Tanzania Breweries of Shs. 18, 859/10. The appellant was ordered to pay Shs. 1,800/- personal tax.

Held: (1) [Under the provisions of section 6(2) of the Personal Tax Act] the appellant was entitled to 14 days to fill in the form ………Under pressure from P. w. 1 the appellant did what he could without supplying all the details required by the Act. The prosecution now seeks to prove the figure wrong by proving the appellant’s gross income without taking into consideration the allowable deductions. This cannot amount to proof that the figure given by the appellant was false and it was for the prosecution to prove it ……… under section 6(5) of the act a collector after a return of form T. F. N. 172 can require a person to attend before him and to produce all books, documents or other papers whatsoever relating to his income, with

 a view to determining the extent of his liability for tax. Without giving the appellant the statutory period to which he was entitled and without taking any trouble to check on the correctness of the figures submitted by the appellant, the collector charged the appellant to court.”  (2) “The …….. question is whether the magistrate had power to make the order [for payment of Shs. 1,800/=]. Section 176 of the Criminal Procedure Code deals with award of compensation against an accused person. This section, in my view may be appropriate where the tax has been properly assessed ……… and is in the nature of a liquidated amount due from an accused person ………. There is no evidence that an assessment has been made under section 6 or that the assessment has been served on the appellant under section 7”. (3) Appeal allowed.