M. B. v. Commissioner General of Income Tax Misc. Civ. App. 27-D-70; 16/7/71;

M. B. v. Commissioner General of Income Tax Misc. Civ. App. 27-D-70; 16/7/71;

On failing to file a return of income for the year 1967, the taxpayer was issued with an estimated assessment by the Commissioner. Over five months after the issuing of the estimated assessment, the taxpayer filed an objection to the assessment. The Commissioner refused to accept the taxpayer’s notice of objection because it was submitted after the statutory period provided by s. 109(1) of the East African Income Tax (Management) Act. The taxpayer’s notice of objection because it was submitted after the statutory period provided by s. 109 (1) the East African Income Tax (Management) Act. The taxpayer appealed against the Commissioner’s refusal of his late notice of objection to the Local Committee and asked the Committee to revise his assessment.

The Local Committee dismissed his appeal. Against that decision this appeal was brought. It was submitted for the Commissioner that the appeal was incompetent because the decision of the Local Committee on an appeal against refusal to accept notice of objection is according to s. 109(2) final; that although an appeal to the court lay from the decision of the Local Committee refusing to revise an assessment, here the taxpayer was not appealing against the assessment as an appeal against an assessment would a only lie where a taxpayer has given a valid notice of objection to the assessment within 30 days of the assessment and here there was no valid notice of objection as it was time barred.

            Held: (1) [After setting out the provision of s. 109 East African Income Tax (Management) Act]. “With regard to the first leg of his submission, that is he appeal against the Commissioner’s rejection of the late objection, Mr. Lakha submitted that a Court should not find its jurisdiction ousted and no appeal lies to it except in most exceptional cases. I fully agree with Mr. Lakha’s submission and as I remarked in a case recently, a Court is always jealous of its jurisdiction and will not lightly deem it to have been ousted. The Legislature can and often does must the jurisdiction of a Court, unfortunately it must be added, sometimes too often. But for the Court to find that its jurisdiction has been ousted, the Legislature must so state in the most unequivocal and uncertain terms.” (2) “I have already set out section 109 of he Act and it is I think even Mr. Lakha would agree-abundantly clear beyond a peradventure that the Local Committee’s rejection of an appeal against the refusal of the Commissioner to accept a late objection is final and conclusive and no appeal lies therefrom.” (3) “With regard to the second leg of Mr. Lakha’s submission that the appeal was also against the assessment by the Commissioner, although ingenious, this submission is not only unsupported by the facts but even at variance with his own client’s conduct and against the law. In his notification to the Commissioner dated 6^th of March (appendix ‘D’) the appellant stated and I quote: “Please note that I intend to appeal to the Local committee against your decision to refuse my late objection.”  There is no mention in that notification of any appeal against the assessment. Likewise, in his Memorandum of appeal addressed to the Local Committee (appendix ‘E’) the appellant commences with: “I ….. the appellant above named, being aggrieved by the decision of the Commissioner of Income Tax, the Respondent, to refuse to accept my letter of objection, do hereby appeal against this decision on the following grounds:- There then follow his grounds and the Memorandum concludes:- There then follow his grounds and the Memorandum concludes: “With the above grounds in mind, I pray you to authorize the Respondent to revise my assessment on the basis of details shown in my return.” It is abundantly clear that all the appellant was asking the Local Committee to do was as stated in his last paragraph, to authorize the Commissioner to revise his assessment, again, not the slightest mention or even hint of an appeal to the Committee against the assessment.” (4) “As I think, sufficiently demonstrated, as the appellant was appealing only against the Commissioner’s refusal to accept his belated objection, it is therefore hardly likely that the

Local Committee would have dealt with the assessment. Apart from that on the appeal as laid, the Local Committee had no authority to deal with the assessment as such, for section 109, which has been set out above, expressly lays down that all the Local Committee can do on such appeal is, quotig the concluding words of the section; “and the local committee hearing such appeal may confirm the decision of the Commissioner or may direct that such notice shall be treated as a valid notice of objection.” The Committee therefore on the appeal before it could not, even if it had been so minded, have dealt with, and ruled on, the assessment.” (5) Appeal dismissed.