ARGHYROU v. COMMISSIONER OF INCOME TAX [1965] GLR 588
15 September 1965 · BOISON J · ≈ 4 min read
[1965] SLR (HC) 11Other citation styles and permanent link
SLR is the Superlaw Reports citation series assigned by SuperLawGH. It is not an official law report. Suggested styles are a guide, so check your institution’s style guide.
DIVISION: HIGH COURT, ACCRA
DATE: 15 SEPTEMBER 1965
BEFORE: BOISON J.
NATURE OF PROCEEDINGS
APPLICATION for an order that the Commissioner of Income Tax be made to issue a tax clearance certificate to the applicant, and an appeal against tax assessments levied against the applicant. COUNSEL
Applicant in person. Quashie-Sam, Senior State Attorney, for the respondent. JUDGMENT OF BOISON J.
This is summons under Order 54, r.13 of the Supreme [High] Court (Civil Procedure) Rules, 1954,1 praying the court for an order or declaration or both that the Commissioner of Income Tax be made to issue an up to date unconditional tax clearance certificate. The summons also sought to appeal against the tax claims and assessments raised by the Commissioner of Income Tax against the applicant. The preliminary objections raised were: (a) that by virtue of Order 54, r.7 there have been no clear two days’ return of service of this motion as the motion was served on the respondent on 10 September 1965 and the return date was 13 September 1965; (b) that the subject-matter of this motion does not fall within any of the matters mentioned in r. 14 (1)-(10). “Matters” in r.14 (9) refers to matters already pending before the court; (c) that the remedy requiring the Commissioner of Income Tax to issue a tax clearance certificate is, in substance, akin to an order of mandamus and as such it is governed by Order 53 or Order 50; (d) that the appeal to the court from the decision of the Commissioner of Income Tax is inappropriate and premature as the Commissioner of Income Tax has not given his decision yet. The applicant’s objections were received by the Commissioner of Income Tax on 18 August 1965 and owing to the nature of the objections, the Commissioner of Income [p.590] of [1965] GLR 588 Tax requires reasonable time to give his decision. And that under section 58 of the Income Tax Ordinance, 1943,2 as substituted by section 9 of the Income Tax (Amendment) (No.2) Act, 1963,3 the Board of Appeal has not been constituted yet. The applicant’s argument was that these preliminary objections do not go to the merits or demerits of the summons and that in view of the urgency of the motion the hardship being caused to the applicant is great and the merits of the motion should be gone into. Moreover the Board of Appeal has not been constituted so that the appellant’s appeal cannot be sent before the board. In so far as (a) supra is concerned the urgency of the matter makes it reasonable and compelling for a motion served on 10 September 1965 to be heard on 13 September 1965 and thereby waiving the two days clear return of service. As regards (b) having regard to the various matters mentioned in subrules (1) to (10) (exclusive of subrule (9)) these matters are not necessarily matters pending before the court, it will be unreasonable and contrary to the ejusdem generis rule to limit subrule (9) to matters pending before the court. An income tax matter, as this, can therefore be dealt with under Order 54. In respect of (c) the first leg of the remedy sought is in effect an order compelling the Commissioner of Income Tax to do something—a legal duty and therefore the remedy is in the nature of the prerogative order of mandamus. The procedure adopted by the applicant is therefore not the proper procedure. Having regard to (d) whilst it is true that the Commissioner of Income Tax is not restricted to the time within which to give his decision on an objection, the objection in this case was received by the Commissioner of Income Tax on 18 August 1965—the substance or nature of the objection was not disclosed to the court, but a period of about four weeks (from 18 August 1965 to 13 September 1965) in these circumstances is not deemed to be unreasonable. The claims objected to were not disclosed (see paragraph 6) for the court to know if the amount exceeded £G200 or not. At any rate the Commissioner of Income Tax has not given his decision which will ground an appeal to this court if the appellant is dissatisfied or otherwise aggrieved by the said decision and if the amount exceeded £G200 or to the Board of Appeal if the amount is less than £G200: see section 9 of Act 197. An appeal cannot therefore lie to this court as there has been no decision by the Commissioner of Income Tax. As no decision has
[p.591] of [1965] GLR 588
been made by the Commissioner of Income Tax it seems immaterial whether the Board of Appeal has been constituted or not. This summons, for the reasons in (b) and (c) (supra) is not properly before this court and is accordingly dismissed. DECISION
Application dismissed.
A. K. F.
