George Trading Ltd v The Commissioner Taxpayer Audit and Assessment Department (General Consumption Tax)

• Jurisdiction: Jamaica
• Judge: ANDERSON: J.
• Judgment Date: 27 August 2003
• Judgment citation (vLex): [2003] 8 JJC 2701
• Docket Number: REVENUE COURT APPEAL NO: 2 OF 2002
• Court: Revenue Court (Jamaica)
• Date: 27 August 2003

IN THE REVENUE COURT

REVENUE COURT APPEAL NO: 2 OF 2002

IN RE THE GENERAL CONSUMPTION TAX ACT

BETWEEN

GEORGE TRADING LIMITED

APPELLANT

AND

THE COMMISSIONER TAXPAYER AUDIT AND ASSESSMENT DEPARTMENT(GENERAL CONSUMPTION TAX)

RESPONDENT

CIVIL PROCEDURE - Summons - Extension of time for filing of an appeal in the Revenue Court - Tax Collection Act, s.46(1)

ANDERSON: J

1 This is an application by way of a summons to extend the time for the filing of an appeal in the Revenue Court, either against a decision of the Resident Magistrate for Kingston, or that of the Respondent Commissioner of Taxpayer Audit and Assessment, and was seeking an order in the following terms:-

"That the time limit for filing an appeal against the decision of:-

• (a) the learned Magistrate for the Parish of Kingston, Mr. Owen Parkin, made in the Resident Magistrate's Court holden at Kingston on the 29 ^th day of August 2001 whereby the court ordered that the applicant pay the sum of Twenty Two Million, Eight Hundred and Twenty-Eight Thousand, Two Hundred and Forty-Nine Dollars and Ninety-Six Cents ($22,828,249.96) to the Collector of Taxes;

• (b) the respondent dated the 5 ^th day of November 1998,

• be extended to 21 days from the date of this order."

2 The application arises out of an assessment by the then Commissioner of the General Consumption Tax (in these proceedings now represented by his successor the Commissioner of Taxpayer Audit & Assessment Department) raised on the 13 ^th July 1998, assessing the applicant to G.C.T. in the sum of Five Million, Six Hundred and Seventy Thousand, Five Hundred and Fifty-Seven Dollars ($5,672,557.00) for the period December 1994 to December 1997. On the 5 ^th November 1998, after the taxpayer had objected and discussions had taken place between the parties, the Commissioner issued a decision requiring the applicant to pay G.C.T. of Five Million Seven Thousand, Two Hundred and Sixty-Seven Dollars and Twenty-Three Cents ($5,007,267.23). On the 13 ^th March 2001, the applicant was served a summons to attend the Resident Magistrate's Court on the 28 ^th March, 2001 in respect of the aforesaid decision for taxes, interest and penalty in the total sum of Twenty Two Million, Eight Hundred and Twenty-Eight Thousand, Two Hundred and Forty-Nine Dollars, Ninety-Six Cents ($22,828,249.96). A trial date was fixed for 29 ^th August 2001. On that day, the applicant's counsel did not appear in court. According to the applicant in an affidavit filed on its behalf in these proceedings, discussions took place with the tax authorities. The "supplemental affidavit" of Rafaat Hadid states that the applicant company had been assured by its accountant, a Mr. O'Gara, that there were indications from the officers taking part in those discussions, that there would be an amicable resolution of the matter before the court. It was averred that as a consequence of that alleged possibility, counsel was "not properly retained in time to represent the Appellant at the time of the hearing". The learned Resident Magistrate made an order, described in the affidavit as an "ex-parte order," that the applicant pay the sum demanded in the complaint in six (6) equal monthly instalments. I pause here merely to say that it is not at all clear to me why an order made by the Magistrate in proceedings of which due notice had been given to the applicant, and at which he was fully entitled to be present and be represented and to lead evidence, should be referred to as an ex-parte order because the applicant failed to participate.

3 When the matter initially came before me on the 28 ^th day of February 2002, I made an Order granting an amendment to the summons, to state that "the time limited for filing an appeal against the order of the Resident Magistrate made on the 29 ^th day of August 2001 be extended to 21 days from the date of this order." At the same time, a proposed notice and grounds of appeal had also been filed to facilitate consideration of the summons to extend the time. The application was adjourned to be considered on March 19, 2002. The Respondent's attorney thereafter filed a notice on March 8, 2002, that the Respondent intended to take a preliminary point in limine, objecting to the hearing of the application to extend the time.

4 At the request of counsel for the Applicant, the hearing for March 19, 2002 was adjourned because it was inconvenient for counsel, and the matter next came before the Court on May 13, 2002 when the Respondent sought to make submissions on its preliminary objection. On application of the Applicant's attorney, that matter was again adjourned and the following order was made.

5 Ordered that:-

• 1. Hearing of the point in limine adjourned sine die.

• 2. Costs to the Respondent to be agreed or taxed.

• 3. Attorneys for the Appellant undertake to advise the Court within fourteen (14) days, whether the Appellant will be withdrawing or pursuing this appeal.

6 The attorneys for the Applicant did nothing further pursuant to that order. However, in May of 2003, another summons for the extension of time was filed on behalf of the applicant. Though it purported to be a "re-listed summons", it was in fact a new summons by a new attorney-at-law on behalf of the applicant. This summons was also accompanied by a new "proposed notice and grounds of appeal."

7 When this new summons came before me initially on the 28 ^th of May, 2003, counsel for the respondent again sought to take a preliminary point, in limine , and submitted that the court did not have the jurisdiction to hear the application. It was submitted that the basis on which the applicant's case had been before the Resident Magistrate's court was to be found in section 48 (1) of the General Consumption Tax Act. Under that section of the G.C.T. Act, the outstanding taxes, penalties and interest may be collected under the provisions of the Tax Collection Act, and under that Act, this is to be done "in a summary manner". The section of the GCT Act is in the following terms:

"The provisions of the Tax Collection Act concerning payment, collection and recovery of tax and the enforcement of payment thereof shall apply to tax imposed under this Act."

8 Section 46 (1) of the Tax Collection Act provides as follows:

All penalties and forfeitures imposed by this Act, or by the Licence and Registration Duties Act or the Property Tax Act, or by any other enactment in force for raising and imposing duties or taxes, may be recovered, and all taxes, duties, and arrears required to be paid to the Collector of Taxes, and not paid to him pursuant to the provisions of this Act, or other such enactments as aforesaid, as well as the penalty thereon, may, instead of the process of distress hereinbefore directed, also be recovered in a summary manner in the parish wherein such offence or default was committed, or the offender or defaulter resides; and, in case of non-payment, may be enforced by distress and sale of the offender's or defaulter's goods, or imprisonment not exceeding three months, unless such penalty, taxes, duties, arrears, and costs shall be sooner paid, and may be enforced under the provisions of any Statute in respect to summary proceedings, and the forms of any such Statute, or other Statutes, may be adapted to meet the requirements of this Act or other enactments as aforesaid; the taxes, duties, and arrears, and the surcharge, and any penalty attaching to such non-payment, may be included in, and recovered in one proceeding, notwithstanding any provision in any enactment relating to summary proceedings providing to the contrary.

9 The taxes exigible under the Act are therefore recoverable in summary proceedings before a Resident Magistrate, as provided for by the latter Act. The submission on behalf of the Respondent was that whenever the relevant statute, as in the case of the provision of the G.C.T. Act and the Tax Collection Act set out above, does not say that the Resident Magistrate is to exercise a special statutory summary jurisdiction but merely says that he is to exercise his jurisdiction "in a summary manner", the jurisdiction which is then conferred, is as to the Resident Magistrate in Petty Sessions. Indeed, the Summons served...