Modern Variety Jamaica Ltd v Tax Administration Jamaica (TAJ)

• Jurisdiction: Jamaica
• Judge: Rattray, J.
• Judgment Date: 08 January 2019
• Court: Supreme Court (Jamaica)
• Docket Number: REVENUE COURT APPEAL NO. 2 OF 2016
• Date: 08 January 2019

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

REVENUE COURT APPEAL NO. 2 OF 2016

BETWEEN:

Modern Variety Jamaica Limited

Applicant/ Appellant

and

Tax Administration Jamaica (TAJ)

Respondent

IN CHAMBERS

Mrs. Yualande Christopher-Walker instructed by Yualande Christopher & Associates for the Applicant/Appellant

Mrs. Suesette Harriott-Rogers and Ms. Maxine Johnson for the Respondent

Revenue Appeal - Time within which to file appeal in the Revenue Court has expired — Notice of Application for extension of time — Factors the Court should consider in granting an extension of time — Whether extension of time to file appeal should be granted

Cor: Rattray, J.

1 The Applicant, Modern Variety Jamaica Limited, was assessed by the then Taxpayer Audit and Assessment Department (TAAD), now Tax Administration Jamaica (TAJ), for Income Tax for the year 2007, and found to have tax liabilities of Eleven Million Seven Hundred and Seventy-Seven Thousand Seven Hundred and Fifteen Dollars and Six Cents ($11,777,715.06). The Applicant was notified of the assessment on the 8 ^th March, 2010, and thereafter objected to the assessment by way of letter dated the 20 ^th August, 2010. Subsequently, an Objection Notice of Decision dated the 13 ^th December, 2011, was issued to the Applicant, which advised it that the audit assessment made by the TAAD was confirmed, and also advised the Applicant of its legal right to appeal to the Taxpayer Appeals Department (TAD), now the Revenue Appeals Division (RAD).

2 By way of letter dated the 5 ^th January, 2012, the Applicant appealed to the TAD. That appeal was heard on the 2 ^nd December, 2014, after which a Notice of Decision dated the 21 ^st May, 2015, was delivered to the Applicant on or about the 5 ^th June, 2015. The said Notice of Decision confirmed the Income Tax assessment made earlier by the TAAD, and also notified the Applicant that if it was dissatisfied with the decision of the Commissioner of the TAD, it had the right to a further appeal to the Revenue Court within thirty (30) days of receiving the Notice of Decision from the TAD.

3 The Applicant on receiving the Notice of Decision from the TAD, did not file an appeal in the Revenue Court within the stipulated thirty (30) day period. However, on the 21 ^st March, 2016, the Applicant filed the instant Notice of Application, seeking an extension of time within which to file an appeal in the Revenue Court. The Application was based on the following grounds: -

• a) The Applicant is dissatisfied with the decision of the Commissioner of the TAD;

• b) That pursuant to section 76(1) of the Income Tax Act, if the Applicant being dissatisfied with the said decision, it is entitled to appeal to the Revenue Court within thirty (30) days of receiving the notice or rules of Court;

• c) That relevant documentations that can be submitted into evidence are now available to the Applicant, it having just obtained them from its accountant. In particular, the Applicant's appeal will demonstrate that the taxes the Respondent imposed on the Applicant are excessive and without any evidential basis;

• d) That the decision made by the TAD is erroneous and impedes the viable operation of the Applicant. That further if the Applicant is not permitted to bring this appeal, it will not be given a Certificate of Compliance of the payment of its taxes, necessary for doing its business;

• e) Though the time for appeal has passed, there is no delay in seeking this extension which is being sought at the earliest possible time, the evidence of which is asserted in paragraph 7 of the Applicant's Affidavit in Support of this Application;

• f) That no prejudice will be caused to the Respondent by this appeal being heard.

4 In support of its Application, the Applicant relied on the following Affidavits: -

• a) The Affidavit in Support of Application for extension of time to appeal filed on the 21 ^st March, 2016;

• b) The Affidavit of Vanessa Lalasingh in Support of Application for extension of time to appeal filed on the 1 ^st July, 2016;

• c) The 2 ^nd Affidavit of Vinod Sharma in Support of Application for extension of time to appeal filed on the 13 ^th July, 2016;

• d) The 2 ^nd Affidavit of Vanessa Lalasingh in Support of Application for extension of time to appeal filed on the 19 ^th September, 2016;

• e) The Affidavit of Desmond Palmer filed on the 19 ^th September, 2016;

• f) The 3 ^rd Affidavit of Vanessa Lalasingh in Support of Application for extension of time to appeal filed on the 29 ^th September, 2016; and

• g) The 4 ^th Affidavit of Vanessa Lalasingh in Support of Application for extension of time to appeal filed on the 30 ^th September, 2016.

5 The Respondent in its reply relied on the following Affidavits: -

• (i) The Affidavit Opposing the Appellant's Notice of Application for extension of time to appeal filed on the 15 ^th June, 2016;

• (ii) The Affidavit in Response to the Appellant's Affidavit of Vanessa Lalasingh and 2 ^nd Affidavit of Vinod Sharma filed on the 5 ^th September, 2016; and

• (iii) The Affidavit of Maxine Johnson in Response to the Appellant's Affidavit of Desmond Palmer filed on the 23 ^rd September, 2016.

6 In an effort to assist the Court, the parties filed Skeleton Submissions as well as Authorities on which they intended to rely. These Submissions, Authorities and the respective Affidavits were examined and carefully considered by the Court and were of great assistance in coming to its decision in this matter.

7 Brooks JA in the case of The Attorney General of Jamaica, Western Regional Health Authority v Rashaka Brooks Jnr (A Minor) by Rashaka Brooks Snr (His father and next friend) [2013] JMCA Civ. 16, underscored that the relevant factors the Court should consider on an Application for an extension of time are those outlined in the case of Commissioner of Customs and Excise v Eastwood Care Homes (IIkeston) Ltd and Ors (All England Official Transcript (1997–2008) delivered 18 ^th January, 2000). In that case Lightman J stated at paragraph 8 that: -

“…The position, however, it seems to me, has been fundamentally changed, in this regard, as it has in so many areas, by the new rules laid down in the CPR which are a new procedural code. The overriding objective of the new rules is now set out in Pt 1, namely to enable the court to deal with cases justly, and there are set out thereafter a series of factors which are to be borne in mind in construing the rules, and exercising any power given by the rules. It seems to me that it is no longer sufficient to apply some rigid formula in deciding whether an extension is to be granted. The position today is that each application must be viewed by reference to the criterion of justice and in applying that criterion there are a number of other factors (some specified in the rules and some not) which must be taken into account. In particular, regard must be given, firstly, to the length of the delay; secondly, the explanation for the delay; thirdly, the prejudice occasioned by the delay to the other party; fourthly, the merits of the appeal; fifthly, the effect of the delay on public administration; sixthly, the importance of compliance with time limits, bearing in mind that they are there to be observed; seventhly, (in particular when prejudice is alleged) the resources of the parties…”

[Emphasis supplied]

8 Similarly, in the case of The Commissioner of Lands v Homeway Foods Limited and Stephanie Muir [2016] JMCA Civ. 21, the Court of Appeal again highlighted the principles to be considered on an Application for an extension of time. In that case McDonald-Bishop JA (Ag) (as she then was) at paragraph 44 outlined the principles as follows: -

“Some of the relevant considerations that govern the question of whether an extension of time should be given to a party in default have been laid down in several cases from this court. These principles have been distilled and outlined as follows:

• (i) Rules of court providing a timetable for the conduct of litigation must, prima facie, be obeyed.

• (ii) Where there has been non-compliance with a timetable, the court has a discretion to extend time. The court enjoys a wide and unfettered discretion under CAR, rule 1.7(2)(b) of the CAR to do so.

• (iii) The court, when asked to exercise its discretion under CAR, rule 1.7(2)(b), must be provided with sufficient material to enable it to make a sensible assessment of the merits of the application.

• (iv) If there is non-compliance (other than of a minimal kind), that is something which has to be explained away. Prima facie, if no excuse is offered, no indulgence should be granted.

• (v) In exercising its discretion, the court will have regard to such matters as:

  • (a) the length of the period of delay;

  • (b) the reasons or explanation put forward by the applicant for the delay;

  • (c) the merits of the appeal, that is to say, whether there is an arguable case for an appeal; and

  • (d) the degree of prejudice to the other party if time is extended.

• (vi) Notwithstanding the absence of a good reason for the delay, the court is not bound to reject an application for extension of time.

• (vii) The overriding principle is that justice is done”

[Emphasis supplied]

9 The question of the grant of an extension of time is a matter for the discretion of the Court. In exercising its discretion, the Court must have regard to the principles set out by McDonald-Bishop JA (Ag) in the earlier mentioned case of The Commissioner of Lands v Homeway Foods Limited, and the focus ought properly to be on the particular circumstances of each case. In addition, the Court must also be engaged in a balancing exercise with regards to the rights of the respective parties.

10 The first consideration for the Court is the length of the delay on the part of the Applicant. Its Counsel, Mrs. Christopher-Walker indicated to the Court that her client's Application for...