ARGHYROU vs. COMMISSIONER OF INCOME TAX [1965]DLHC1779

Date	1965-09-15
Suit No.
Citation No.	[1965]DLHC1779

BOISON J.

APPLICANT IN PERSON.

QUASHIE-SAM SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1965]DLHC1779
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													<main id="main" class="content" style="min-height: 60rem" >ARGHYROU<o:p></o:p>&nbsp;vs. <o:p></o:p>COMMISSIONER OF INCOME TAX <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1965] GLR 588<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
15 SEPTEMBER 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APPLICANT IN PERSON.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

BOISON J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BOISON J.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>The
preliminary objections raised were:<o:p></o:p>(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;<o:p></o:p>(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;<o:p></o:p>(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;<o:p></o:p>(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 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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 unreasonab</main>