C v Comptroller of Income Tax

• Jurisdiction: Singapore
• Judge: M Buttrose J
• Judgment Date: 31 May 1967
• Neutral Citation: [1967] SGFC 13
• Docket Number: Civil Appeal No Y27 of 1967
• Date: 31 May 1967
• Year: 1967
• Published date: 19 September 2003
• Plaintiff Counsel: Graham Hill (Rodyk & Davidson)
• Citation: [1967] SGFC 13
• Defendant Counsel: Amarjit Singh Verick (Assistant Comptroller of Imcome Tax)
• Court: Federal Court (Singapore)
• Subject Matter: Administrative Law,Revenue Law,Whether Comptroller of Income Tax entitled to impose such condition,Condition precedent to making of refund imposed,Section 93(3) Income Tax Ordinance 1962 (No 15 of 1962),Mandamus,Income taxation,Taxpayer sought refund of excess tax paid,Whether mandamus appropriate remedy against Comptroller of Income Tax,Remedies

This was an appeal from a decision of Ambrose J dismissing a motion for an order of mandamusdirected to the Comptroller of Income Tax, Singapore, (hereinafter referred to as `the Comptroller`) compelling him to comply with the provisions of s 93(3) of the Income Tax Ordinance (hereinafter referred to as `the Ordinance`) by causing repayment to be made to one C (hereinafter referred to as `the taxpayer`) of the sum of $5,573.47 being income tax paid by the taxpayer in excess of the amount payable by him under the provisions of the Ordinance.

At the conclusion of the hearing we allowed the appeal and made an order of mandamuscompelling the Comptroller to comply with the provisions of s 93(3) of the Ordinance as set out above but since the matter raised a point of some practical interest and importance to taxpayers generally we intimated we would give our reasons in writing at a later date. I now proceed to do so.

The facts and circumstances which gave rise to these proceedings are these.

By notices of assessment and additional assessment issued under the provisions of the Ordinance by the Comptroller for the year of assessment 1965 the taxpayer was assessed to tax and the total amount of tax payable thereunder amounted to $7,729.08. The taxpayer then appealed to the Income Tax Board of Review (hereinafter called `the board`) pursuant to s 79 of the Ordinance but paid the total amount of the tax as he was required to do under s 86 of the Ordinance. The appeal was heard by the board on various dates in 1966 and 1967 and determined on 28 January 1967 when the board allowed the appeal and held that a sum of $19,800 which had been assessed by the Comptroller as income was in fact a capital receipt and directed that the assessments be reduced accordingly. The Comptroller had therefore, by virtue of the board`s decision, received from the taxpayer an overpayment of $5,573.47, a not inconsiderable sum seeing that the original assessment was $7,729.08.

It is necessary to examine the correspondence which ensued.

On the same day, ie 28 January 1967 the taxpayer`s solicitors wrote to the Comptroller asking for a re-computation of the amount of tax payable and requesting a cheque for the amount of tax refundable.

On 2 February 1967 the Comptroller being dissatisfied with the decision of the board filed a notice of appeal therefrom in the High Court.

On 8 February 1967 the taxpayer`s solicitors again wrote to the Comptroller asking him to reply to their letter of 28 January by 13 February.

On 13 February 1967 the Comptroller wrote to the taxpayer`s solicitors that he was making immediate arrangements to refund any tax paid in excess in accordance with the order of the board dated 28 January 1967. On the same day he also wrote another letter to the taxpayer`s solicitors that he had proceeded to amend the additional assessments of 22 and 28 October 1965 and enclosed the amended assessment. The Comptroller went on to say that as a result of these adjustments to the additional assessments for the year 1965 a refund was due to the taxpayer and this refund would be made during the course of that week on the taxpayer`s solicitors` undertaking to retain the refund in their client`s account until the outcome of the Comptroller`s appeal to the High Court.

On 15 February 1967 the taxpayer`s solicitors wrote to the Comptroller asking him to confirm the precise amount of the sum to be refunded. They added that they had no authority to give the required undertaking and that there was no statutory basis for requiring it and demanded an immediate refund.

Then follows some curious correspondence from which it appeared that the Comptroller was unable to arrive at the correct figure to be refunded until advised by the taxpayer`s solicitors. On 16 February 1967 the Comptroller thought it was $2,611.48. On 17 February the taxpayers solicitors informed it was $5,573.47. On 20 February 1967 the Comptroller suffered a further change of heart and thought it was $7,729.08. On 22 February 1967 the taxpayer`s solicitors pointed out that the Comptroller had still got the figure wrong and reiterated that it was $5,573.47. At the same time and, in my view, not unreasonably, they formally requested a refund of the amount of tax overpaid by 25 February.

Finally on 23 February 1967 the Comptroller agreed with the figure given by the taxpayer`s solicitors and confirmed that the refund due to the taxpayer amounted to $5,573.47.

On 24 February 1967 the Comptroller wrote to the taxpayer`s solicitors that he was proceeding to apply to the board for a further order that the tax repayable, namely, $5,573.47, should be retained by the Comptroller until the outcome of his appeal to the High Court was known. I can only describe this an astonishing misconception of the board`s powers and it elicited the short and not surprising reply that in the opinion of the taxpayer`s solicitors the board had no jurisdiction whatever to consider an application relating to payment of tax and that a writ would issue forthwith which it duly was.

On 2 March 1967 the Comptroller, not surprisingly, informed the taxpayer`s solicitors that he was withdrawing his application to the board.

The Comptroller then took the point that the writ issued on behalf of the taxpayer was not in accordance with the provisions of the Government Proceedings Ordinance 1956 as amended by the Government Proceedings (Amendment) Act 1966.

Correspondence on the subject followed between the taxpayer`s solicitors, the Attorney General and the Comptroller on the subject to which I need not refer with the result that the taxpayer found himself in the position of having, as a last resort, to proceed by way of motion for an order of mandamus as the Comptroller refused and still refuses to cause payment to be made forthwith to the taxpayer of the sum of $5,573.47 in accordance with the provisions of s 93 of the Ordinance.

That section insofar as is material for the present purpose provides as follows:

(1) If it is proved to the satisfaction of the Comptroller that any person for any year of assessment has paid tax, by deduction or otherwise, in excess of the amount payable under the provisions of this Ordinance, such person shall be entitled to have the amount so paid in excess refunded:

Provided that -

(a) every claim for repayment under this section shall be made within six years from the end of the year of assessment to which the claim relates;

(b) nothing...