COMMISSIONER GENERAL OF INLAND REVENUE

COMMISSIONER GENERAL OF INLAND REVENUE

Vs.

FIRST MEDIA SOLUTION (PVT) LTD

COURT OF APPEAL
WICKRAMASINGHE, J.
SAMAYAWARDHENA,J.
CA/TAX/6/2016
TACNAT/019/2014

Tax Appeals Commission Act, No. 23 of 2011, sections 7, 11A-Case stated-Value Added Tax Act, No.14 of 2002, sections 60(1), 61- Electronic Transactions Act, No. 19 of 2006

The respondent taxpayer preferred an appeal to the Tax Appeals Commission (TAC) against the determination of the Commissioner General of Inland Revenue. The TAC, without going into the merits of the matter, allowed the appeal on the basis that the Notice of Assessment is not in compliance with the mandatory provisions of section 60(1) of the Value Added Tax (VAT)Act, No.14 of 2002, as amended, Inasmuch as the said Notice of Assessment does not bear the name or signature of

the officer who issued it, and that the said omission is incurable. At the instance of the Commissioner General, the TAC referred a case stated for the opinion of the Court of Appeal.

Held:

1. Although the Notice of Assessment does not bear the name or signature of the officer who issued it, there was no room for the respondent taxpayer to be misled about the item of tax in dispute and the name of the assessor who made the assessment. No prejudice has been caused to the respondent taxpayer by failure to mention the name of the assessor.

2. The Tax Appeals Commission has taken the view that the use of the word "shall" in section 60(1) makes compliance mandatory, and there is no valid assessment without a name or signature. The use of the expression "may" or "shall" in a statute is not decisive, and other relevant provisions need to be looked into to find out whether the character of the provision is mandatory or directory. When section 60 is read with section 61, it is clear that the word "shall" used in section 60(1) is not mandatory.

3. The defect is curable in terms of section 61 (1) of the VAT Act.

Cases referred to:

1. Elgitread Lanka (Pvt) Ltd v. Sino Tyres (Pvt) Ltd [2011] SLR 130 at 136
2. Ramalingam v. Thangarajah [1982] 2 Sri LR 693 at 702
3. Kamkaru Sevana v. Kingsly Perera (SC/HC/LN86/12, SCM of 17.05.2013)
4. Somawathi de Zoysa v. Jayasena Fernando [2005] 1 Sri LR 10 at 14
5. Ismail v. Commissioner of Inland Revenue [1981] 2 Sri LR 78 at 111
6. Ranaweera v. Ramachandran (1969) Vol Ill Sri Lanka Tax Cases 395

APPLICATION for an Opinion on a Case Stated by the Tax Appeals Commission.

Suranga Wimalasena, S.S.C., for the Appellant.

Johann Corera for the Respondent.

cur. adv. vult.

December 5, 2019

SAMAYAWARDHENA, J.

This is a case stated for the opinion of this Court under section 11A of the TaxAppeals Commission Act, No. 23 of 2011, as amended.

ln terms of section 7 of the TaxAppeals Commission Act, the respondent taxpayer preferred an appeal to the Tax Appeals Commission against the determination of the Commissioner General of Inland Revenue dated 10.11.2014.

The Tax Appeals Commission, by determination dated 13.11.2015, without going into the merits of the matter, allowed the appeal on the basis that the Notice of Assessment relevant to this matter is not in compliance with the mandatory provisions of section 60(1) of the Value Added Tax Act, No.14 of 2002, as amended, inasmuch as the said Notice of Assessment "does not bear the name of the Commissioner General, Deputy Commissioner or Assessor issuing it nor any name duly printed or signed thereon." The Tax Appeals Commission has also taken the view that "the omission is not a defect curable under section 61 of the VAT Act."

There is no dispute that the Notice of Assessment does not bear the name of the Commissioner General nor any name duly printed or signed thereon.

It is the submission of the learned Senior State Counsel for the Commissioner General of Inland Revenue that as the Notice of Assessment is a computer-generated document, under the Electronic Tran

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