Rajapakse V. Commisioner Of Income Tax

1934 Present: Dalton and Drieberg J J.

RAJAPAKSE v. COMMISSIONER OF INCOME TAX.

S. C. (50)-Income Tax.

    Income Tax-Deduction for expenses incurred-Advocate practising in Supreme Court-Claim -for travelling from residence to the Courts- Meaning of the term "place of business"-Ordinance No. 2 of 1932, s. 10 (a).

The expenses incurred by an advocate in travelling, from premises in which he resides and has his chambers, to the Supreme Court are not costs of travelling between his residence and place of business within the meaning of section 10 (o) of the Income Tax Ordinance.

THIS was a case stated for the opinion of the Supreme Court under the provisions of section 74 of the Income Tax Ordinance, 1932.

The appellant is an advocate residing at Rosmead place, Colombo, and practising before the Supreme Court at Hulftsdorp. In returning the profits from his profession he claimed certain deductions including rent of chambers in his house and the cost of travelling to and from chambers to the Supreme Court, sitting in its appellate capacity at Hulftsdorp. He was allowed a deduction in respect of his chambers, but was refused the deduction for the cost of travelling between his chambers and the Supreme Court. The Board of Review held that-the deduction claimed was the cost of travelling between residence and place of business within the meaning of section 10 (a) of the Income Tax Ordinance and could not be allowed.

H. V. Perera (with him K. S. Aiyer and M. M. I. Kariapper), for assessee, appellant.-It is submitted that an advocate's chambers are his place of business. A place of business connotes a fixed place where a fee is charged for the commencement of a duty. A great part of an advocate's work is done in chambers-consultations, preparation of cases, acceptance of fees, clerical work through his clerk.

If one considers the case of a proctor, it is hardly possible to say that a proctor comes to the Courts as his place of business. A proctor cannot appear in some Courts, e.g., Appeal Court. A chamber lawyer may come to the Courts at Hulftsdorp merely to consult authorities which he cannot find at home. A place of business is rather a place where one enters into a contract than a place where one seeks to execute or complete one's business.

Secondly, the profession of an advocate is neither a business nor an employment under section 10 (a). In a very broad sense the word business may be applied to a profession. A business implies something commercial. Business implies advertising, a professional man cannot do that. Employment presupposes an employer. In an employment wages are important. An advocate cannot offer his services to the public at large. His work is really honorary, for he cannot sue for fees. See Commissioner of Inland Revenue v. Maxe1[1 (1919) 1 K. B. 647. ] for the difference between business and profession.

J. E. M. Obeyesekere, Acting Deputy S.-G. (with him M. F. S. Pulle, C.C.), for the Income Tax Commissioner.-The finding of the Commissioner and of the Board of Review that the place where the appellant argues his cases is one of his places of business is a question of fact which should not be disturbed.

[DRIEBERG J.-If it is a finding of fact, why is this case stated ?]

It is a question of law, whether apart from the appellant's connection with them, the Courts at Hulftsdorp are a place of business. (Ushers Webster Brewery Ltd. v. Bruce 2[2 (1915) A. C. 433.]. An advocate may have more than one place of business. In the ordinary course the appellant comes to Hulftsdorp and argues his cases. An advocate interviews proctors, accepts retainers and does other legal work at Hulftsdorp. At stated times the appellant is available to his clients and proctors at Hulftsdorp. A person may have more than one place of business. The appellant's residence does not cease to be a residence merely because he uses one room in that

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