1955 Present : K. D. de Silva, J.

J. A. BAHARAN, Petitioner, and D. G. OBEYSEKERA
(Assistant Commissioner of Income Tax), Respondent

S. C. 690 of 1954-Application for a Mandate in the nature of a
Writ of Mandamus

Income Tax Ordinance (Cap. 188)-Appeal against assessment -Notice of objection-Conditions which such notice must satisfy-Failure to furnish return of income-Requirements necessary then-Sections 64 (3), 69 (1) (2) (3), 80 (1) (3).

Where an assessee fails to state precisely his grounds of objection against the assessment and merely lodges " an emphatic protest ", such protest is not a notice of objection within the meaning of section 69 (1) of the Income Tax Ordinance. Nor is it within the power of the Commissioner to waive the requirements which are set out in section 69 (1) in regard to notice of objection.

Further, under the second proviso to section 69 (1) of the Income Tax Ordinance, if the assessment appealed against was made in the absence of a return of income, the return of income must be tendered within the period allowed for filing the notice of objection. Failure to tender the return of income would render the notice of objection invalid.

APPLICATION for a writ of mandamus.

S. Ambalavanar, with E. B. Vannitamby, for the petitioner.

J. W. Subasinghe, Crown Counsel, for the respondent.

Cur. adv. vult.

September 22, 1955. DE SILVA, J.-

The petitioner complains, firstly, that the respondent who is the Assistant Commissioner of Income Tax, Unit 3, wrongly refused to admit his appeals and make his order in terms of Section 69 (2) of the Income

Tax Ordinance (Cap. 188) and secondly, the respondent refused to consider his objections before issuing a Certificate under Section 80 (3). He therefore seeks to obtain from this Court a Mandate in the nature of a Writ of Mandamus directing the respondent (1) to admit the appeals and make his order in terms of Section 69 (3) or (2) to consider the objections, make his decision thereon, and issue a Certificate to the Magistrate's Court, Colombo South, in terms of Section 80 (3). The respondent opposes this application.

Although the petitioner originally made this application in respect of the years of assessment 1948/1949, 1949/1950, 1950/1951, 1951/1952 and 1952/1953 his Counsel, at the hearing, restricted the matter to the last mentioned 3 years of assessment.

The petitioner did not furnish returns of income in respect of these 3 years to the Commissioner of Income Tax. Accordingly, the Assessor in terms of Section 64 (3) estimated the petitioner's assessable income and assessed him accordingly, and notices of assessment dated 17th August, 1953, were sent by registered post to the petitioner to his address at No. 22, Gorakapola, Panadura. These notices of assessment called upon the petitioner to pay Rs. 1,585, Rs. 1,300 and Rs. 2,475 respectively. Section 69 (1) provides that any person aggrieved by the amount of assessment made under this Ordinance is entitled to appeal to the Commissioner against the assessment by giving notice of objection in writing within 21 days of the date of notice of the assessment. Section 63 (3)J enacts that any notice sent by post shall be deemed to have been served. on the day succeeding the day on which it would have been received in the ordinary course by post. So that these notices should be deemed to have been served on the petitioner on the 19th August, 1955. The petitioner did not appeal to the Commissioner within 21 days from that date. He however addressed the letter R1 dated 31st October, 1953,, to the Commissioner stating that he received the notices of assessment only two days earlier. He also in that letter objected to the assessments in the following terms :-

" I hereby lodge an emphatic protest at your assessment of my income for these years. Details of these particulars will be forwarded. to you shortly. "

That the petitioner received the no