Re Wong Wing Biu

HCMP001510/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 1510 OF 1985

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Coram: Mantell, J.

Date of hearing: 17th July, 1985.

Date of handing down of Judgment: 6th August, 1985.

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JUDGMENT

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1. This is an appeal by way of Case Stated in which the short question for the opinion of the court is whether a Board of Review, established pursuant to section 65 of the Inland Revenue Ordinance, has power to extend time for appealing an assessment to additional tax.

2. The facts are barely material. The appellant was assessed under section 82A of the Inland Revenue Ordinance for additional profits and salaries tax for various years between 1974 and 1981. The notice of assessment and the demand were sent to him and his accountant by registered post on 27th July 1984. The notice of assessment drew his attention to the provisions of section 82B which allow for an appeal' against an assessment to additional tax within one month of the notice. On 9th October 1984, solicitors for the appellant wrote asking for an extension of time in which to appeal on the ground that the appellant had been absent from Hong Kong and very ill. At the hearing on 13th March 1985, the Board held that it had no power to extend time.

3. It is agreed that the Board as a creature of the Ordinance has no inherent jurisdiction to enlarge time. If at all, it must come from some provision in the Inland Revenue Ordinance itself. The appellant argues that the power is expressly given by section 66(1A) which reads as follows :

"If the Board is satisfied that an appellant was prevented by illness or absence from the Colony or other reasonable cause from giving Notice of Appeal in accordance with subsection 1(a), the Board may extend for such period as it thinks fit the time within which notice of appeal may be given under subsection (1). This subsection should apply to an appeal relating to any assessment in respect of which notice of assessment is given on or other 1st April 1971.".

In particular, Mr. Ramanthan for the appellant places emphasis on the words "any assessment". The Board took the view that section 66 is only concerned with appeals which arise from the failure of the Commissioner to agree with the person assessed after valid objection and has no application to appeals under Part 14 of the Ordinance (Penalties and Off nces). Support for that view was to be found, so the Board considered in the fact that sections 66(2) and 66(3) are expressly adopted as procedural measures on an appeal against the assessment to additional tax whereas section 66(1A) is not.

4. Bearing in mind that section 66(1A) was brought in by amendment in 1971 and the incorporation of section 66(2) and section 66(3) came about two years earlier. I am not so sure as to how far the last mentioned matter is relevant. One could ascribe the omission to an oversight. In the event, however, the question is one of pure construction. Section 66 is, I agree, dealing with assessments to which there has been a valid objection under section 64. The use of the word "any" in section 66(1A) does not have the effect of broadening the scope of the section but merely identifies those assessments to which the sub-section applies, namely, those as to which notice has been given on or after 1st day, April 1971. Moreover, by section 2, the concern of Part 11 of the Ordinance (sections 64 to 70(B) inclusive) is tax other than additional tax. So my short answer to the short question is that the Board of Review was right in concluding as it did.

5. The appeal is dismissed with an order nisi for costs.

Representation:

R. Ramanathan (Ng & Shum) for Applicant.

I. Wingfield, Crown Counsel for Respondent.