Legal Services and Laws of Sri Lanka
SLR - 1986 Vol.1, Page No - 300
C.W. MACKIE & CO., LTD.
HUGH MOLAGODA, COMMISSIONER-GENERAL OF INLAND REVENUE AND OTHERS
S. SHARVANANDA, C.J., ATUKORALE, J. AND TAMBIAH, J.
S.C. APPLICATION No. 85/85,
SEPTEMBER 20, 1985 AND OCTOBER 1, 1985.
Business Turnover Tax - Fundamental Right to equality - Articles 12(1) and 126(4) of Constitution- Turnover Tax Act,No.69
of 1981 - Order of Minister of Finance and Planning published in Gazette Extraordinary No.247/11of1.6.1983-Excepted
articles - Is order of Minister retrospective? - Is refusal to refund B.T.T. discriminatory? - Equality.
The order of the Minister of Finance and Planning (Gazette ExtraordinaryNo.247/11of1.6.1983)makingcertainitems,
amongst them rubber, excepted articles for the purpose of levy of Business Turnover Tax is notretrospectiveinoperation.
Any undertaking given by the Commissioner-General of Inland Revenuetomakeadministrativearrangementsnottorecover
turnover tax from rubber dealers up to 31.12.1982 would be illegal.TheCommissioner-Generalisnotempoweredtogrant
exemption or waiver of such taxes which are legally due. There is no provision in the Turnover Tax Act, No.69of1981to
refund any tax paid in accordance with the law. The only instance when a refund canbemadeiswhenapersonhaspaid
turnover tax in excess. The excess can be refunded (s. 49).
In order to sustain the plea of discrimination based upon Article 12(1) a party will have tosatisfythecourtabouttwo
(1) that he has been treated differently from others,
(2) that he has been differently treated from persons similarly circumstanced without any reasonable basis.
Fundamental to this postulate of equal treatment is that it should be referable to the exercise of a valid right, foundedin
law in contradistinction to an illegal right which is illegal in law. The Article 12(1) does not require theauthoritiesto
act illegally in one case because theyhaveactedillegallyinothercases.TheConstitutiononlyguaranteesequal
protection of the law and not equal violation of the law.
The Court cannot issue directions to the Commissioner-General to deduct the amount paidbythepetitionerasB.T.Tfrom
future taxes because that would amount to giving directions to act contrary to the law.
Before relief on a just and equitable basiscanbegrantedunderArticle126(4)theapplicantmustfirstestablish
infringement of his fundamentalrighttoequality.Tosucceedthepetitionermustestablishdiscriminationinthe
performance of a lawful act.
Per Sharvananda, J. -
"Illegality and equity are not on speaking terms".
Cases referred to:
(1) Venkata Subbiah Setty v. Bangalore Municipality AIR 1968 Mysore 251.
(2) Ram Prasad v. Union of India AIR 1978 Rajasthan 131.
(3) Chief Commissioner v. Kitty Puri AIR 1973 Delhi 148,153.
(4) Narain Dass v. Improvement Trust AIR 1972 S.C. 865.
(5) Sioux City Bridge Company v. Dakota County, Nebraska (1923) 200 U.S. 441.
APPLICATION for alleged violation of the Fundamental Right of equality.
K. N. Choksy, P.C. with Ronald Perera for the petitioner.
Sarath Silva, D. S. C. with A. Kathirsan, S.C. for 1st to 3rd respondents.
November 1, 1985.
The petitioner is a Company carrying on business, inter alia, of a Rubber Dealer and Exporter.
After the enactment of the Turnover Tax Act, No. 69 of 1981 (herein referred to as the Act) on 12.11.81 andtheregulations
made thereunder, all local sales and transactions in rubber became liableforpaymentofBusinessTurnoverTax(herein
referred to as B.T.T.). Prior to that Business Turnover Tax was payable on such sales and transactions under Part 12ofthe
Finance Act, No. 11 of 1963.
The Petitioner states that it had paid a total sum of Rs.2,109,001.43 as B.T.T. foralllocalsalesandtransactionsof
rubber for the period 1.4.80 up to 31.12.82.
By Gazette Extraordinary No. 247/11 dated 1.6.1983 (P1) the Minister of Finance and Planning made an orderundersection8
of the Turnover Tax Act, making certain items, amongst them rubber, excepted articles for purposes of the said Act.
By letter dated 23.11.83, the petitioner's auditors wrote to the Assessor of the Turnover Tax, requestingarefundofthe
total sum of Rs. 2,109,001.43, which had been paid by the petitioner as Turnover Tax, on the basis that theaforesaidorder
made by the Minister of Finance under section 8 of the Business Turnover Tax Act, thatrubberbetreatedasanexcepted
article, had retrospective operation and the Turnover Tax under that Act should never have been levied in respectofrubber
and that consequently all Turnover Tax which had been paid, prior to the publication of the aforesaidGazetteExtraordinary
No. 247/11 dated 1.6.1983, should be refunded. By his letter dated 25th October,1984,theDeputyCommissioner,Unit2,
replied that the order making rubber an excepted article was not retrospective butappliedonlyfrom1stJune1983and
therefore the question of refund did not arise.
Thereafter the petitioner wrote letter dated 18.3.85 to the Commissioner-General of Inland Revenue enclosing (a)copyofa
letter dated 10.1.83 sent by the Sri Lanka (All Ceylon) Rubber Dealers' Association totheCommissioner-Generalofinland
Revenue and (marked P10A) (b) copy of a letter dated 24.1.83 sent by thethenCommissioner-GeneralofInlandRevenueto
Secretary, Sri Lanka (All Ceylon) Rubber Dealers' Association (marked P10B) and asked for a refund of theBusinessTurnover
Tax duly paid by it. P10B runs as follows:
"Department of Inland Revenue,
Inland Revenue Building,
24th January, 1983.
Sri Lanka (All Ceylon) Rubber Dealers' Association,
285, Grandpass Road,
Turnover Tax on Rubber
I refer to your letter of 10th January, 1983.
1. Administrative arrangements will be made not to recover any turnover tax on rubber from rubber dealers up to December 31,
I confirm the position set out in your letter of 10th January, 1983 relating to the passing down of therefundofturnover
tax made to Shippers.
2. The scheme of taxation of the plantation sector is being reviewed for the Budget 1983. Your representations will begiven
carefull consideration in formulating the scheme.
Sgd. J. A. F. Felix,
Commissioner-General of Inland Revenue.
The petitioner states that from the contents of the aforesaid letters P 10A & P 10B itwasclearthat:(a)on5.1.83a
deputation from the Sri Lanka Rubber Dealers' Association had met HisExcellencythePresidentandthemembersofthe
Cabinet Sub-Committee on Economic Development and urged the abolition oftheturnovertaxonrubberandafterafull
discussion "on your suggestion it was agreed that you will make administrative arrangements not to recover anyturnovertax
on rubber from the rubber dealers up to December 31, 1982," and (b) the then Commissioner-General ofInlandRevenueagreed
to make administrative arrangements not to recover any turnover taxfromrubberdealersuptoDecember31,1982.The
petitioner further states that it was and it is not a member of the Sri Lanka (All Ceylon) Rubber Dealers'Association,and
was unaware of the agreement until it wrote this letter dated 18.3.85 (P10)
The 1st respondent (the present Commissioner-GeneralofInlandRevenue)byletterdated20.3.83(P11)wrotetothe
petitioner stating that the petitioner had paid the turnover tax as it was legally due and as there was no provisioninthe
Turnover Tax Act for refunds as His Excellency the President had not ordered arefundofTurnoverTaxalreadypaid,no
refund of the tax already paid by the petitioner could be made. The 1st respondent further added:
"Your claim then can only be considered on an extra legal basis and I havethereforeforwardedyoursubmissionstogether
with my observations to the Secretary, Ministry of Finance, in December 1984. I have receivednodirectionsinregardto
this matter thereafter. In the circumstances, I regret, I am unable to grant you a refund as requested and wouldadviseyou
to pursue this matter with the Secretary, Ministry of Finance and Planning "
By letter dated 24.6.85 (P15) the Deputy Commissioner of Inland Revenue informed the petitioner thattheDeputySecretary,
Treasury had not sanctioned the refund. Though this letter was dated 24.6.85 it was received by the petitioner byregistered
post only on 11.7.85.
By its application dated 23rd July 1985, to this court, under Article 126 of theconstitutionthepetitionerstatesthat
B.T.T. had not been charged or recovered from the rubber dealers who aremembersoftheSriLanka(AllCeylon)Rubber
Dealers' Association up to 31.12.82 and that the petitioner had Paid a sum of Rs. 2,109,001.43, as B.T.T.onrubberupto
date and that in the circumstances,the1-3rdrespondents(namelyCommissioner-GeneralofInlandRevenue,Secretary,
Ministry of Finance and Planning, Deputy Secretary to the Treasury respectively) had wrongfully refused torefundthesaid
sum of money or to set it off against future, other taxes payable by the petitioner.
The petitioner complains that the denial of the refund of the turnover tax paid by it was mala fide and constitutesunlawful
discrimination and that the 1-3rd respondents have in refusing to refund the turnover tax paid by the petitionerwhilstnot
collecting or enforcing the payment of the turnover tax from other dealers in rubber, who are similarly placed and liableto
pay the said tax, acted in breach of the petitioner's constitutional right to equal treatment.Thepetitionergroundshis
application on the plea that there has been a violation of its fundamental rights of equal protection of thelawguaranteed
to it by Article 12 (1) of the Constitution.
The 1st respondent in his affidavit states by way of explanation of the aforesaid letter P 10A and P10B that-
"The Sri Lanka (All Ceylon) Rubber Dealers' Association had made representations thatcertaindealersinrubberhadnot
added the Turnover Tax to their local sales and as such encountered difficulty in making quarterly paymentsofsuchtaxes.
Therefore an administrative arrangement was made not to recover such taxes up to 31.12.82 under theprovisionsoftheAct
until this scheme of taxation of the plantation sector is reviewed in the Budget. The letter P10(B) is notanexemptionor
waiver of such taxes. The Commissioner-General of inland Revenue is not empowered under the Act to grant anysuchexemption
or waiver of taxes that are legally due."
The 1st respondent, whilst denying the allegation of mala fide and unlawful discrimination and violation of thepetitioner's
fundamental right of equality before the law and equal protection of the law further states -
(1) that the turnover tax in respect of local sales of rubber was subjecttoBusinessTurnoverTaxfortheperiodsin
respect of which the petitioner is seeking a refund... and the order P1 made by the Minister operates from thedateitwas
published in the Gazette and has not affected the legal liability to pay taxesinrespectoftheperiodpriortosuch
(2) that according to the records of the Department of Inland Revenuefortheperiod13.11.81to31.12.82,twenty-five
rubber dealers other than the petitioner have paid turnover tax on local sales of rubber
(3) that no refunds have been made to any rubber dealer in respect of Business Turnover Tax orTurnoverTaxlawfullypaid
for the period in respect of which the petitioner is claiming a refund
(4) that I am not empowered by law to refund such taxes that have been lawfully paid and thedecisionnottorefundsuch
taxes has been made bona fide in compliance with legal provisions and
(5) that action will be taken to recover Turnover Taxes that are payable on local sales of rubber fortheperiodpriorto
the publication of P1 from every person in default of such taxes."
Section 2 of the Turnover Tax Act provides that-
" subject to the other provisions of this Act there shall be charged for the period November 13, 1981 toDecember31,1981
and for every quarter commencing on or after January 1, 1982 from every person who-
(a) carries on any business in Sri Lanka a tax (hereinafter referred to as the "turnover tax") in respect oftheturnover
made by that person from that business ........... computed at such rate as the Minister may fix by orderpublishedinthe
Section 4(1) provides "the Minister may, if he is of opinion that it is essential for the economicprogressofSriLanka,
exempt by Order published in the Gazette, any business or such business, as may be person, from the turnover tax,"
Section 10 provides "the turnover tax in respect of any quarter shall be paid not later than the fifteenth day ofthemonth
following the end of that quarter. Any tax not so paid shall be deemed to be in default and the person by whomsuchtaxis
payable ......... shall be deemed to be a defaulter for the purposes of this Act."
Section 31 states that any turnover tax shall he a first charge on the assets of the defaulter.
Section 33(2) "where any turnover tax is in default, the Commissioner-General may issue a certificate totheG.A.,A.G.A.,
Fiscal, Dr. Fiscal or tax collector containing particulars of such tax and the name of the defaulter and the officer towhom
such certificate is issued shall be empowered to cause .... thetaxtoberecoveredfromthedefaulternamedinthe
certificate by seizure and sale of his movable property".
Section 33(4) "where any turnover tax is in default and theCommissioner-Generalisofopinionthatrecoverybymeans
provided in subsection 2 is impracticable or inexpedient, he may issue a certificate to a District Court .... containingthe
particulars of such tax and the name of the person by whom the tax is payable and the court shall thereupon direct a writof
execution to issue to the fiscal authorising and requiring him to seize and sell any property movableorimmovableofthe
Section 34 provides for "proceedings for recovery of turnover tax in default beforeaMagistratewheretheCommissioner-
General is of the opinion that the recovery by seizure and sale is impracticable or inexpedient."
Section 49 provides that "if it is proved to the satisfaction of the Commissioner-Generalbyclaimdulymadeinwriting
within three years after the end of a quarter that any person has paid turnover tax in excess of theamountwithwhichhe
was properly chargeable for that quarter, such person shall be entitled to have refunded the amount so paid in excess."
Section 56 provides that "the Commissioner-General, Inland Revenue, shall be in charge of the Administration of this Act,"
It is to be borne in mind that the only instance in which provision is made by the Act for a refund of any turnovertaxhad
been paid is when any person had paid turnover tax in excess of theamountwithwhichheisproperlychargeable(vide
section 49). There is no provision for refund of turnover tax under any other circumstances. Counsel for thepetitionerwas
unable to point to any provision of the Art which enables the Commissioner-General to make therefundofthesumofRs.
2,109,001.43 which the petitioner had duly paid in discharge of its statutory liability under the Act.
But Counsel states that the petitioner is not claiming under the Act. The powers of a public official like theCommissioner-
General of Inland Revenue are not unlimited. There are legal limits to his powershis powers are Spelt anddefinedbythe
Act, and he cannot act outside or in excess of the powers vested in him by the Act, hecannotexcercisethosepowersfor
extraneous purposes. When any question of refund of the turnover tax paid under the Act arises his power to make suchrefund
has to be looked for within the framework of the Act. As pointed out earlier, the only instance ofrefundprovidedforby
the Act is that referred to in section 49 of the Act, viz. turnover tax paid in excess.
It is not disputed that the sum of Rs.2,109,001.43 claimed by the petitioner does not representanyturnovertaxpaidin
excess of the amount with which he was properly chargeable. The said sum was what was lawfully due from itasturnovertax
for the period in question and was lawfully paid bythepetitionerinthedischargeofitslegalliability.Ifthe
petitioner's prayer is that the Commissioner-General of Inland Revenue should be directed by this court to make arefundof
this Rs 2,109,001 .43 paid by the petitioner as turnover tax on rubber up to 31.12.1982, we have tolookforjustification
outside the Act to make the refund. Counsel for petitioner invoked the jurisdiction of this court under Article126(4)of
the Constitution to make such directions as it may deem just andequitableinrespectofthepetitionpreferredunder
Article 126 (2) to warrant the refund set off against future taxes.
The power of this court to issue such directions stems from proof of the infringement of a fundamental right. it isonlyon
such an infringement that this court will have the power to grant such relief or make such directions asitmaydeemjust
and equitable in the circumstances. This preliminary fact has to be established by the petitioner to warranttheinvocation
of this equitable jurisdiction. In the instant case, the petitioner pleads breach of its right to equality asthebasisof
its application. Article 12 (1) of the Constitution provides "all persons are equal before the law and areentitledtothe
equal protection of the law." The essence of the right of equality guaranteedbyArticle12(1)andtheevilwhichthe
article seeks to guard against is the avoidance of designed and intentional hostile treatment or discrimination onthepart
of those entrusted with administering the law. In order to sustain the plea of discriminationbaseduponArticle12(1)a
party will have to satisfy the court about two things, namely (1) that he has been treated differently from others,and(2)
that he has been differently treated from persons similarly circumstanced without any reasonable basis.
But the equal treatment guaranteed by Article 12 is equal treatment in the performance of a lawful act. Via Article12,one
cannot seek the execution of any illegal or invalid act. Fundamental to this postulate of equal treatment is thatitshould
be referable to the exercise of a valid right, founded in law in contradistinction to an illegal right whichisinvalidin
law. I respectfully agree with what the court said in Venkata Subbiah Setty v. Bangalore Municipality (1) .
"Article 14 (corresponding to our Article 12) cannot be understood as requiring theauthoritiestoactillegallyinone
case, because they have acted illegally in other cases."
In Ram Prasad v. Union of India (2) the latter court quoted with approval the above statement of the law inVenkataSubbiah
Setty v. Bangalore Municipality (supra) and added-
"that the guarantee under Article 14 cannot be understood as requiring the authorities to act illegally in onecasebecause
they have acted illegally in other cases. No one can contend that a wrong must beextendedtohimaswellinorderto
satisfy the provisions of Article 14."
In Chief Commissioner v. Kitty Puri (3), the court observed:
"But the respondent No. 1 cannot contend that because the society and the government haveillegallyshownfavourtosome
person, then this court must compel them to commit another illegality to show favour to respondent No. 1inthesameway.
This is not the meaning of equality guaranteed by Article 14 of the Constitution."
The inequality complained of by this petitioner in this case is only an inequality in the matter ofillegaltreatment.The
Constitution only guarantees equal protection of the law and not equal violation of law.Oneillegalitydoesnotjustify
In the exercise of its powers under Article 126(4) of theConstitutionthiscourtcanissueadirectiontoapublic
authority or official commanding him to do his duty in accordance with the law. It cannot issue a direction toactcontrary
to the provisions of the law or to do something which in law, would be in excess of his powers.
In Narain Dass v. Improvement Trust (4), it was stated that while, administering section 56 of the PunjabTownImprovements
Act, there had been hostile discriminationagainsttheappellant,becauselandsunderorchardsbelongingtopersons
similarly placed had been exempted whereas the appellants had been refused exemption.Rejectingthecomplaintofunequal
treatment, the Supreme Court of India, said that-
"If the appellants had failed to bring their case within section 56 of the Act, then merelybecausesomeotherpartyhad
erroneously succeeded in getting his lands exempted ostensibly under thatsectionthatbyitselfwouldnotclothethe
appellant with a right to secure exemption for their lands. The rule of equality before the law or oftheequalprotection
of the laws under Article 14 could not be invoked in such a case."
Counsel for the petitioner submitted that this court is vested with power underArticle126(4)tograntsuchreliefof
making such directions as it may deem just and equitable in the circumstances and that if the circumstances disclosed bythe
petition exhibit inequality of treatment this court can grant relief even at the cost of breach of the law. Idonotagree
with this contention. Before we come to the grant of relief underArticle126(4)theinfringementoffundamentalright
should be first established. In this case the petitioner pleadsinfringementofthefundamentalrighttoequality.To
succeed in the plea the petitioner has to establish discrimination in the performanceofalawfulact.Thedoctrineof
equality is intended to advance justice according to law, by avoiding hostile discrimination.Justiceisnotadvancedif
breach of the law is to be countenanced in the process. As stated earlier Article 12 does not guaranteeequalviolationof
the law. The petitioner's argument involves the Commissioner-General transgressing the law, doing something in excess ofhis
powers. The making of the refund of Rs. 2,109,001.43 duly paid by the petitioner as turnover tax or setting offthisamount
against petitioner's future tax liability is not warranted by the provisions of the Act. TheCommissioner-Generaldoesnot
have the legal power to do either. Even though the Commission-General had unlawfully refrained from recoveringanyturnover
tax from other rubber dealers, the petitioner's contention involves calling upon the Commissioner-General tocommitanother
illegality in line with the other illegality. The rule of equality before the laworequalprotectionofthelawunder
Article 12(1) cannot be invoked in such circumstances. In the exercise of its jurisdictiontograntrelieforgivesuch
directions as this court may deem just and equitable, this court cannot lend its sanction or authority toanyillegalact.
Illegality and equity are not on speaking terms.
Counsel relied heavily on the American case of Sioux City Bridge Company v. Dakota County, Nebraska (5)insupportofhis
submission that the court can depart from the requirement of the statute to ensure equality oftreatment.Itwasheldin
that case that intentional and arbitrary assessment of the propertyofoneownerfortaxationatitstruevalue,in
accordance with the State Constitution and laws, while all other like property is systematically assessed muchlowerwasa
violation of the equal protection of the laws and that the owner aggrieved by the discrimination wasentitledtohavehis
assessment reduced to the common level, since "by no judicial proceeding can we compel reassessment forthegreatmassof
such property at its true value as the law requires." The court in that case, held that therightofthetax-payerwhose
property alone is taxed at 100% of its true value is to have his assessment reduced tothepercentageorthatvaluefor
which others are taxed, namely 55%, even though this was a departure from the requirement of the statute. The conclusionwas
based on the principle that where it is impossible to secure boththestandardofthetruevalue,andtheuniformity
equality required by law, the latter requirement is to be preferred as the just and ultimate purpose of thelaw.Thatcase
is distinguishable from the petitioner's case. Whilst the petitioner in this case is asking for a refund of the tax whichhe
has paid in terms of the law, in the Sioux's case (supra) the prayer was not for such a refund of tax alreadylawfullypaid
on the basis of full value, as required by the State Law, but to have the assessment reduced to the sameproportionofits
full value that other similar properties were assessed. The Supreme Court in that case determinedthefutureliabilityof
the appellant in keeping with the requirement of uniformity. The court stressed that it sanctionedthedeparturefromthe
requirements of statute only because it was impossible to secure both the standard of the true value and theuniformityand
equality required by law. The relevant statute law in that case required that there should beuniformityinthebasisof
assessment. It was regarded as manifestly unjust that the appellant's property should be assessed atitstruevaluewhile
other property in the district was assessed at 55% of its true value. I do not however agreewiththepropositionoflaw
accepted in that case that statute law can be disregarded or departed from, in order to satisfy the requirement ofequality.
The ratio decidendi of that case should be confined to the special facts of that case. The jurisdiction to grant suchrelief
or make such directions "as it may deem just and equitable intheCircumstances"callsfortheexerciseofdiscretion
judicially. It will not be a proper exercise of judicial discretion-and a court of law will not lend itsauthoritytosuch
exercise-if it will conduce to carrying into effect that which is prohibited bylaw.Thefirstdutyofacourtisto
administer justice according to law, the law enacted by Parliament.
The Commissioner-General's powers and duties in relation to B.T.T. are defined by the Act.TheActisexhaustiveofhis
powers and duties in relation to B.T.T. His statutory duty requires him torecovereveryrupeewhichmightbelawfully
eligible from each individual taxpayer as B.T.T. The Commissioner-General being a statutory body exercising statutorypowers
under statutory restrictions and conditions cannot arrogate to himself a power which the law has notendowedhimwith.He
cannot exercise a dispensing power which the Act has not invested him with. Section 56 of the ActplacestheCommissioner-
General in charge of the administration of the Act. Sections 31-39 of the Act provides themachineryfortherecoveryof
such tax in default. A statutory duty is cast on the Commissioner-General of putting the machinery inmotionwheneversuch
tax is in default and it is not for him to waive recovery of the tax in circumstances not permitted bytheAct.Itwould,
therefore, appear that when the formerCommissioner-Generalbyhisletterdated24thJanuary1983(P10(B))gavean
undertaking to the Sri Lanka (All Ceylon) Rubber Dealers Association that-
"Administrative arrangements will be made not to recover turnover tax from rubber dealers up to December 31, 1982".
He was usurping a power which he did not in law possess. TheActconferspowerontheCommissioner-Generaltorecover
default tax. The nature of the power is such that it is coupled with a duty. A mandatory duty iscastonhimtoexercise
that power for the benefit of the State, whenever the circumstances warrant such exercise. Itisultraviresforhimto
agree to renounce that power in circumstances not warranted bytheAct.Nojudicialcountenancecanbegiventothe
assumption of the Commissioner-General that it is a matter resting on his discretion whether the B.T.T. shouldberecovered
or not. The claim strikes at the fundamental relationship that exists between the legislature and the executive.Chargedas
he was with the administration of the Turnover Tax Act, it was his bounden duty to recover all B.T.T. indefault.Hecould
not fetter his future executive action by any agreement with a defaulting tax-payer and bind himself not torecovertaxin
default. He could not refuse to recover such tax. It was as far back as 1688 that in England the Bill of Rights provided -
(1) That the pretended power of suspending of lawsortheexecutionoflaws,bylegalauthoritywithoutconsentof
parliament is illegal.
(2) That the pretended power of dispensing with laws, or the execution of laws, by regal authority ........... is illegal.
When Parliament imposes B.T.T. it is the duty of the Commissioner-General to assess and levy it upon and from thosewhoare
liable in law.
This court, acting on constitutional principlescannotgivelegalrecognitiontotheunconstitutionalactionofthe
Commissioner-General in agreeing not to recover B.T.T. which the law mandated him torecover.Thepetitioner'scontention
involves this court lending its sanction to the illegal action of the Commissioner-General. Taxes are imposedbyParliament
and if a subject falls to be to such taxes, whether he should in fact be taxed or not is not a matter left to thediscretion
of the Executive. The courts cannot condone any attempt at frustration of the law bytheexecutive.Itisbasictothe
Constitution that the Executive should carry out the mandate of the Legislature.
The 1st respondent, the present Commissioner-General has, in his affidavit, stated that theletterP10(B),isnotan
exemption or waiver of such taxes and that the Commissioner-General of Inland Revenue isnotempoweredundertheActto
grant any such exemption or waiver of taxes that are legally due, and has assuredthatactionwillbetakentorecover
Turnover Taxes that are payable on local sales of rubber for the period prior to the publication of P1 from everypersonin
default of such taxes.
The petitioner's application fails and is dismissed with costs.
ATUKORALE, J. - I agree.
THAMBIAH, J. - I agree.