Patwa v Regina (Criminal Appeal No. 436 of 1953) [1953] EACA 43 (1 January 1953)

## APPELLATE CRIMINAL

Before HEARNE, C. J. and RUDD, J.

## SAIFUDIN TAHERALI PATWA, Appellant

## REGINA, Respondent

#### Criminal Appeal No. 436 of 1953

Criminal Law—East African Income Tax (Management) Act, 1952—Section 89 (b)—Failing to attend upon Commissioner of Income Tax in answer to a notice issued under section 61 (1)—Notice in conditional and not in express and unambiguous terms—Whether taxpayer punishable.

The appellant received a notice from the Regional Commissioner of Income Tax, Nairobi, which concluded with a formal notice purporting to be made under section 61 (2) of the East African Income Tax (Management) Act, 1952, as follows: "I now give you formal notice... that unless I receive a satisfactory<br>reply to my letter on or before 1st March, 1953, I require you to attend at this office ... at 2.30 p.m. on Tuesday, 2nd March, 1953, for the purpose of answering the queries raised in my letter dated 25th September, 1952..." The appellant did not attend and was charged with failing to attend *contra* section 89 (b) of the Act. The accused showed cause, at his trial that he had received a letter from the Regional Commissioner dated 20th January, 1953, and he had replied to it. He had received no acknowledgment of this letter and assumed that it was considered satisfactory. He did not attend, therefore, as conditionally required to do since he considered the conditions satisfied. The accused was convicted and fined. The accused appealed.

Held (21-10-53).—Section 61 (2) clearly contemplates that the notice issued should be in express, unambiguous and unconditional terms so that a taxpayer may know exactly what is required of him. If the notice is not in such terms the taxpayer is not punishable under section 89 (b). The notice issued to the appellant not being in the terms required by section 61 (2) and conditional he had not committed an offence. Appeal allowed.

# Couldrey for the appellant.

## Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted of an offence *contra* section 61 (2) of the East African Income Tax (Management) Act and was sentenced under section 89 (b) to a fine of Sh. 105. Section 89 (b) enacts that "Every person who without sufficient cause fails to attend in answer to a notice issued to him under this Act... shall be guilty of an offence against this Act..." A letter dated 20th January, 1953, was addressed to the appellant by the Regional Commissioner. In this letter it was stated that several letters had been written to the appellant's accountants, Messrs. Harrison and Partners, raising queries on the appellant's accounts and that the accountants "would appear to have written to the appellant" with reference to the appellant's accounts. The letter then concluded with a formal notice which purports to have been given under section 61 (2). It reads as follows: "I now give you formal notice... that unless I receive a satisfactory reply to my letter on or before 1st March, 1953, I require you to attend at this office. (Room 30, 3rd floor, Gill House) at 2.30 p.m. on Tuesday,

2nd March, 1953, for the purpose of answering the queries raised in my letter dated 25th September, 1952. I enclose a copy of that letter". The appellant replied to the letter of 20th January, 1953. In his evidence he stated that he had answered one point that had been raised, that he had informed the Regional Commissioner that another point was answered in the documents in the hands of the Income Tax Department and that the remaining three points would be answered by his accountants, Messrs. Harrison and Partners. He received no acknowledgment of this letter, assumed that it was considered to be satisfactory and did not, therefore, attend as he had been conditionally required to do.

In our opinion it is precisely a state of affairs like this or similar to this that will almost inevitably arise when a conditional notice is issued to a taxpayer to attend in answer to the notice. In order that the taxpayer should know exactly what is required of him, the notice should be in express, unambigous, unconditional terms and if they are not in such terms, as section $\overline{61}$ (2) clearly contemplates, the taxpayer in our opinion is not punishable under section 89 $(b)$ :

We set aside the conviction and sentence.