IR Bill omits taxpayers’ safeguards; trespasses into core judicial process: Nigel Hatch

By S.S.Selvanayagam

Senior Counsel found fault with the impugned Inland Revenue Bill and charged that it is obnoxious and arbitrary and the arbitrariness has chilling effect on the public trust.

Counsel Nigel Hatch PC making submission on the impugned Bill for Special Determination of the Supreme Court brought to the cognisance that the oppugned Bill conveniently omits the protection of the rights of the tax papers and their safeguards which had been the part of the taxation law of the country for the last 40 years without exception.

The Bench comprised Chief Justice Priyasath Dep, Justices Anil Gooneratne and Nalin Perera.

Senior Counsel Hatch recollected that the right to written reasons for the rejection of a Return was first introduced in the Inland Revenue Act in 1978 and amended in 1972 keeping the rights of taxpayers and their safeguard.

He contended the sovereignty is in the people and it is inalienable and maintained that the Article 3 of the Constitution on sovereignty of the people (in the Republic of Sri Lank, sovereignty is in the people and is inalienable, sovereignty includes the powers of government, fundamental rights and franchise) and lashed the impugned Bill has taken away the valuable safeguards and the rights of the taxpayers.

He slated that that the arbitrariness uncertainty in the impugned Bill surreptitiously creeps and trespasses into the core function of the judicial process.

He underlined the principles of stability, transparency, certainty and protection and safe guards to taxpayers against arbitrary, and capricious exercise of powers of Revenue authorities are fundamental and form the basis and frame work of tax legislation.

He submitted the Clause 200 in the impugned Bill set out how the Bill is to be interpreted. The said clause reads: In interpreting a provision of this Act, a construction that would promote the purpose or object underlying the provision or the law (whether that purpose or object is expressly stated in the law or not) shall be preferred to a construction that would not promote the purpose or object.

He contended that the said Clause is unprecedented and ex facie violates the Article 3 of the Constitution (Sovereignty of the people).

He bickered the Impugned Clause 200 infringes the Article 4( c) of the Constitution which reads the judicial power of the people shall be exercised by parliament through courts, tribunals and institutions created and established or recognised by the Constitution or created and established by law except in regard to matters relating to the privileges , immunities and powers of Parliament.

He vied that the Clause 200 encroaches on the independence of the Judiciary and is patently unconstitutional.

He submitted that if the Bill to be enacted into law it not only require the two-thirds majority in the Parliament but also the approval of the people at a referendum.

Petitioner Raja Nihal Hettiarachchi cited Attorney General as Respondent. Nigel Hatch PC with S. Jayamaha and Siroshni Illangage instructed by Indunil Bandara appeared for the Petitioner.

Petitioner stated the Bill failed to incorporate time limits imposed on the Commissioner General of Inland Revenue to excise his powers renders the Bill unconstitutional.

Inland Revenue Deputy Commissioners Association comprising most senior and high-ranking officers of Inland Revenue Department, the Inland Revenue staff officers and executive officers and employees also filed a petition. Sanjeeva Jayawardena PC appeared for them. UPFA Parliamentarian Bandula Gunawardane as well as insurance companies too filed their petitions.

Officers of the Inland Revenue in their petition took contention of bones that the said Bill or any part thereof is inconsistent with the Constitution and lament that totally illegal, disastrous and unconstitutional changes sought to be made with a view to cannibalising and/or encroaching upon and thereby making officers of its/their powers and functions, by purported Bill undermining their status and function.

They also claimed they file this application in the interests of the general public and the taxpayer, who stand to be adversely affected with regard to the levying of taxes by the State, and in order to preserve the protections conferred on tax-paying public.

They bickered that the provisions permitting the appointment and/or employment and/or engagement of the services of any person notwithstanding their status, poses a significant threat/risk to the independence and accountability of tax officers and the tax collecting/assessment process of the Department.