From the Supreme Court of Mauritius
The appellant appealed to the Board against the order of the Supreme Court of Mauritius dated 17 February 2010, by which it refused the appellant’s application for an order that, for use in a pending appeal by the appellant to the Supreme Court against the Tax Appeal Tribunal (“the tribunal”) by way of case stated, the record of the proceedings before the tribunal should be brought up to the court and filed in the record of the appeal.
In 1999, almost four years late, the appellant made a tax return for the year 1995/96. For the purpose of income tax it claimed a loss of Rs 1,095,197 for carriage forward into future years. But the Commissioner of Income Tax determined the loss in the reduced sum of Rs 44,055. The tribunal dismissed the appellant’s appeal against the Commissioner’s determination. The appellant applied to the tribunal to state a case for the opinion of the Supreme Court pursuant to section 8 of the Tax Appeal Tribunal Act 1984 and to rule 3 of the Tax Appeal Rules 1984. The tribunal stated the case.
The appellant contended that the case stated was deficient and precluded proper presentation of its appeal. In particular it said that there was no evidence before the tribunal to justify some of its findings; such would of course amount to an error of law.
In the Supreme Court the appellant first raised its dissatisfaction with the statement of the case more than three years following its receipt of the case. By that time it was too late for the court to order that the case be remitted to the tribunal for the statement to be amended. For the tribunal had ceased to exist for all purposes. On the date set for the substantive hearing of the appeal, the appellant, which had procured a copy of the record of the proceedings before the tribunal, purported to include it in the material to be considered by the court. The respondent objected to its inclusion. The hearing was adjourned until 4 February 2008 when the objection was upheld albeit only on the basis that the appellant should, if so advised, issue, by motion, an application for an order that the record of the proceedings before the tribunal be brought up to the court and filed in the record of the appeal. The appellant issued such an application after about two years. It is against the refusal of the application by the Supreme Court on 17 February 2010 that the appeal to the Board had been brought. The ground on which the Supreme Court refused the application was that the appellant’s delay in alleging a deficiency in the statement of case was excessive and unexplained.
The Board concluded that the Supreme Court had a discretion whether to order the record of the tribunal to be brought up to it. The balance to which the Supreme Court referred was for itself to weigh. In the proper conduct of the balancing exercise it was inevitable that the Supreme Court would attach great weight to the shocking delay and thus held that the appeal was dismissed.