Verity. C.J. This is an appeal from a decision of the Supreme Court affirming on appeal convictions in a Magistrate’s Court for offences contrary to section 65 of the Income Tax Ordinance (Cap. 92).
The first count charges that the appellant failed to pay the sum of £340 4s. 0d. by way of tax and penalty for the year 1943-44 and the second count with a like failure in respect of £427 13s. 9d. for the year 1948-49.
When the matter first came before the Magistrate there were also two counts charging the appellant with failure to pay £496 19s. 3d. and £353 3s. 4d. respectively for the years 1941-42 and 1942-43. Certain objections were taken in regard to these counts and leave to make certain amendments thereto was granted, but subsequently the complainant withdrew these counts and a verdict of acquittal was recorded in respect thereof.
Counts 3 and 4 were subsequently amended and the hearing proceeded. It is clear that the appellant has been assessed for tax for the year 1941-42 at £473 6s. 0d., for 1942-43 at £536 7s. 0d and for 1943-44 at £324, a total for these three years alone of £l,13313s. 0d., a sum which does not appear to include penalties for non-payment within the prescribed time.
On the 9th May, 1947, the appellant offered to pay £402 1s. 6d. in full in settlement of his tax. including penalties for the years 1940-41 to 1944-45 and, having previously paid £102 1s. 6d., forwarded a cheque for £300. A receipt had been issued in respect of the payment of £102 1s. 6d. “on account of Income Tax 1941-42” and a further receipt was issued on 10th May, 1947, for £300 “on account of Income Tax 1945-46 .” On the 13th May, 1947, the Assistant Commissioner of Income Tax endorsed on the back of this latter receipt the words Appeal “Receipt is for the years of assessment 1940-41, 1941-42, 1942-43, 1943-44 and 1944-45 and 1945-46”.
Although nowhere upon the face of the receipt or this endorsement is there any indication whatever that the sum of £300 was received by the Assistant Commissioner of Income Tax in full settlement or as final payment and it is to us perfectly clear that the whole document read together can have no other interpretation than that it is a receipt for £300 paid on account of Income Tax for the years referred to in the endorsement the appellant seems to have conceived the idea and his Counsel to have persuaded the learned Judge in the Supreme Court that it can be interpreted as being an acknowledgment of full settlement of tax for those years and this in spite of the clear meaning of the words “on account of” and in spite of the fact that the appellant knew, as appeared from his letter of 9th May, that his offer could only be accepted by the Commissioner of Income Tax, which acceptance was at no time made.
It is quite clear, therefore, that in so far as the ground of appeal alleging payment rests upon this receipt it must fail. It was further submitted by Counsel, however, that the sum of £402 1s. 6d. not having been specifically allocated to the payment of tax. for any particular year and it being in excess of the amount which the appellant is charged with having failed to pay in count 3 the appellant must be deemed to have paid the latter sum. In support of this contention Counsel urged that counts 1 and 2 which relate to non-payment of the tax for years 1941-42 and 1942-43 having been withdrawn and a verdict of acquittal recorded no part of the £402 1s. 6d. can be referable to the tax for those years.
It is sufficient to observe that the offence of failure to pay and prosecution in respect of such an offence are not under the Ordinance related in any way to the recovery of the tax nor does acquittal of such an offence necessarily discharge the obligation to pay, as is modified (? indicated) by section 76 of the Ordinance. Only if acquittal made clear from proof of payment would it so operate and there is no such suggestion in the present case. It is abundantly clear that the only sums paid in respect of the whole period from 1941-42 to 1945-46 are the sums of £102 1s. 6d. and £300 paid on account thereof. It having been made clear by the endorsement on the back of the receipt for £300 that this payment was accepted on account of the years of assessment from 1941-42 on wards it is equally clear that it did not suffice to cover the tax even for the first of those years which, with penalty, amounted to £49619s. 3d.
It is established by the evidence that the appellant has failed to pay the tax and penalty to which each count relates and was rightly convicted, unless the second ground of appeal argued before us avails.
This ground alleges that the proceedings are a nullity in that the Assistant Commissioner of Income Tax is not competent to prosecute. Counsel suggested in reply to a question from the Court, that the Commissioner of Income Tax himself alone is competent to institute proceedings. If it be that the Commissioner is empowered to do so, then it is apparent that his deputy or an Assistant Commissioner are also competent for by section 2 of the Ordinance references to the Commissioner include a deputy or Assistant Commissioner for all purposes except the exercise of powers conferred by sections 72, 73 and 77 which are not involved in the present proceedings.
In point of fact, however, the Ordinance does not prescribe any particular person or class of persons who may make complaint in regard to the committing of offences created thereby and it is therefore open to any person to institute proceedings on complaint by virtue of section to of the Criminal Procedure Ordinance. In our view therefore this ground, which was the only ground relevant. to count 4, fails and the appeal as regards both convictions is dismissed.
Appeal dismissed.