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TMI Blog1949 (10) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax upon the respondent in respect of the years 1936-1939 inclusive. The respondent objected to these assessments as being excessive in amount, and, so objecting, put in motion the procedure provided by the Act, first by serving a notice of appeal upon the appellant himself and then, on the appellant refusing to allow the objection and to reduce the assessments, by appealing to the Court of King's Bench under S. 29, Income Taxation Act that was then in force. 3. There is no dispute as to what was in issue between the parties or as to the facts to which the issue related. The respondent is a Dominion company which has its head office and manufacturing plant in Ontario and a branch office and warehouse in Manitoba. In the Manitoba warehouse is stored chewing gum manufactured in Ontario and from the stocks of this warehouse are filled orders for chewing gum which are obtained from customers not only in Manitoba but also in Alberta, Saskatchewan and parts of Ontario itself. While the orders in respect of such sales are received by the respondent's branch office in Manitoba, payment for the chewing gum supplied is made to the respondent's head office in Ontario. Plainly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the majority of the learned Judges in the Supreme Court coincided with that approved by their Lordships in the International Harvester Co. case, (1949 A.C. 36). Therefore the appeal as conducted before this Board proceeded upon the basis that it was not open to the appellant's counsel to ask that the Order of the Supreme Court from which he was appealing should be set aside on the ground that the respondent was not in law entitled to be allowed a manufacturing profit outside Manitoba in the ascertainment of his profit in Manitoba. The main, and hitherto the only, issue in controversy between the parties thus disappeared. 5. The submission that was made to their Lordships on behalf of the appellant was based on quite a different argument. Attention was directed to the form of the order which Major J. had made when allowing the respondent's appeal in the Court of King's Bench. Not only had he allowed the appeal and set aside the assessments and the appellant's decisions which had affirmed them-this, it was conceded, was within the power of the Court but he had also gone on by his order to adjudge and declare what was the figure of net profit or gain of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mula put forward by the respondent's witness) shall be applied , the representatives of the two parties worked out the relevant figures on the basis of this formula and by agreement of counsel inserted them in the order of the Court, the terms of which they in fact settled and agreed. Thirdly, the appellant's Notice of Appeal to the Court of Appeal for Manitoba contains no ground of appeal that can be read as an objection to the Judge's order in point of form or jurisdiction. In the circumstances this is not surprising. Fourthly, it is not mentioned in the appellant's Factum for the Supreme Court, Fifthly, it was not mentioned in the appellant's petition to this Board for special leave to appeal nor does the Order in Council granting the leave make any reference to the existence of such an issue. 7. These considerations do indeed present a strong argument for the Board to refuse to entertain an appeal which has this issue as its only ground. In effect the appellant, now that the question of principle on which he has hitherto fought the case has been decided contrary to his contention, is seeking at this late stage to raise a new ground which he has not prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.C. 36) case that the net taxable profit is to be ascertained after making an allowance for manufacturing profit to be attributed to the manufacturing activity outside the Province. It is this allowance that the assessments appealed against refused to concede. 10. What then is the purpose and scope of the statutory right of appeal under the Act? For that one must resort to the appeal provisions of the Act. Under S. 53 of the Act any person who objects to the amount at which he is assessed may serve a notice of appeal upon the appellant. Under S. 59 the appellant must duly consider the same and either affirm or amend the assessment appealed against. Under S. 60, if the person objecting is dissatisfied with the decision , of the appellant, he has the right to appeal to a Judge of the Court of King's Bench by a notice which is to set out the grounds of his appeal. By sub-s. (2) of the same section the Judge is directed to hear the appeal and the evidence adduced before him by the appellant and the Crown and to decide the matter of the appeal . 11. If that procedure is applied to the facts of the present case, what happened was that the respondent objected to the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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