Sookna S. K. & Anor v The Director-General, Mauritius Revenue Authority & Ors 2023 SCJ 300.
Appleby Mauritius represented both Applicants in an application before the Judge in Chambers for the erasure of a privilege inscribed by the Mauritius Revenue Authority (MRA) upon the property of Applicant No. 2, Nive Co. Ltd of which, Applicant No. 1 is a Director. The Applicants operate the business of coin-operated amusements machines and allegedly owed tax under the Gambling Regulatory Authority Act 2007 to the MRA. The non-payment of tax gave rise to the inscription of a privilege as a security for the MRA.
The Applicant No. 1 had appealed the decision of the Objection Unit of the MRA to maintain the tax assessment before the Assessment Revenue Committee and in view of the prejudice that such inscription was causing him, he applied to the Judge in Chambers for the erasure of the said inscription of privilege.
It was argued before the Judge in Chambers that the objection raised by the MRA is frivolous and vexatious. Appleby further submitted that the said inscription was critically flawed inasmuch as it was triggered under a provision of law, which at the time the inscription was applied for, had already been repealed. Reference was also made to various provisions of the Code Civil Mauricien, including Titre Dix-Huitieme, Chapitre Deuxieme, Section Troisieme of the Code on “Des Privileges, Des Hypotheques et Des Suretes Fixes ou Flottantes.”
Prior to addressing the contentious issue of the case, the Court noted that:
“It is a matter of concern however that Case ARC/VAT/54-16 has, apparently, been pending before the ARC since 2016 and that the impugned inscription of privilege burdening the property of the first applicant was made as far back as in 2014.”
The Court held that the objection raised by the first respondent is not serious and lacks substance as the inscription of privilege made on 2 April 2014 under the repealed Gaming Act by the second respondent was not made under the authority of a valid law and is therefore null and void:
“I have given careful consideration to whether the inscription may still be held to be valid despite the repeal of the Gaming Act. I am of the view however that the savings provisions at section 167(2)(b) of the Gambling Regulatory Authority Act would find no application in that case as they would only serve to preserve acts which had been lawfully made under the repealed Act before its repeal and before the commencement of the repealing Act. Nor would section 17 of the Interpretation and General Clauses Act be of any avail to the first respondent as, in the present case the Gaming Act had already been repealed long before the privilege was inscribed on 2 April 2014.
Further Article 2197-3 of the Code Civil Mauricien provides for the erasure of an inscription which is not founded in law – “La radiation doit être ordonnée par le Juge en Chambre lorsque l’inscription a été faite sans être fondé ni sur la Ioi, ni sur un titre, ou lorsqu’elle l’a été en vertu d’un titre soit irrégulier, soit éteint, ou soldé, ou lorsque les droits de privilège ou d’hypothèque sont effacés par les voies légales.”
The Court ordered the second respondent, The Conservator of Mortgages to erase the said inscription from its books and registers forthwith.
SOOKNA S.K. & ANOR V THE DIRECTOR -GENERAL, MAURITIUS REVENUE AUTHORITY & ORS ›PDF
