COMMISSIONER OF INLAND REVENUE v. PERFEKTA ENTERPRISES LIMITED

COMMISSIONER OF INLAND REVENUE v. PERFEKTA ENTERPRISES LIMITED

Leave to appeal was granted to Perfekta (applicant in FAMV57/2018) on the specific question whether a successful challenge to a majority tribunal decision permits substitution by a minority decision or requires remittal for fresh findings, because that question is of great general or public importance; leave was refused to the Commissioner (FAMV56/2018) because the question he posed was contingent and not appropriate for leave, and his "or otherwise" grounds did not justify granting leave.

Citation
[2018] HKCFA 55
Parties
Applicant in FAMV 56/2018; Respondent in FAMV 57/2018: Commissioner of Inland Revenue; Applicant in FAMV 57/2018; Respondent in FAMV 56/2018: Perfekta Enterprises Limited
Court
Court of Final Appeal
Jurisdiction
Hong Kong
Judgment Date
13 November 2018
Case Number
FAMV56/2018
Procedural Posture
Civil Final Appeal – Applications for Leave to Appeal / Determination on Leave to Appeal; Limited Leave Granted and Appeal Listed for Hearing
Outcome
Leave to appeal granted to Perfekta Enterprises Limited (FAMV57/2018) on the stated question; leave to appeal refused to the Commissioner of Inland Revenue (FAMV56/2018); appeal listed for hearing.
Legal Topics
Capital Vs Trading Asset Characterisation, Leave to Appeal, Substitution of Tribunal Findings Vs Remittal, Standard of Review of Primary Facts, Majority Versus Minority Decisions
Source Language
EN
Tax Law Appellate Procedure Administrative Law Capital Vs Trading Asset Characterisation Leave to Appeal Substitution of Tribunal Findings Vs Remittal Standard of Review of Primary Facts Majority Versus Minority Decisions

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Parties

Commissioner of Inland Revenue

Applicant in FAMV 56/2018; Respondent in FAMV 57/2018

Perfekta Enterprises Limited

Applicant in FAMV 57/2018; Respondent in FAMV 56/2018

Procedural Posture

Civil Final Appeal – Applications for Leave to Appeal / Determination on Leave to Appeal; Limited Leave Granted and Appeal Listed for Hearing

Legal Issues

  1. 1 Whether, where a majority decision of a tribunal is vitiated, an appellate court may substitute the minority decision for the majority decision or must remit the matter for fresh findings
  2. 2 What is the appropriate standard of challenge to conclusions based on primary facts (whether only by showing they are unreasonable, illogical or plainly wrong)
  3. 3 Whether leave to appeal should be granted to the Commissioner on contingent questions including computation of tax assessments

Ratio Decidendi

Leave to appeal was granted to Perfekta (applicant in FAMV57/2018) on the specific question whether a successful challenge to a majority tribunal decision permits substitution by a minority decision or requires remittal for fresh findings, because that question is of great general or public importance; leave was refused to the Commissioner (FAMV56/2018) because the question he posed was contingent and not appropriate for leave, and his "or otherwise" grounds did not justify granting leave.

Court Disposition

Leave to appeal granted to Perfekta Enterprises Limited (FAMV57/2018) on the stated question; leave to appeal refused to the Commissioner of Inland Revenue (FAMV56/2018); appeal listed for hearing.

Orders

  • Leave to appeal granted to Perfekta Enterprises Limited in FAMV57/2018 on the specified question of law
  • Leave to appeal refused to the Commissioner of Inland Revenue in FAMV56/2018