IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CIVIL  PETITIONS  NOS. CBV 0001 of 2019 and CBV 0004 of 2019
[Court of Appeal No. ABU 0007 of 2017]

BETWEEN		:	FIJI REVENUE AND CUSTOMS SERVICE
				
Petitioner

AND			:	TREASURE ISLAND LIMITED (IN LIQUIDATION)

Respondent
							
AND

BETWEEN		:	TREASURE ISLAND LIMITED (IN LIQUIDATION)

Petitioner
		
AND			:	FIJI REVENUE AND CUSTOMS SERVICE

Respondent

Coram			:	The Hon. Mr. Justice Saleem Marsoof
Judge of the Supreme Court

The Hon. Mr. Justice Brian Keith 
Judge of the Supreme Court

The Hon. Mr. Justice Priyasath Dep 
Judge of the Supreme Court

Counsel	:	Mr E. Eterika and Mr R. Singh for Fiji Revenue and Customs 
Service

				Mr J. Bale for Treasure Island Limited

				Ms P. Singh and Ms G. Naigulevu for the Official Receiver

Date of Hearing	:	11 April, 2022	
Date of Judgment 	:	29 April, 2022    
JUDGMENT
Marsoof, J

[1]	I have read the judgment of Keith J in draft and agree with his reasoning and conclusions, and the orders proposed by him. 

Keith J

Introduction

[2]	Value added tax (“VAT”) is a tax on goods and services.  It represents a move away from the traditional forms of taxation which for the most part tax you on your income or the turnover of your business.  Under the VAT regime, you pay tax on the goods and services which you as a consumer choose to pay for.  This form of indirect taxation has become one of the most successful ways in which governments raise revenue. 

[3]	This case is a VAT case.  It arises out of Cyclone Evans in 2012.  The Treasure Island Resort – which is owned by Treasure Island Ltd (“the Company”) – was damaged in the cyclone.  Its loss was covered by insurers.  Some of that loss related to the interruption of the Company’s business.  The insurers settled the Company’s claim in full, but the Fiji Revenue and Customs Service (“the Revenue”) required the Company to pay VAT on that part of the claim which related to its loss of business.  The Company objected to the assessments which the Revenue made, but that objection was overruled.  The Company applied to the Tax Court for a review of that decision.  The Tax Court agreed with the Revenue and refused that application, but the Company was successful in the Court of Appeal which held that no VAT was payable by it.  The Revenue now seeks leave to appeal against that decision to the Supreme Court.

[4]	There is another appeal involving the same parties and arising out of the same subject matter.  This appeal is brought by the Company.  No order has been made for the two appeals to be consolidated, which was why the Company’s appeal was listed for hearing immediately after the hearing of the Revenue’s appeal.  The Company had paid the VAT pending the outcome of the claim it brought in the Tax Court.  When it eventually won in the Tax Court, it wanted the VAT which it had paid returned to it.  So far, so good.  But it also wanted interest, and at quite a high rate.  The Court of Appeal refused to award it any interest, and the Company now seeks leave to appeal against that decision to the Supreme Court.  This single judgment deals with both appeals.  Of course, the Company can only pursue its appeal if the Court of Appeal’s decision on the substantive issue stands.  If it does not, and the Revenue succeeds on its appeal, the Revenue will not have to return the VAT already paid, and the Company will therefore not be entitled to be compensated for having been kept out of its money.

The winding up of the Company    
[5]	On 25 October 2021 the High Court ordered that the Company be wound up, and pursuant to section 537(1) of the Companies Act 2015 it ordered that the Official Receiver be appointed as its provisional liquidator to conduct the winding up.  That engaged section 531 of the Companies Act, which provides:
“Where a winding up order has been made or a provisional liquidator has been appointed under section 537, no action or proceeding must be proceeded with or commenced against the company, except by leave of the court and subject to such terms as the court may impose.”  

The effect of that is that the Revenue needs the leave of the Court under section 531 if it is to continue with its appeal.  That does not apply to the Company’s appeal.  That is because section 531 requires the leave of the court in respect of actions proceeding against the company, not in respect of actions being brought by the company. 
[6]	The High Court would have been the venue for the determination of the relevant application for leave.  That is because section 3 of the Companies Act provides that all references to “court” in that Act are references to the High Court unless the context otherwise requires.  No application for leave was made to the High Court by the Revenue until very recently.  That is entirely understandable.  The Revenue only became aware that the Company had gone into liquidation on 16 March 2022, and it was only after that that the Revenue informed the Official Receiver of this litigation.  But the fact that no application for leave under section 531 had been made to the High Court until recently is not a problem.  The combined effect of section 13 of the Court of Appeal Act 1949, section 14 of the Supreme Court Act 1998 and rule 24 of the Supreme Court Rules is to give the Supreme Court the power to determine the Revenue’s application for leave, and we propose to do that rather than adjourn the appeal so that leave can be sought from the High Court.
 
[7]	The appeal which the Revenue wishes to bring raises a short but by no means easy point on the proper interpretation of one of the statutory provisions relating to VAT.  The Revenue says that the interpretation of this provision is a matter of considerable importance – not only to the Revenue, but “also to Fiji’s taxation system, the insurance industry and the general public as a whole”.  I have no reason to doubt that, but there are other considerations.  In Cassegrain v General Cassegrain & Co Pty Ltd (in liquidation) (2012) NSWCA 435, the Court of Appeal of New South Wales adopted the commentary in Austin and Black’s Annotations to the Corporation Act, para 5.47B, which stated:
“The relevant factors to be taken into consideration include the amount and seriousness of the claims; the degree and complexity of the legal and factual issues involved; the stage to which the proceedings, if commenced, have progressed; the risk that the same issues would be relitigated if the claims were to be the subject of a proof of debt; whether the claim has arguable merit; whether proceedings are already in motion at the time of the liquidation; whether the proceedings will result in prejudice to the creditors; whether the claim is in the nature of a test case for the interest of a large class of potential claimants; whether the grant of leave will unleash an avalanche of litigation; whether the cost of the hearing will be disproportionate to the company’s resources; delay and whether pre-trial procedures such as discovery and interrogatories are likely to be required or beneficial.”

[8]	The critical feature of this appeal is that the Company was wound up well after the litigation which has resulted in this appeal began.  Indeed, it was wound up after the case had got to the Supreme Court, and submissions had been filed in support of and in opposition to the appeal.  Since the application for permission to proceed with the appeal is being considered along with the appeal itself, there will be no additional costs to speak of if the appeal is allowed to proceed.  In these circumstances, the most important consideration for me is whether the Company’s creditors will be prejudiced if the appeal is allowed to proceed.  For that reason, we inquired what the Company’s assets and debts are.  We were told that the Official Receiver has not yet received a statement of the Company’s affairs, but that the Company has 8 creditors: one secured creditor for the sum of $14,800,918.18 and 7 unsecured creditors for sums totaling $635,395.31.  As for its assets, we were told that the Company’s shareholders had forecast that they would fetch something in the region of $53m.  On those figures, that would leave more than enough for a full distribution to made to the creditors.  As an aside, we asked why the Company went into liquidation when its assets far exceeded its liabilities.  Counsel for the Official Receiver was unable to answer that question.  In the circumstances, I would be prepared to give the Revenue leave to proceed with its appeal under section 531.  That, of course, does not deal with the Revenue’s need to obtain leave to appeal under section 7 of the Supreme Court Act.  I shall return to that later in this judgment.

[9]	I turn to the position of the Official Receiver.  His powers are circumscribed by section 543 of the Companies Act.  Section 543(1) provides, so far as is material:

“Subject to this section, the liquidator in a winding up by the court must have power, with the sanction either of the court or of the committee of inspection … (a) to bring or defend any action or other legal proceeding in the name and on behalf of the company …”

The effect of that is that the Company can only bring its appeal, and defend the Revenue’s appeal, if the court or the committee of inspection has permitted it to do so.  We were told that the committee of inspection has not yet been appointed.  That means, at first blush, that the Company needs the sanction of the court if it is to be able to defend the Revenue’s appeal and bring its own appeal.  However, section 552 of the Companies Act is relevant here.  That provides:
“Where, in the case of a winding up, there is no committee of inspection, the court may, on the application of the liquidator, do any act or thing or give any direction or permission which is, by this Act, authorized or required to be done or given by the committee, provided that, where the Official Receiver is the liquidator, the Official receiver may do any such act or thing and give any such direction or permission without application to the court.”

In the absence of a committee of inspection, the Official Receiver has given the Company permission to proceed with its appeal, as well as to defend the Revenue’s appeal, and therefore the Court’s leave under section 543 is not required. 

The relevant facts

[10]	The facts of the case are undisputed.  I take them from the judgments of the Tax Court and the Court of Appeal, and from the documents in the Record of the High Court.  The Treasure Island Resort is a luxury resort on a small island off the coast of Fiji near Lautoka.  The Company engaged a local insurance broker to arrange insurance cover for it.  The broker was a company registered in Fiji and licensed as an insurance broker under the Insurance Act 1998.  Its primary business is to arrange insurance cover for its clients both in Fiji and in overseas insurance markets.  In due course, the broker arranged through brokers in London an all risks policy for the Company, which included damage and business interruption cover by cyclone, with Lloyds of London (“Lloyds”).  As is well known, Lloyds is not an insurance company, but a society of members, both corporate and individual, who underwrite policies of insurance in syndicates.  It is based in London, and does not have a branch in Fiji.  The policy was issued on 23 August 2012, and was for 12 months from 31 August 2012 to 31 August 2013.  The premium was payable in London, and the Company paid the premium to the local broker following the local broker’s invoice to the Company dated 27 August 2012.  It was then paid by bank transfer by the local broker to the London brokers.  The Revenue has always accepted that the policy was made in London.  

[11]	Cyclone Evans hit Fiji in December 2012.  The resort was badly damaged.  A claim was made under the policy.  The claim was accepted, and the Company was paid the sum of $10,458,129.57 by Lloyds.  The payment was made by the brokers in London by bank transfer into the Company’s bank account in Fiji towards the end of 2013.  Of the sum paid to the Company, the sum of $4,191,442.14 was for the loss of the Company’s profits as a result of the interruption to its business, and that is the amount to which the Revenue’s appeal relates because that is the sum which the Revenue, by two assessments dated 24 June 2015, assessed VAT on.  The VAT which it demanded amounted to $418,445.80.  At first blush, the assessments would have come as something of a surprise to the Company.  By a letter dated 22 May 2013, the Revenue had informed the Company’s financial controller that “[a]ny monies received in relation to business interruption & loss of revenue will not be subject to VAT”.  It will be necessary to return to that later.   

[12]	Between 24 July 2015 and 31 March 2016, the Company paid the Revenue sums totaling $540,823.97 in respect of the VAT charged on that part of the payment received by the Company from the brokers in London which related to the interruption of its business.  The difference of $125,378.17 between the amount demanded by the Revenue ($418,445.80) and the VAT actually paid by the Company ($540,823.97) is because of the Revenue’s initial stance that VAT was not payable.   The Revenue had given the Company refunds based on its initial stance.  When the Revenue changed its mind, and decided that VAT was payable on the part of the payment which related to the interruption of the Company’s business, the Revenue reversed that refund, and the Company ended up paying that sum back.

The statutory framework

[13]	VAT is payable by the supplier of those goods and services which are liable to VAT.  This case concerns the supply of services, not the supply of goods.  All references from now on to sections of, or schedules to, an Act are references to sections of, and schedules to, the Value Added Tax Act as it applied in Fiji at all relevant times before changes were made to it in 2016.

[14]	To be taxable, the supply of services must be made “in Fiji by a registered person in the course or furtherance of a taxable activity carried on by that person”: section 15(1).  It is common ground that the Company is a registered person under the Act and that the running of the Treasure Island Resort was a taxable activity.  However, the supply of those services will not be taxable where the supply is zero-rated: section 15(2).  A supply of services will be zero-rated where the services supplied “are physically performed outside Fiji”: section 2(1) and para 13 of the Second Schedule.  In addition, a supply of services will, by section 16(4), be “deemed to be … in [a country other than Fiji], if that supplier belongs in that other country”.  The Company’s case has always been that the insurances services it received were supplied by Lloyds – not a registered person under the Act – and in the light of the fact that Lloyds is based in London and has no branch in Fiji, Lloyds “belongs” in England.  The Revenue does not suggest otherwise.   

[15]	With that background in mind, I turn to the critical provision in this case.  Policies of insurance are specifically addressed in the Act.  Section 3(8) provides, so far as is material:
“…if a registered person receives a payment under a contract of insurance … , the payment is, to the extent that it relates to a loss incurred in the course or furtherance of the registered person’s taxable activity, deemed to be consideration received for a supply of services performed by the registered person -
(a) on the day the registered person receives the payment; and 
(b) in the course or furtherance of the registered person’s taxable activity, provided that this subsection shall not apply in respect of any payment received pursuant to a contract of insurance where the supply of that contract of insurance was … (ii) zero-rated …”

The outcome of this appeal turns on the proper interpretation of that provision.  

[16]	The first part of this provision up to the proviso seems to me to be clear.  Say you insure yourself against, for example, losses incurred as a result of a disruption to your business.  Suppose then that your business is indeed disrupted due to the occurrence of a risk covered by your policy.  And suppose then that this disruption to your business results in some loss and your insurers pay you a sum to compensate you for that loss.  The effect of the first part of the provision is that the payment you receive from your insurers will be treated as if it was a payment by those to whom you have supplied the services.  And if these services are chargeable to VAT, you have to pay VAT on the payment you receive from your insurers.  That is common ground between the Revenue and the Company.  The dispute between them is whether the effect of the proviso was to disapply that.  The proviso disapplies the first part of the provision where the payment you receive from your insurers was in respect of a supply of services which were zero-rated.  That requires the court to identify to which services the proviso applied.

The decisions of the lower courts

[17]	The Court of Appeal accepted the Company’s argument.  It took the view that the services to which the proviso related were the services supplied by Lloyds.  Since those services had been performed outside Fiji, the supply of those services was zero-rated.  Indeed, although the Court of Appeal did not say so, it could have added that as Lloyds was not a registered person under the Act, the services it provided were not taxable at all.  The Court of Appeal therefore allowed the Company’s appeal from the Tax Court, where Alfred J had come to a different conclusion.  He agreed with the Revenue.  He thought that the services to which the proviso related were the services supplied by the Company to its guests at the resort.  Since those services had been performed by a registered person, they were potentially liable for VAT, and since they had been performed within Fiji, the supply of those services was not zero-rated.  That was why he had dismissed the Company’s objection to having been assessed as liable for VAT. 

The language of the proviso

[18]	The Company’s primary case is that the language of the proviso itself provides the answer to the problem.  The proviso refers to “the supply of that contract of insurance”.  That can only mean, so the argument goes, that the services to which the proviso relates are the services supplied by the insurers.  I do not agree.  I quite accept that the proviso could be referring to the supply of services under the policy of insurance, ie the services which the Company’s insurers provided to it.  But looking at the language alone, the proviso could just as easily be referring to the supply of services to which the policy of insurance relates, ie the services which the resort provided to its guests which the policy of insurance was to cover.  The language is sufficiently ambiguous to render it an unreliable guide to what the legislature intended. 

The proper interpretation of the proviso

[19]	To understand what the legislature intended, it is necessary to identify the mischief which section 3(8) sought to address.  Section 3(8) has to be seen in the context of the Act as a whole which was to render payments received for certain services (and goods) liable for VAT.  But suppose the taxpayer cannot provide those services in its entirety but is nevertheless compensated in some way for his inability to provide those services.  That compensation reflects the profits which the taxpayer would have made had he been able to provide those services, and which would have been liable for VAT.  The manifest intention of the first part of section 3(8) was to address a particular form of compensation which the taxpayer might receive – namely payments received under a policy of insurance which covered the loss caused to the taxpayer by not being able to provide in their entirety the services which the taxpayer would normally be providing.  Those payments would be liable for VAT.

[20]	Translating that to the particular circumstances of this case, the Company’s business was disrupted by Cyclone Evans. It was not able to provide for a while the services it would normally provide to its guests. It was therefore unable to make the profits it would otherwise have done.  However, it was compensated for the loss of those profits by the sums paid out under its policy of insurance.  The manifest intention of section 3(8) was to make those payments liable for VAT.  Since the profits which the taxpayer had lost would have been liable for VAT, then the payments which the taxpayer received to compensate him for the loss of those profits should be liable for VAT as well.

[21]	Against that background we come to the proviso.  In the light of the background, the purpose of the proviso has to have been to make the payments received by the taxpayer under the policy of insurance not chargeable to VAT where the services provided by the taxpayer were not liable for VAT.  That is the only reading of the proviso which fits in with the manifest intention of the first part of section 3(8).  It makes no sense for the proviso to have made the payments received by the taxpayer under the policy of insurance not chargeable to VAT where the services provided by the insurers were not liable for VAT.  The manifest purpose of section 3(8) will have been frustrated if that is the correct reading of the proviso.  Even though the taxpayer is being compensated by a sum which represents the profits which it would have made but for the disruption to its business and which would have been liable for VAT, the taxpayer’s liability for VAT, on the Company’s reading of the proviso, would depend on a wholly unrelated circumstance, namely whether the taxpayer had used off-shore insurers rather than ones in Fiji.  I can discern no reason whatever why the legislature would have wanted to create such a distinction.

[22]	Moreover, the Company’s reading of the proviso creates a curious anomaly.  On any view, the services to which the first part of section 3(8) relates can only be the services provided by the resort to its guests.  It would be surprising if the services to which the proviso relates were a completely different set of services, namely the insurance services provided by Lloyds. 

[23]	In response to all that, it might be asked: if the proviso is referring to the supply of those services to which the policy of insurance relates, when would the supply of those services be zero-rated?  I accept that it would be difficult to think of circumstances in which the supply of the type of services which a resort in Fiji supplies to its guests would be zero-rated.  But suppose the Company owned and operated another resort which was not in Fiji, and it was that resort’s business which had been disrupted.  In that case, the payment which the Company would have received from its insurers would be zero-rated because the services supplied would have been physically performed outside Fiji.  In any event, section 3(8) is not limited to the hotel and catering industry.  The supply of very many other services is liable for VAT, and there may be many circumstances in which the supply of those services would be zero-rated.   

[24]	The Company’s written submissions dealt with the time and place of supply.  On its case, the relevant time of supply was on 27 August 2012 because that was when the invoice for the payment under the policy was sent, and the relevant place of supply was London because that was where the insurers were based.  I do not regard the time of the supply of the services in this case as relevant.  Section 3(8) was amended on 10 January 2012 by the Value Added Tax (Amendment) (No 2) Decree 2012 with retrospective effect from 1 August 2010.  Accordingly, whenever the relevant supply was, it occurred when section 3(8) was in the form set out in para 15 above.  As for the place of supply, I accept that if the relevant place of supply was London, the proviso would apply in this case because the supply would then be zero-rated since the services would be deemed to have been supplied in London.  But what this argument assumes is that the proviso applies to the services supplied by the insurers.  For the reasons I have given, the proviso applies to the services provided by the taxpayer – and they were provided in Fiji.  The Company’s argument puts the cart before the horse. 

[25]	There is one other point which needs to be made.  Section 3(8) is very similar to section 5(13) of New Zealand’s Goods and Services Tax Act.  Indeed, they are so similar that I imagine section 5(13) was deliberately reproduced in section 3(8).  The relevance of that is that the Commissioner of Inland Revenue in New Zealand has issued a statement explaining his policy on the application of section 5(13).  That statement, taken from Tax Information Bulletin, vol 5, no 12 (May 1994), includes the following passage: 

“If a registered person receives payment from a non-resident insurer for an asset which formed part of the taxable activity and which is lost or damaged, generally the registered person is not required to return GST on the payment.  This is because section 5(13) does not apply when the contract of insurance is not subject to GST.  Under section 8 of the GST Act, a contract of insurance supplied by a non-resident is not supplied in New Zealand and so is not subject to GST.  The exception is where the non-resident insurer has a registered branch in New Zealand and the branch enters into the insurance contract.” 

In other words, the Commissioner’s policy is entirely consistent with the Company’s case.  We were not told whether the Commissioner has issued a more recent statement explaining his policy, but his statement in 1994 is obviously important.  

[26]	This is a powerful point.  But it must be remembered that this is just a policy.  It represents the Commissioner’s view of the effect of the relevant statutory provision.  I take into account the Commissioner’s view which naturally deserves great respect, but ultimately the matter is one of statutory interpretation for the courts.  With considerable diffidence in view of the opinion of the Commissioner, his is not a view which I share for the reasons I have already endeavoured to give.  In my opinion, the proviso to section 3(8) refers to the supply of services to which the policy of insurance relates, and not to the supply of services under the policy of insurance.  Since the services to which the policy of insurance in this case related were the services provided in Fiji by the Company to its guests at the Treasure Island Resort, the supply of those services was not zero-rated, and the Revenue is not obliged to return to the Company the VAT it has paid.

The letter of 22 May 2013
[27]	One of the Company’s objections to the assessments related to the letter of 22 May 2013.  Once the Revenue had said in that letter that no VAT would be chargeable on any payments received from the insurers for loss of profits as a result of the disruption to the Company’s business, it could not go back on that.  That argument was rejected by Alfred J in the Tax Court, but it is unclear what the Court of Appeal thought about it.  It plainly thought that one aspect of Alfred J’s reasoning was flawed (namely the reliance which Alfred J placed on the decision of the Court of Appeal in Punjas Ltd v Commissioner of Inland Revenue [2006] FJCA 66), but since the Court of Appeal was going to allow the appeal anyway on the basis that the relevant services for the purpose of the proviso were the insurance services provided by Lloyds which were zero-rated, it did not have to reach a conclusion on the legal effect of the letter of 22 May 2013.  Looking at the relevant paragraphs of the Court of Appeal’s judgment (paras 27-33), I do not think that it reached a conclusion on the issue.  If it did, it failed to express itself with sufficient clarity.

[28]	Why did the Revenue change its mind?  It says that when it wrote the letter of 22 May 2013, it was looking at the version of section 3(8) as it had existed prior to 10 January 2012 before it had been amended with retrospective effect.  It was when it was appreciated that section 3(8) had been amended that it realized that the letter of 22 May 2013 had been in error.  I am sceptical about that.  The earlier version of section 3(8) did not have the proviso to it, and if anything it would have made the Company’s liability for VAT even clearer.  That is especially so in the light of the decision of the Supreme Court in Ghim Li Fashion (Fiji) Ltd v Commissioner for Inland Revenue [2008] FJSC 15 to which Alfred J was referred in the context of how the letter of 22 May 2013 came to be written.  In that case the Supreme Court upheld the taxpayer’s liability to pay VAT on the old version of section 3(8).  It may be that the real reason why the error was made is that the author of the letter of 22 May 2013 was unaware of section 3(8) in whatever form it then was.  Not that any of this matters.  Either way it was an error as to what the law was – whether that error arose as a result of ignorance of section 3(8) or because the wrong version of section 3(8) was being looked at or because the effect of Ghim was misunderstood. 

[29]	Was the Revenue entitled to go back on that letter?  At one time, the Revenue was relying on section 15 of the Tax Administration Act 2009 (“the 2009 Act”) which is headed “Rectification of mistakes” and which provides:
“If the CEO is satisfied that an order made or document issued by the CEO under a tax law contains a mistake which is apparent from the record and that the mistake does not involve a dispute as to the interpretation of the law or facts of the case, the CEO may, for the purpose of rectifying the mistake, amend the order or document at any time before the expiry of 6 years from the date of making or issuing the order or document.”

Alfred J rejected the Revenue’s reliance on that provision.  He took the view that the Revenue had not been rectifying a mistake by amending the letter of 22 May 2013.  It had been withdrawing an earlier decision.  Indeed, those were the words used by the Revenue in its letter of 23 June 2015 which immediately preceded the issue of the assessments.  The Court of Appeal did not reach a conclusion on that issue, but the issue can be put to one side since it is no longer being pursued by the Revenue.
[30]	Having concluded that section 15 of the 2009 Act could not be relied on by the Revenue, Alfred J then considered whether it had nevertheless been open to the Revenue to go back on the letter of 22 May 2013.  He concluded that it had been.  As I have said, he relied on the decision of the Court of Appeal in Punjas.  In that case, the court set out a number of general taxation principles which had emerged from the decided cases over the years and which affected the operation of the Act.  Two of those principles were as follows:
“(9)   The Commissioner is free to resile from a position hitherto taken up by him:
‘It is his judgment that counts under the statutory scheme in all these situations and it is a judgment which must be exercised from time to time unfettered by any views that he may have previously expressed either generally or in relation to a particular tax payer or matter and unconstrained by an assessment he may have previously made’: CIR v Lemmington (1982) 1 NZLR 517 at page 522 per Richardson J.
(10)  	The doctrine of estoppel does not operate to preclude the Commissioner from pursuing his statutory duty in accordance with law: AGC Investments Ltd (1991) ATR 1379 at page 1396 per Hill J.  Likewise Lemmington at page 523 per Richardson J:
‘As we have said, the Commissioner cannot be estopped by past conduct from performing its statutory obligations to make assessment as and when he thinks proper.  It is his present judgment as to the statutorily imposed liability for tax that counts.  The correctness of that judgment and of the Commissioner’s view of the law and facts which lead him to make his assessment cannot be challenged outside the objection procedures.”

[31]	The Court of Appeal disagreed with Alfred J’s reliance on Punjas.  It regarded Punjas as distinguishable from the present case.  In Punjas, the Revenue sought to go behind an assessment which had been reached by consent.  In the present case, the Revenue was seeking to go behind a previously expressed view about whether the taxpayer was liable for VAT.  In my respectful opinion, this was a distinction without a difference.  The principles in Punjas were principles of general application.  Their applicability did not depend on why the Revenue sought to change its position.

[32]	Perhaps appreciating its difficulty in supporting the Court of Appeal’s view about the applicability of the principles identified in Punjas, the only point now taken on behalf of the Company is that the principles identified in Punjas have to be treated as subject to section 15 of the 2015 Act.   So the Revenue’s unfettered power to resile from a position previously taken by it is now fettered by section 15.  The Revenue could therefore only have resiled from the stance it had taken in the letter of 22 May 2013 if that had been a mistake, if the mistake had been apparent from the record, and if the mistake had not involved a dispute as to the interpretation of the law or facts of the case.
[33]	I do not agree.  The power given to the Chief Executive Officer of the Revenue by section 15 of the 2009 Act was a very limited one.  It applied only to the rectification of orders or documents.  If, for example, by mistake an order failed to reflect what had actually been ordered, or a document failed to record accurately what had actually been agreed, section 15 gave the Revenue’s Chief Executive Officer the power to correct that error.  It had absolutely nothing to do with any of the general principles of taxation identified in Punjas.  It follows that in my view it had been open to the Revenue to go back on the position stated in the letter of 22 May 2013.   
Conclusion     
[34]	This means that the Company’s appeal about the award of interest is academic, and for that reason I would refuse the Company’s application for leave to appeal to the Supreme Court.  As for the Revenue’s appeal, I think that it raises a far-reaching question of law on the proper interpretation of section 3(8) of the Value Added Tax Act.  I would therefore give the Revenue leave to appeal to the Supreme Court.  In accordance with the Supreme Court’s usual practice, I would treat the hearing of the application for leave to appeal as the hearing of the appeal itself.  I would allow the appeal.  I would set aside the order of the Court of Appeal including the order for costs, and I would restore the order of Alfred J dismissing the Company’s application for a review of the rejection of its objection to the assessments.  I would order the Company to pay to the Revenue its costs both in the Court of Appeal and in the Supreme Court summarily assessed at $8,000.00.  The effect of that is that the Revenue becomes another creditor of the Company in the liquidation. 
Dep, J
[35]	I have read in draft the judgment of Keith J and I agree with his reasoning and conclusions.

Orders:

(1)	The application of Treasure Island Ltd for leave to appeal to the Supreme Court in Civil Petition No CBV0004/19 is refused.

(2)	The application of the Fiji Revenue and Customs Service for leave under section 531 of the Companies Act 2015 to proceed with Civil Petition No CBV0001/19 is granted.

(3)	The application of the Fiji Revenue and Customs Service for leave to appeal to the Supreme Court in Civil Petition No CBV0001/19 is granted.

(4)	The appeal of the Fiji Revenue and Customs Service in Civil Petition No CBV0001/19 is allowed, the order of the Court of Appeal in Civil Appeal No ABU0007/17 is set aside, and the order of the Tax Court in Tax Court Appeal No HBT0003/16 is restored.

(5)	Treasure Island Ltd must pay to the Revenue $8,000.00 towards the costs of the Revenue in Civil Appeal No ABU0007/17 and Civil Petition No CBV0001/19.      

The Hon. Mr. Justice Saleem Marsoof
JUDGE OF THE SUPREME COURT

The Hon. Mr. Justice Brian Keith 
JUDGE OF THE SUPREME COURT

The Hon. Mr. Justice Priyasath Dep 
JUDGE OF THE SUPREME COURT