Revenue And Customs v Kishore [2021] EWCA Civ 1565 (28 October 2021)

Revenue And Customs v Kishore [2021] EWCA Civ 1565 (28 October 2021)

The Court held that the broad, merits-based approach from Johnson v Gore Wood & Co applies to whether Mr Kishore can raise issues in the penalty appeals that were previously raised in the struck out Kittel appeals. The stricter Arbuthnot line of authority is not applicable in this context, particularly as the penalty appeals are in substance a defence against punitive measures. There was no evidence of intentional, contumelious, or inexcusable conduct by Mr Kishore in the earlier proceedings. The Court also found that the Article 6 ECHR arguments and factual issues regarding delay and prejudice require trial and cannot be determined summarily. HMRC's appeal was dismissed and the...

Citation
[2021] EWCA Civ 1565
Parties
Appellant (cross Respondent): The Commissioners for Her Majesty's Revenue and Customs; Respondent (cross Appellant): Dhalomal Kishore
Jurisdiction
England and Wales
Judgment Date
28 October 2021
Procedural Posture
Appeal From Upper Tribunal (tax and Chancery Chamber) / Court of Appeal Judgment
Outcome
HMRC's appeal dismissed; cross-appeal dismissed.
Legal Topics
Abuse of Process, VAT Penalties, Article 6 ECHR, Res Judicata, Reasonable Excuse, Delay in Proceedings
Tax Law Civil Procedure Human Rights Abuse of Process VAT Penalties Article 6 ECHR Res Judicata Reasonable Excuse +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 20 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

The Commissioners for Her Majesty's Revenue and Customs

Appellant (cross Respondent)

Dhalomal Kishore

Respondent (cross Appellant)

Procedural Posture

Appeal From Upper Tribunal (tax and Chancery Chamber) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether it is an abuse of process for Mr Kishore to advance in penalty appeals issues previously raised in struck out input tax appeals (Kittel appeals)
  2. 2 Whether HMRC breached Article 6 ECHR by delay in penalty assessments
  3. 3 Whether penalties should be set aside for abuse of process by HMRC

Ratio Decidendi

The Court held that the broad, merits-based approach from Johnson v Gore Wood & Co applies to whether Mr Kishore can raise issues in the penalty appeals that were previously raised in the struck out Kittel appeals. The stricter Arbuthnot line of authority is not applicable in this context, particularly as the penalty appeals are in substance a defence against punitive measures. There was no evidence of intentional, contumelious, or inexcusable conduct by Mr Kishore in the earlier proceedings. The Court also found that the Article 6 ECHR arguments and factual issues regarding delay and prejudice require trial and cannot be determined summarily. HMRC's appeal was dismissed and the...

Court Disposition

HMRC's appeal dismissed; cross-appeal dismissed.

Orders

  • HMRC permitted to advance all grounds of appeal, but appeal dismissed.
  • Cross-appeal by Mr Kishore dismissed; Article 6 and abuse of process arguments to proceed to trial if necessary.