https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/95

REPUBLIC OF KENYA THE TAX APPEALS TRIBUNAL AT NAIROBI TAX APPEAL NO. E1127 OF 2025 ALMASI BOTTLERS LIMITED …………………………….……….….………….. APPELLANT VERSUS COMMISSIONER OF DOMESTIC TAXES ……………………….…..………. RESPONDENT JUDGMENT BACKGROUND 1. The Appellant is a limited liability company incorporated in Kenya under the Companies Act, No. 17 of 2025. The company is an affiliate of the Coca-Cola Group of Companies, and its principal activity is the production and bottling of various beverages. 2. The Respondent is the principal officer appointed under Section 13 of the Kenya Revenue Authority Act. The Kenya Revenue Authority is an agency of the Government of Kenya mandated with the duty of collecting and receiving all tax revenue, and the administration and enforcement of all tax laws set out in Parts 1 & 2 of the first schedule to the Act, for purposes of assessing, collecting, and accounting for all tax revenues in accordance with those laws. 3. The issue in dispute in this Appeal arose when the Respondent carried out a physical stock verification exercise at the Appellant’s premises in Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 1 of 24 Nyeri and Eldoret for March 2025, culminating in the issuance of an assessment notice dated 7th May 2025. 4. The Appellant objected to the assessment vide its letter dated 17 th June 2025. 5. The Respondent issued its objection decision dated 15th August 2025, confirming the assessment. 6. Aggrieved by this decision, the Appellant lodged its Notice of Appeal dated 24th September 2024. THE APPEAL 7. The Appellant, in its Memorandum of Appeal dated 8th October 2024, has set out the following grounds of Appeal, that: a) The Respondent erred in fact and in law by failing to comply with the High Court’s Order directions that the status quo be preserved with respect to the excise duty rates and implementing new rates of excise duty on the i-Tax portal. b) The Respondent further erred in fact and in law by failing to take into account the explanations and supporting documents provided by the Appellant with regard to the accidental breakages and DEFCO sales for the years 2018 and 2019. c) The Respondent erred in fact and in law by including the accidental breakages and DEFCO sales for the years 2018 and 2019, which fall beyond the statutory period of limitation of 5 years. THE APPEAL. Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 2 of 24 8. The Appellant supported its appeal with its Statement of Facts dated 8th October 2024 and Written Submissions dated 14th April 2026. Inflationary adjustment correction 9. The Appellant averred that on 2nd November 2021, Legal Notice No. 2017 was published introducing the revised exercise duty rates. 10. That shortly thereafter, on 11th November 2021, Petition No. E 491 of 2021 was filed to contest the implementation of these new rates and seeking conservatory orders to suspend the adjustments pending the hearing and determination of the matter. 11. That on 19th November 2021, the High Court issued orders directing that the status quo as of that date be preserved. 12. That this status quo order, staying the implementation of the said Legal Notice (LN) were confirmed and affirmed in the subsequent case: a.Republic v National Environment Tribunal, Ex parte Palm Homes Ltd and another, 2013 eKLR; b.Kenya Breweries Limited v Commissioner of Domestic Taxes, (TAT 668 of 2022) [2023] c. Commissioner of Domestic Taxes v London Distillers (K) Limited. d.Commissioner of Domestic Taxes v Excel Chemicals Limited [2024] KEHC 2440 (KLR), Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 3 of 24 13. The Appellant averred that it had adjusted its sales volume downwards since the Respondent had already implemented the new rates on the iTax system in response to the new rates, to ensure that the correct excise tax would be payable. 14. The Appellant stated that it also provided a detailed reconciliation of the impact of the manual adjustment to the Respondent. DEFCO sales and accidental breakages for the period 2018 and 2019. 15. The averred that: a.Respondent, in the objection decision, failed to allow for DEFCO sales and breakages for the period 2018 and 2019. b.Part of the stock variance was attributable to accidental breakages and DEFCO sales, which are exempt based on the second schedule to the Excise Duty Act for the period 2018 and 2019. c. The DEFCO sales and accidental breakages formed part of the variance, as the comparison was based on the closing stock in the return, which was a cumulative figure originating from the inception of the excise return filing. d.It provided invoices to support this exempt sale. 16. The Appellant identified the following as the issues failing for determination in this appeal: a) Whether the status quo orders issued by the High Court halted the operation of Legal Notic No. 217 of 2021, thereby preserving the applicability of the prior rates. Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 4 of 24 b) Whether various judicial precedents delivered between 19th November 2021 and 26th August 2024 affirming the status quo orders and stay of Legal Notice 217 of 2021 created an enforceable legitimate expectation, thereby precluding the Respondent from retroactively reassessing the Taxpayer for the 2021 -2024 period. c) Whether the status quo orders issued by the High Court halted the operation of Legal Notice No. 217 of 2021, thereby preserving the applicability of the prior rates. 17. The Appellant argued that the orders of status quo remedy issued by the courts were orders in rem and not orders in personam, as was explained by Justice Odunga, as he then was, in Judicial Service Commission vs Speaker of the National Assembly & Another [2013] KEHC 911 (KLR). 18. The Appellant maintained that the effect of the High Court’s directions was to render Legal Notice No. 217 of 2021 inoperative for the duration covered by the orders. That the orders of the High Court were binding on all subordinate bodies, including the Respondent, and that the proper role of the Respondent in the circumstances was to give full effect to the Court’s directions, rather than to act in a manner that undermines or circumvents them. 19. The Appellant submitted that the Respondent had no legal justification in issuing additional assessments premised on Legal Notice No. 217 of 2021, which, at the material times, was the subject of active judicial proceedings and was expressly suspended in its operation. That such assessments are consequently invalid, unjustified, and contrary to established principles of compliance with court orders, as was clarified Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 5 of 24 in Republic v National Environment Tribunal, Ex-Parte Palm Homes Limited & Another [2013] eKLR. 20. The Appellant stated that during the three- year period from 19th November 2021 to 26th August 2024, the Respondent was prohibited from purporting to raise excise duty assessments on the basis of Legal Notice 217 of 2021. 21. The Appellant asserted that it had a legitimate expectation that the Respondent would abide by this order of the court as was elaborated by the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] EKLR. 22. That the decision of the High Court issued on 8 March 2024 in Commissioner of Domestic Taxes v Excel Chemicals Limited [2024] KEHC 2440 (KLR) affirmed the status quo orders and suspended the application of Legal Notice 217 of 2021. 23. That notwithstanding the High Court’s decision in Pubs, Entertainment and Restaurants Association of Kenya & 2 others v National Assembly & 5 others [2024] eKLR issued on 26th August 2024, setting aside the order, that this order did not take away its legitimate expectation for the period between 19th November 2021 and 25th August 2024. Appellant’s Prayers 24. The Appellant prayed that: a. The demand for taxes of Kshs 31,097,437 be declared null and void and be vacated in its entirety. Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 6 of 24 b. The Respondent be restrained from enforcing their demand of any and all assessed taxes arising under the demand from the Appellant. c. The Respondent’s action to demand additional taxes despite logical and cogent explanations being given to it be declared arbitrary, unreasonable, unfair, and contrary to the administration of justice to a taxpayer, and that the same should be set aside. d. The Appeal be allowed with costs to the Respondent. e. Any other remedies the Tribunal deems just and reasonable. RESPONDENT’S CASE 25. The Respondent opposed the Appeal vide its Statement of Facts dated 10th November 2025 and its submissions dated 30th April 2026. 26. On the inflation rate volume adjustment, the Respondent stated that, after the status quo orders issued by the High Court in Constitutional Petition No. E024 of 2021, as consolidated with Petition No. E403 of 2021, there was a subsequent ruling issued on 26th August 2024, maintaining the new rates as communicated via Legal Notice No. 217 of 2021. 27. That based on these facts, inflation rate volume adjustments have not been allowed in the reconciliation of stock variances. 28. On the DEFCO sales and breakages for the periods 2018 and 2019, the Respondent stated that it requested the Appellant to provide the following documents in support thereof vide email on 6th August 2025. Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 7 of 24 a. Schedule showing computation of DEFCO sales of Kshs. 2,608,642.80 liters as per the Appellant’s reconciliation. b. Supporting documents for DEFCO sales, including invoices, delivery notes, sales orders, and contract agreements. c. Schedule showing computation of breakages with a value of Kshs. 1,13,068 as per your reconciliation. d. Supporting documents for breakages, including approvals from relevant government agencies for the destruction of goods and other relevant internal approvals. 29. That the documents were not provided, and it was thus compelled to confirm its assessments because the Appellant failed to sufficiently discharge its burden of proof under Section 56(1) of TPA to prove that its assessments were incorrect. 30. The Respondent argued that, at the time the conservatory orders were issued, the Commissioner had already effected the new rates in the iTax system. 31. That, as confirmed in the Partial ADR Agreement dated 6th February 2026, the Appellant manually adjusted its declared production volumes while filing its Excise Duty returns in order to neutralize the effect of the higher iTax rate and arrive at the same duty payable as under the old rates. 32. That specifically, the Appellant reduced the volumes delivered, as entered in its iTax returns, by multiplying the actual volumes by the higher excise rate on iTax so as to arrive at the correct duty payable. 33. That this manual adjustment to iTax-declared production and delivery volumes is what created the 3,923,323-litre discrepancy between the Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 8 of 24 Appellant’s iTax declarations and the actual physical stock count established during the physical verification exercise. 34. The Respondent submitted that reliance on the case of Kenya Breweries Limited v. Commissioner of Domestic Taxes, where the Tribunal held that the status quo order had stopped the operation of Legal Notice No. 217 of 2021 is misplaced because the High Court in Pubs, Entertainment and Restaurants Association of Kenya & 2 others v National Assembly & 5 others; Kenya Association of Manufacturers (Interested Party) [2024] KEHC 10396 (KLR), issued a ruling on 26th August 2024, expressly maintaining the new rates as communicated via Legal Notice No. 217 of 2021. 35. It was its view that the substantive ruling of the High Court on 26th August 2024 therefore settled the legal position definitively, meaning that the rates introduced by Legal Notice No. 217 of 2021 are valid and applicable. That the status quo conservatory orders, which were always interim and procedural in nature, fell away upon the delivery of the substantive judgment. 36. The Respondent submitted that the Kenya Breweries Tribunal decision (Supra), was determined prior to the High Court’s substantive ruling of 26th August 2024, and as such it cannot be relied upon as a statement of the current law. 37. That by the time the physical stock verification was conducted in March 2025 and the assessment was raised on 7th May 2025, Legal Notice No. 217 of 2021 was fully operative and the rate of Kshs. 6.41 per litre was the correct and applicable rate. 38. It cited Section 10(3) of the Excise Duty Act, 2015, which provides the statutory mandate for the inflationary adjustment of specific Excise Duty rates: “The Commissioner shall, on the 1st of July of each year, Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 9 of 24 adjust the specific rates of excise duty by the rate of inflation for the year preceding that date, as determined by the Kenya National Bureau of Statistics, and publish the adjusted rates in the Gazette." 39. It posited that this provision of law must be given its effect according to the plain words of the statute, as established by the Court of Appeal in the cases of Stanbic Bank Kenya Limited v Kenya Revenue Authority CA Civil Appeal No. 77 of 2008 [2009] eKLR and in Commissioner of Domestic Taxes v Barclays Bank of Kenya Limited (Civil Appeal No. 195 of 2017). 40. The Respondent submitted that strict construction of a taxing statute does not entitle a taxpayer to exploit a temporary procedural order, which has since been resolved by the substantive ruling, to permanently avoid a tax liability that is plainly imposed by statute. 41. That the Appellant’s approach of manually adjusting its production volumes to neutralize the effect of the iTax-configured rate was not a legitimate exercise of compliance. That it was a unilateral manipulation of the stock account that created the variance now in dispute. 42. Without prejudice to the foregoing, the Respondent submitted further that even if the Appellant were to succeed on the rates argument (which is denied), the Appellant has not, at any stage, discharged the burden of proof required to demonstrate that the assessment of Kshs. 25,148,500 is incorrect. 43. The Respondent stated that: a.Its assessment is founded on a physical stock verification exercise conducted by the Commissioner at the Appellant's premises on 4th March 2025. Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 10 of 24 b.The Appellant's own EGMS production data and iTax declarations were used to establish the stock movement. c. The variance between the declared closing stock in iTax and the physical stock count was established at 30,492,608 litres. d.After reconciliation of 25,641,213.97 litres of that variance, the unreconciled balance stood at 4,851,394.03 litres, of which 3,923,323 litres is attributable to the inflationary adjustment discrepancy. e.This is primary evidence of the highest order, a direct physical verification at the Appellant's own premises, based on the Appellant's own production and delivery records. 44. That the burden fell on the Appellant to produce primary documents establishing that this 3,923,323-litre variance does not attract Excise Duty at the applicable rate. That the Appellant has not done so. 45. That during the ADR process, the Appellant availed two categories of documents: a Stock Analysis and sample DEFCO invoices. That these documents were produced to address the DEFCO exempt sales and accidental breakages portions of the stock variance, and those issues were resolved through the Partial Consent. 46. That no primary documentation whatsoever was produced by the Appellant in respect of the inflationary adjustment variance of 3,923,323 litres, not during the audit, not during the objection stage, and not during the ADR process. 47. That the Appellant's sole position in respect of this variance has been the legal argument that the rates under Legal Notice No. 217 of 2021, which is no longer applicable. Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 11 of 24 48. The Respondent postulated that, without primary documents supporting an alternative position, the burden under Section 56(1) of the Tax Procedures Act, 2015, cannot be discharged. 49. That primary documents are what is required to discharge the evidential burden as was explained in Citibank N.A. Kenya Branch v Commissioner of Domestic Taxes (Civil Appeal No. E033 of 2024) and in Commissioner of Investigations and Enforcement v Evans Kidero (Income Tax Appeal E028 of 2020) [2022] KEHC 52 (KLR). 50. The Respondent averred that the Appellant has failed to discharge the burden imposed by Section 56(1) of the Tax Procedures Act, 2015, and the assessment of Kshs. 25,148,500 must accordingly stand. Respondent’s Prayer 51. The Respondent prayed that the Tribunal i. Upholds the Respondent’s objection decision dated 15th August 2025, confirming the demand for Kshs. 34,207,180 for the period March 2025. ii. Dismisses this Appeal with costs to the Respondent as the same is without merit. PARTIAL CONSENT 52. Parties signed a partial consent dated 5th March 2026, wherein the appeal was marked as settled under the following terms: “PURSUANT TO the Alternative Dispute Resolution Agreement dated 6th February 2026, the Appeal be marked as partially settled under the following terms: - Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 12 of 24 a) THAT the Excise tax of Kshs. 25,148,500 relating to the 3,923,323 litres, which arose out of inflationary adjustments be referred to TAT for full hearing and determination. b) THAT the Appellant concedes to a total Excise duty liability of Kshs. 4,683,506 comprising of principal tax of Kshs.4,037,505, penalty of Kshs. 201,875 and interest of Kshs. 444,126. c) THAT the Appellant conceded to principal tax for Kshs. 1,911,430 arising out of accidental breakages. d) THAT the Appellant is cognizant of the fact that the interest may vary upon amendment of the assessment in the iTax system and is agreeable to this variation. e) THAT the Appellant undertakes to pay the agreed total tax liability of Kshs. 4,683,506 in two (2) instalments as shown below: - Principal Due date Amount 1st 25th February 2026 2,341,753 Instalment (Now past) 2nd 25th March 2026 2,341,753 Instalment Total 4,683,506 Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 13 of 24 f) THAT where the Appellant fails to fulfil its part of the obligation, the Respondent shall be at liberty to enforce the performance of the agreement. g) THAT each party to bear its costs, if any.” 53. It is clear from this partial consent that the only issue that has thus been referred to the Tribunal for determination relates to the excise tax of Kshs 25,148,500 relating to 3,923,323 litres which arose out of inflationary adjustments. ISSUES FOR DETERMINATION. 54. The Tribunal has considered the parties’ pleadings, submissions, and documents submitted and is of the view that the issues falling for determination are: a.Whether the Respondent’s additional assessment disregarded/disobeyed the stay orders/rulings issued by the High Court. b.Whether the Respondent’s assessments were time- barred. c. Whether the Respondent’s additional excise duty was justified, ANALYSIS AND DETERMINATION. 55. The Tribunal shall proceed to analyse the identified issues sequentially as follows: Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 14 of 24 A. Whether the Respondent’s additional assessment disregarded/disobeyed stay orders / rulings issued by the High Court. 56. It is clear to the Tribunal that the following cases affirmed that Legal Notice No. 217 of 2021 was suspended between 19th November 2021 to 25th August 2024; a.Republic v National Environment Tribunal, Ex parte Palm Homes Ltd and another, 2013 eKLR; b.Kenya Breweries Limited v Commissioner of Domestic Taxes, (TAT 668 of 2022) [2023] c. Commissioner of Domestic Taxes v London Distillers (K) Limited. d.Commissioner of Domestic Taxes v Excel Chemicals Limited [2024] KEHC 2440 (KLR) 57. The suspension of Legal Notice No. 217 of 2021 was set aside on 26 August 2024 in Pubs, Entertainment and Restaurants Association of Kenya & 2 others v National Assembly & 5 others; Kenya Association of Manufacturers (Interested Party) [2024] KEHC 10396 (KLR), when the court stated that: “... I thus review and set aside the order.” 58. A reading of the judgment in Pubs, Entertainment and Restaurants Association of Kenya & 2 others v National Assembly & 5 others; Kenya Association of Manufacturers (Interested Party) [2024] KEHC 10396 (KLR), makes it clear that: i. The Legal Notice No. 217 of 2021 became valid and operational on 26th August 2024. Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 15 of 24 ii. The rates introduced by Legal Notice No. 217 of 2021 became valid and applicable. iii. That the status quo conservatory orders issued and confirmed in previous case laws ceased to have effect. 59. The Respondent in this appeal issued its assessment on 7th May 2025, and the physical stock verification was carried out on 4th March 2025. It is thus clear that the said assessment was issued after the orders of stay had been lifted. 60. Accordingly, the Respondent did not disregard or disobey the stay orders/rulings of the High Court when it applied Legal Notice No. 217 of 2021 and issued an additional duty assessment on the Appellant’s supplies. B. Whether the Respondent’s assessments were time- barred. 61. It is now trite that the Respondent can audit, amend, or issue tax assessments within five years from the date a taxpayer submits their self-assessment return. That once this window closes, the tax becomes time-barred and irrecoverable unless there is clear evidence of fraud, willful neglect, or tax evasion. 62. This position is set out in Section 31(4) of the TPA, which provides as follows in relevant part: “Section 31(4)(b)(ii) of the Tax Procedures Act provides: The Commissioner may amend an assessment— (b)in any other case, within five years of— (ii)for a self-assessment, the date that the self- assessment taxpayer submitted the self- Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 16 of 24 assessment return to which the self-assessment relates” 63. Section 23 provides as follows regarding record keeping: “A person shall— (a) maintain any document required under a tax law, in either of the official languages; (b) maintain any document required under a tax law so as to enable the person's tax liability to be readily ascertained; and (c) subject to subsection (3), retain the document for a period of five years from the end of the reporting period to which it relates or such shorter period as may be specified in a tax law.” 64. The law is thus clear that assessment can only go back 5 years, and a taxpayer is also only required to keep records for a period of 5 years from the end of the reporting period. 65. Excise duty is a monthly tax assessment, due and declared on the 20th of each succeeding month. The additional assessment in this appeal was issued on 7th May 2025, meaning that the reporting date for the April assessments was not due as at 7th May 2025. 66. Consequently, computation of time would commence from March 2025, going backwards to cover March assessments, which were accounted for on 20th April 2025. This means that lawful assessment could only run backwards to March 2020. Similarly, the Appellant was only obliged to keep records regarding this assessment up to March 2020. Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 17 of 24 67. Accordingly, any assessments or records demanded for the years 2018 and 2019 related to adjustments and sales were unlawful and statute-barred unless fraud, willful neglect, or tax evasion was pleaded and proved. In this appeal, these three items of fraud, willful neglect, or tax evasion were neither pleaded nor proved. This was clarified in Fabro Ltd v Commissioner [TAT Appeal No. 132 of 2023] where the following was emphasized: “The reopening of assessments outside the limitation period must not be whimsical. Without demonstrable fraud or willful neglect, the taxpayer’s position becomes immutable after five years.” 68. The fact that an assessment ought not be issued beyond five years was also discussed in Patel v Commissioner for Legal Services & Board Co-ordination Services (Tax Appeal E628 of 2025) [2025] KETAT 420 (KLR) (28 November 2025) (Judgment) where the Tribunal held as follows. “The Tribunal is of the considered view pursuant to the provisions of Section 31(4) of the TPA that the Respondent is prohibited from amending assessments for taxes the period whereof is beyond 5 years.” 69. Consequently, it is the finding of the Tribunal, as supported by the cases of Patel and Fabro, that the Respondent’s assessments for the years beyond March 2020 going backwards and any demand for documents beyond March 2020 were statute-barred and unlawful for contravening Section 31(4)(b)(ii) and Section 23 of the Tax Procedures Act. C. Whether the Respondent’s additional excise duty was justified, Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 18 of 24 70. The Respondent stated in its Memorandum of Appeal that the Respondent has erred in fact and in law by including the accidental breakages and DEFCO sales for the years 2018 and 2019, which fall beyond the statutory period of limitation of five years. 71. The Respondent affirmed that it had requested the Appellant to provide the following documents in support thereof vide email on 6th August 2025. a) Schedule showing computation of DEFCO sales of Kshs. 2,608,642.80 liters as per the Appellant’s reconciliation. b) Supporting documents for DEFCO sales, including invoices, delivery notes, sales orders, and contract agreements. c) Schedule showing computation of breakages with a value of Kshs. 1,13,068 as per your reconciliation. d) Supporting documents for breakages, including approvals from relevant government agencies for the destruction of goods and other relevant internal approvals. 72. That the documents were requested via an email dated 6th August 2025, and the Appellant responded via email of 12th August 2025, which only provided invoices for DEFCO for 2023 and not for the years 2018 and 2019, which required reconciliation. 73. The law as it requires the Appellant to keep and provide documents relating to his tax affairs when so demanded by the Respondent. This is apparent in Section 59 of the Tax Procedures Act (Cap 469B) which provides as follows regarding the Appellant’s duty to produce documents and records as may be sought by the Respondent: - Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 19 of 24 (1) For the purposes of obtaining full information in respect of the tax liability of any person or class of persons, or for any other purposes relating to a tax law, the Commissioner or an authorised officer may require any person, by notice in writing, to – (a) produce for examination, at such time and place as may be specified in the notice, any documents (including in electronic format) that are in the person's custody or under the person's control relating to the tax liability of any person; (b)furnish information relating to the tax liability of any person in the manner and by the time as specified in the notice; or (c) attend, at the time and place specified in the notice, for the purpose of giving evidence in respect of any matter or transaction appearing to be relevant to the tax liability of any person. 74. Besides, Section 30 of the TAT Act also requires the Appellant to discharge the burden of proof to show that it provided the demanded documents and that they were disregarded by the Respondent; or that the documents he has been requested to provide are either irrelevant or are not part of the documents he uses in his business activities or operations. 75. Section 30 of the Tax Appeals Tribunal Act (Cap 469A) provides as follows on the Appellant’s burden of proof: - In a proceeding before the Tribunal, the Appellant has the burden of proving—(a)where an appeal relates to an assessment, that the assessment is excessive; or Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 20 of 24 (b)in any other case, that the tax decision should not have been made or should have been made differently. In any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect. 76. The Tribunal has gleaned through the Appellant’s record of appeal and it notes as follows: a. That besides its assertions that it had provided documents to support its objection, no evidence was provided to support this assertion. b. The Appellant has not disputed the fact that it provided some of the documents at the ADR stage and that the said documents were considered, resulting in the partial consent dated 5th May 2026, which varied the additional assessment downwards. 77. Additionally, there is no evidence to show that any of the documents that have been submitted to the Tribunal were ever tabled before the Commissioner. The High Court has previously cautioned the Tribunal to be careful to ensure that it does not consider documents that were never sighted by the Commissioner in arriving at its decision. 78. Accordingly, in the absence of evidence that these documents attached, which were marked as Appendix VIII, were ever shared with the Respondent, the Tribunal shall disregard them, as affirmed in the recent decision of Commissioner of Investigation & Enforcement v Wamunyinyi [2026] KEHC 379 (KLR) where the court held as follows” Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 21 of 24 “Guided by the above, I find that the Tribunal erred in law by admitting and relying on evidence that was not placed before the Commissioner at the objection stage. This error goes to the heart of the objection review process and undermines the Commissioner’s statutory mandate to assess tax based on information provided by the taxpayer.” 79. The burden in this appeal has not swung. The Appellant has not provided any persuasive evidence to prove that it provided the Respondent with sufficient documents and evidence to make it reconsider its assessments. This failure to provide positive evidence means that the Respondent’s assessment, which often has a presumptive notion of correctness, has not been impeached, as was explained in Mugo -vs- Commissioner of Domestic Taxes (TAT E918 of 2024) KETAT 374 (KLR) where it held as follows: As noted hereinabove, the Appellant failed to adduce positive documents to demonstrate that the Respondent’s decision was incorrect. Consequently, the Tribunal finds and holds that the Respondent’s decision was justified and that the Appellant failed to discharge its burden of proof contrary to Section 30 of the Tax Appeals Tribunal Act, 2013 (TATA) and Section 56(1) of the Tax Procedures Act; thus, the appeal is not successful.” 80. He who asserts must prove. The Appellant has engaged in mere assertions in this appeal without providing evidence to show that it provided sufficient information to the Commissioner to amend or extinguish its assessment, contrary to the dicta in Commissioner of Domestic Taxes v Dinesh Construction Limited (Income Tax Appeal E220 of 2024) [2025] KEHC 17058 (KLR) (Commercial and Tax) (21 November 2025) (Judgment) where it was stated that; Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 22 of 24 “A mere statement in pleadings is not evidence.” 81. The Appellant’s failure to prove that it had provided the documents that had been requested of it, or that the documents requested of it were not relevant, or to table any other sort of evidence before the Commissioner and share that evidence with the Tribunal means that it has failed to discharge the burden of proof that has been placed on it under Section 30 of the TAT Act. 82. Accordingly, the Tribunal finds and holds that the Respondent was justified in issuing additional assessments against the Respondent, but limited to the period allowed in law under Section 23 as read with Section 31(4) of the TPA, between the period of March 2020 to April 2025. DISPOSITION 91. The upshot of the foregoing analysis is that the Tribunal finds and holds that the appeal is partially merited and shall proceed to make the following Orders: a. The Appeal be and is hereby partially allowed. b. The Respondent’s Objection Decision dated 15th August 2025 be and is hereby varied as follows: i. The assessments that are related to and dependent on documents/records for the years March 2020 going backwards be and are hereby set aside. ii. The assessments related to documents for the years from March 2020 to April 2025 be and are upheld. Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 23 of 24 c. The Respondent be and is hereby directed to issue a fresh objection decision aligned to the orders (b) above within 30 days from the date of this judgment. d. Each Party is to bear its own costs. 92. It is so ordered. DATED and DELIVERED at NAIROBI this ………26th ...……. Day of …… June..…… 2026 ..........................………………………. DR. RODNEY ODHIAMBO OLUOCH CHAIRPERSON .…..….……………………. ………………………. CYNTHIA B. MAYAKA MEMBER ..…. DR. ERICK KOMOLO MEMBER ……………………………… ABDULLAHI DIRIYE MEMBER Judgement TAT No. E1127 of 2025 Almasi Bottlers Limited Vs Commissioner of Domestic Taxes Page 24 of 24