[2022] KEHC 9927 (KLR)

Commissioner of Domestic Taxes v Trical and Hard Limited (Tax Appeal E146 of 2020) [2022] KEHC 9927 (KLR) (Commercial and Tax) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9927 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Tax Appeal E146 of 2020

DAS Majanja, J

July 8, 2022

Between

Commissioner of Domestic Taxes

Appellant

and

Trical and Hard Limited

Respondent

(Being an appeal against the Judgment of the Tax Appeals Tribunal at Nairobi dated 18th September 2020 in Tax Appeal No. 320 of 2018)

Judgment

Introduction and Background 1. The Respondent is a limited liability company involved in general trading of goods. Sometime in 2018, the Appellant (“the Commissioner”) profiled the Respondent as a beneficiary of the ‘missing traders’ invoice scheme whereby several businesses were registered with the sole aim of fictitious invoicing with no actual sale being made. The Commissioner conducted investigations into the tax affairs of the Respondent with a view of ensuring due tax compliance with the tax provisions for the period 2013-2018.

2. On 31st May 2018, the Commissioner issued additional assessments on VAT for the months February – March 2017, June 2016 and November 2016 being KES 867,943. 00 and further additional assessments on 12th June 2018 in respect of Corporation Tax for the period 1st April 2016 to 31st March 2017 being KES 1,644,267. 00. The Commissioner states that it examined invoices from five companies implicated in the missing traders scheme and noted that no deliveries were made to the Respondent and that the said invoices were unsupported by actual delivery and payment of the goods to prove the purchase. The Commissioner accused the Respondent of claiming input VAT on supplies that were never made to it and only held tax invoices and/or ETR receipts, which were never accompanied by actual supplies and were only fictitious to allow the Respondent claim input VAT to reduce its tax liability.

3. The Respondent objected to the additional assessments through its letter dated 27th June 2018 on the grounds that they contravened section 15(1) of Income Tax Act (Chapter 470 of the Laws of Kenya) (“the ITA’’) on allowable business costs and section 17(1) of the VAT Act, 2013. That the said suppliers issued VAT receipts generated by the Electronic Tax Registers and filed with the Commissioner and that they filed and claimed input VAT on a monthly basis as confirmed by the Commissioner. The Respondent admitted that it did business with the said suppliers and that it had all the relevant documentation as required by law to support the said transactions and that the Respondent had complied with all statutory obligations and had paid taxes where due. The Respondent further impugned the assessments for being based on preliminary findings without any factual basis and were thus erroneous and without legal basis. The Respondent also stated that said suppliers were duly registered with the Commissioner and that this could be confirmed online using the PIN checker.

4. The Respondent attached invoices from various suppliers including the ones flagged by the Commissioner. It stated that from the attached invoices, the Respondent did not have capacity to know which supplier was not complying with its tax obligations. Further, that the attached invoices demonstrated that these were cost of sales to generate income as reflected in the respective Income Tax and VAT Returns which are allowable deductions under section 15(1) of the ITA. The Respondent relied on section 17(1) and (3) of the VAT Act, 2013 to aver that it is registered for VAT and did make taxable supplies charging VAT thereof and that it claimed input VAT from its suppliers within the stipulated time by law. Further, that the Respondent was in possession of original tax invoices issued for the suppliers and it was therefore entitled to claim the input VAT as it did.

5. To further support its position, the Respondent furnished the Commissioner with further documents including copies of invoices issued for each purchase, copies of delivery notes for each purchase and copies of payment records and client statements.

6. In a letter dated 18th September 2018, the Commissioner rendered its Objection Decision (“the Objection Decision”). The Commissioner held that notwithstanding the Respondent’s assertion that it had maintained full records for the purchases disallowed, the Commissioner maintained that it had established that there was no supply of taxable goods made by the suppliers highlighted in its earlier letter. As such, the Commissioner confirmed the assessments of KES 876,943. 57 in respect of VAT and Corporation tax of KES 1,644,267. 00 together with the resultant penalty and interest.

7. The Respondent lodged an appeal with the Tax Appeals Tribunal (“the Tribunal”) on 13th October 2020. Having carefully studied the parties’ pleadings and all the documents attached to the appeal and after hearing the submissions, the Tribunal was of the view that the issues for determination were; Whether the Objection Decision with respect to the Corporation Tax Assessment was valid, whether the Commissioner erred in its decision to disallow input VAT and whether the Commissioner erred in assessing additional Corporation Tax after disallowing the input VAT Claim.

8. On the first issue, the Tribunal noted that the objection was received by the Commissioner on 29th June 2018 and the Objection Decision was to be made on 28th August 2018 instead of 18th September 2018. It observed that the parties were in communication and this is what led to the Respondent providing additional information to the Commissioner on 20th July 2018. The Tribunal therefore absolved the Commissioner of any negligence and coupled with the fact that the delay was not inordinate. Guided by Article 159(2)(d) of the Constitution, the Tribunal ultimately found that the Objection Decision valid.

9. On the second issue, the Tribunal set for itself three tests; Whether the Respondent furnished sufficient proof of purchase, whether the Respondent‘s right to claim VAT was affected by the presence of fraud in the supply chain and whether the Respondent knew or should have known that there was fraud. The Tribunal was of the view that the Commissioner’s interpretation of section 17 of the VAT Act in respect of input tax was correct that indeed, the right to claim input tax is hinged upon the underlying requirements of the transaction as outlined in the VAT Act being met. That input tax can only be claimed where it was incurred in the purchase of taxable goods meaning that for a taxpayer to deduct input tax, it must have actually made a purchase and it is not merely enough to have documentation and that the documentation must be supported by an underlying transaction and the taxpayer must furnish proof that there was an actual purchase.

10. The Tribunal underlined section 30 of the Tax Appeals Tribunal Act (“the TATA’’) which places the burden of proof on the taxpayer to submit all the necessary documentation to support its case and that once the taxpayer adduces evidence that discharges his burden, then the burden shifts to the Commissioner. However, the Tribunal held that although the current tax laws provide that the burden of proof lies with the Respondent to prove that tax was paid or that the Commissioner’s assessment was wrong, it could not have been the intention of the legislature to put the taxpayer in a position where he would be required to produce any document that the taxman may require. That in demanding the production of documents that are not prescribed by legislation, the tax authority should be guided by reasonableness, the nature and circumstances of the trader otherwise it would, as it occasionally does, demand information ad nauseum.

11. The Tribunal noted that the Respondent furnished the Commissioner with the documents detailing the transactions as provided by section 17 of the VAT Act and further provided bank records, delivery notes and payment records and that this evidence established prima facie that it indeed purchased the said goods. The Tribunal held that the Commissioner did not rebut this evidence and that even though the Commissioner insisted that its investigations established a missing trader scheme of which the Respondent was a beneficiary, the evidence of this investigations was not tabled before it and that all the Tribunal had was the Commissioner’s assertions. The Tribunal was of the view that the Commissioner ought to have furnished information to prove that the invoices submitted by the Respondent to support its claim were fictitious and that it was not enough to just allege that the documents presented were fictitious. The Tribunal therefore concluded that the Respondent had furnished sufficient proof of purchase.

12. As to whether the Respondent‘s right to claim VAT was affected by the presence of fraud in the supply chain, the Tribunal relied on the European Court of Justice cases in Optigen Ltd, Fulcrum Electronics Ltd and Bond House Systems Ltd v Commissioners of Customs & Excise [2006] EUECJ C-354/03 and Axel Kittel v Etat beige and Etat beige v Recolta Recycling SPRL [2006] ECR [-0616] to hold that the Respondent‘s right to claim VAT is not affected by the presence of fraud in the supply chain unless it had knowledge of fraudulent acts of its suppliers and that the mere fact that there is suspicion that the Respondent's suppliers were engaged in fraud does not extinguish its right to claim input VAT. That this right can only be extinguished if the Respondent knew or ought to have known that the transaction was part of a fraudulent scheme and the mere fact that the VAT charged by the Respondent's suppliers was not submitted to the Commissioner was irrelevant to its exercise of claiming input tax that it incurred. Consequently, the Tribunal found that the Respondent's right to claim VAT was not affected by the presence of fraud in the supply chain unless it had knowledge of fraudulent acts of its suppliers.

13. The Tribunal also relied on the United Kingdom’sVAT& Duties Tribunal’s case in Calltell Telecom Ltd v HMRC [2007] UKVAT V202666 and section 107 of the Evidence Act (Chapter 80 of the Laws of Kenya) to hold that the burden of proof was upon the Commissioner to establish that there was fraud and that the Respondent knew or ought to have known about it. The Tribunal reiterated that the Commissioner failed to adduce evidence to support its averments of fraud whereas the Respondent produced documents indicating that there was indeed a purchase. Thus, the Tribunal found that the Commissioner did not discharge its burden of proof by establishing knowledge of the fraud on the part of the Respondent and therefore, the Commissioner erred in disallowing input VAT and cost of sales claimed by the Respondent. Having found that the claim for input VAT was allowable, the Tribunal found that the Commissioner erred in assessing Corporation Tax as a result of disallowing input VAT.

14. The Tribunal therefore made dispositive orders allowing the Respondent’s appeal and setting aside the Commissioner’s Objection Decision and consequently vacating the additional assessments. It is this decision that precipitated the filing of the instant appeal by the Commissioner which is grounded on the Memorandum of Appeal dated 26th November 2020. The Respondent responded to the appeal through its Statement of Facts dated 25th January 2021. The parties have also filed written submissions which disposed of the appeal and regurgitate their respective positions summarized above.

Analysis and Determination 15. In determining this appeal, I am cognizant of the fact that this court is exercising appellate jurisdiction that is circumscribed by section 56(2) of the Tax Procedures Act (“the TPA”) which provides that “An appeal to the High Court or to the Court of Appeal shall be on a question of law only”. The Commissioner has rightly cited the decision of the Court of Appeal in John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others [2018] eKLR where the court summarised what amounts to “matters of law” as follows:[38]The interpretation or construction of the Constitution, statute or regulations made thereunder or their application to the sets of facts established by the trial Court. As far as facts are concerned, our engagement with them is limited to background and context and to satisfy ourselves, when the issue is raised, whether the conclusions of the trial judge are based on the evidence on record or whether they are so perverse that no reasonable tribunal would have arrived at them. We cannot be drawn into considerations of the credibility of witnesses or which witnesses are more believable than others; by law that is the province of the trial court.

16. This means that an appeal limited to matters of law does not permit the appellate court to substitute the Tribunal’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the decision of the Tribunal cannot be supported by any evidence.

17. The main issues for determination in this appeal are almost similar to what the Tribunal dealt with, which is whether the Respondent was entitled to the input VAT as claimed, whether the Commissioner erred in assessing additional Corporation Tax after disallowing input VAT and lastly, whether the Tribunal rightly appreciated the provisions of sections 56 and 59 of the TPA, section 30 of the TATA and sections 17 and 43 of the VAT Act, 2013.

18. It is common ground that the issue of ‘missing trader’ is a tax fraud scheme where taxpayers deliberately and fraudulently claim tax rebates from fictitious purchases leading to the taxpayer paying less or no taxes than they should and the Government consequently losing revenue. The parties also agree and understand how the Kenyan VAT system operates. In Highlands Mineral Water Limited v Commissioner of Domestic Taxes ML HC ITA No. E026 OF 2020 [2021] eKLR, the court explained that VAT is a tax chargeable on supply of taxable goods or services made or provided in Kenya and on importation of taxable goods or services into Kenya. It works under the input and output tax system. Output tax refers to the VAT charged on the sales of taxable goods or services, while input tax refers to VAT charged on taxable purchases of goods and services for business purposes. The tax payable is the difference between the output tax and input tax.

19. It is this input tax that the law allows a taxpayer to deduct from their VAT returns that is always subject to abuse and missing trader fraudulent scheme I have highlighted above. In any case, it is common ground that a taxpayer has the right to deduct input tax from its VATable transactions. Whether such a scheme exists must be established by evidence and not mere supposition.

20. The aforementioned position on the VAT system above is anchored under section 17 (1), (2), (3) and (5) of the VAT Act, 2013 which provides as follows:17. Credit for input tax against output tax(1)Subject to the provisions of this section and the regulations, input tax on a taxable supply to, or importation made by, a registered person may, at the end of the tax period in which the supply or importation occurred, be deducted by the registered person, subject to the exceptions provided under this section, from the tax payable by the person on supplies by him in that tax period, but only to the extent that the supply or importation was acquired to make taxable supplies.(2)If, at the time when a deduction for input tax would otherwise be allowable under subsection (1), the person does not hold the documentation referred to in subsection (3), the deduction for input tax shall not be allowed until the first tax period in which the person holds such documentation.Provided that the input tax shall be allowable for a deduction within six months after the end of the tax period in which the supply or importation occurred.(3)The documentation for the purposes of subsection (2) shall be—a.an original tax invoice issued for the supply or a certified copy;b.…………..c.…………..d.………….(4)…………(5)Where the amount of input tax that may be deducted by a registered person under subsection (1) in respect of a tax period exceeds the amount of output tax due for the period, the amount of the excess shall be carried forward as input tax deductible in the next tax period:Provided that any such excess shall be paid to the registered person by the Commissioner where —a.such excess arises from making zero rated supplies; orb.such excess arises from tax withheld by appointed tax withholding agents; andc.such excess arising out of tax withheld by appointed tax withholding agents may be applied against any tax payable under this Act or any other written law, or is due for refund pursuant to section 47(4) of the Tax Procedures Act, 2015; andd.the registered person lodges the claim for the refund of the excess tax within twenty-four months from the date the tax becomes due and payable.Provided further that, notwithstanding section 17(5)(d), a registered person who, within a period of thirty-six months prior to the commencement of section 17(5)(b) and (c), has a credit arising from withholding tax, may make an application for a refund of the excess tax within twelve months from the commencement date.

21. Section 43 of the VAT Act, 2013 provides for the requirement that a tax payer is required to maintain records and that the Commissioner has the power to request for the production of such records as follows:43. Keeping of records(1)A person shall, for the purposes of this Act, keep in the course of his business, a full and true written record, whether in electronic form or otherwise, in English or Kiswahili of every transaction he makes and the record shall be kept in Kenya for a period of five years from the date of the last entry made therein.(2)The records to be kept under subsection (1) shall include—(a)copies of all tax invoices and simplified tax invoices issued in serial number order;(b)copies of all credit and debit notes issued, in chronological order;(c)purchase invoices, copies of customs entries, receipts for the payment of customs duty or tax, and credit and debit notes received, to be filed chronologically either by date of receipt or under each supplier’s name;(d)details of the amounts of tax charged on each supply made or received and in relation to all services to which section 10 applies, sufficient written evidence to identify the supplier and the recipient, and to show the nature and quantity of services supplied, the time of supply, the place of supply, the consideration for the supply, and the extent to which the supply has been used by the recipient for a particular purpose;(e)tax account showing the totals of the output tax and the input tax in each period and a net total of the tax payable or the excess tax carried forward, as the case may be, at the end of each period;(f)copies of stock records kept periodically as the Commissioner may determine;(g)details of each supply of goods and services from the business premises, unless such details are available at the time of supply on invoices issued at, or before, that time; and(h)such other accounts or records as may be specified, in writing, by the Commissioner.(3)Every person required under subsection (1) to keep records shall, at all reasonable times, avail the records to an authorised officer for inspection and shall give the officer every facility necessary to inspect the records.(4)For the purposes of this section, the Commissioner may, in accordance with the regulations, require any person to use an electronic tax register, of such type and description as may be prescribed, for the purpose of accessing information regarding any matter or transaction which may affect the tax liability of the person.(5)A person who contravenes any of the provisions of this section commits an offence.

22. Section 59 (1) of the TPA also provides that a tax payer shall produce records when required to do so by the Commissioner as follows:Production of records(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.

23. It is also not in dispute that section 30 of the TATA and section 56 of the TPA impose the burden of proof on the tax payer to prove that an assessment is excessive or a tax decision is incorrect. All these provisions must be read holistically hence I am in agreement with the dictum in Okiya Omtatah Okoiti v Attorney General & another NRB HC Petition No. 156 of 2017 [2020] eKLR where the court held that a section or sections of a law should not be read in isolation of the other provisions of that law particularly where they deal with the same subject.

24. The core of this appeal is that the Commissioner impugned the records and documentation submitted by the Respondent. It maintained that no supplies were actually made in support of those records. The question before the court that was also before the Tribunal was whether the Respondent sufficiently discharged its burden when it availed those records to the Commissioner as proof of supply.

25. I agree with the Tribunal’s holding that the burden of proof in tax matters is not stationary but is like a pendulum swinging between the taxpayer and taxman at different points but more times than not swings towards the taxpayer. The uniqueness of our tax system in placing the evidential burden of proof on the tax payer is neither a mistake nor is it unconstitutional. In Republic v Kenya Revenue Authority; Proto Energy Limited (Exparte) (Judicial Review Application E023 of 2021) [2022] KEHC 5 (KLR) (24 January 2022) (Judgment) the court stated that:The most significant justification for placing the burden of proof on the tax payer is the practical consideration that the Commissioner cannot sustain the burden because he does not possess the needed evidence. Under the system of self-reporting tax liability, the taxpayer possesses the evidence relevant to the determination of tax liability. It is simply fair to place the burden of persuasion on the taxpayer, given that he knows the facts relating to his liability, because the commissioner must rely on circumstantial evidence, most of it coming from the taxpayer and the taxpayer's records. The taxpayer must present a minimum amount of information necessary to support his position. This safety valve seems to place the burden of production on the taxpayer without relieving the Commissioner of the overall burden of proof. The tax payers’ evidence must meet this minimum threshold.A presumption of correctness arises from the Commissioner’s determination/assessment. The presumption remains until the taxpayer produces competent and relevant evidence to support his/her position. When the taxpayer comes forward with such evidence, the presumption vanishes and the case must be decided upon the evidence presented.

26. From the above, it is clear that the evidential burden of proof rests with the taxpayer to disprove the Commissioner and that once competent and relevant evidence is produced, then this burden now shifts to the Commissioner. I have emphasized and underlined ‘competence’ and ‘relevance’ because it is only evidence that meets these two tests that demolishes presumption of correctness and swings the burden to the Commissioner. This means that even if one avails evidence but then it is found that the same is incompetent or irrelevant, then the burden continues to remain with the tax payer.

27. In this case, the Commissioner accused the Respondent for being part of the missing trader scheme and being involved in transactions where no supplies were actually made and that all the Respondent had were tax invoices from the flagged companies meant to reduce the Respondent’s tax liability. With this assertion, the burden swung to the Respondent to prove the Commissioner wrong. In this attempt, the Respondent availed documents including copies of invoices issued for each impugned purchase, copies of delivery notes for each impugned purchase and copies of payment records and client statements. Once these documents were availed, the burden shifted to the Commissioner. When the Commissioner reviewed the said documents it maintained its position that there was no supply notwithstanding the documents availed, meaning it directly challenged the competence, relevance and veracity of the evidence produced. I find that once this was done, the burden shifted back to the Respondent to disprove the Commissioner because as I have stated, only competent and relevant evidence can demolish the presumption of the Commissioner’s correctness and shift the burden to the Commissioner.

28. In rejecting the evidence produced by the Respondent, can it be said that the Commissioner was unreasonable or that it had to accept the Respondent’s evidence regardless? I do not think so. Had it been the position that the Commissioner is obliged to accept all and any document submitted to it as evidence, one can imagine the proliferation of fake and bogus documents by tax payers in a bid to cheat the tax system. Another issue raised by the Tribunal and the Respondent was that in declining the Respondent’s evidence, the Commissioner ought to have made available its investigation report to the Respondent and the Tribunal. While this is desirable, I do not think it was obligatory. A report is a record of the investigations and not necessarily the primary evidence leading to the conclusion of fraud. The fraud alleged can be proved by any other evidence produced through witness statements and affidavits. This position was taken by the Court of Appeal in Total Kenya Limited v Kenya Revenue Authority NRB CA Civil Appeal No. 148 of 2013 [2018] eKLR which also dealt with a similar issue where the appellant therein had claimed to have paid import duty and submitted copies of Import Entries of the consignments it claimed to have paid. Investigations by the respondent therein revealed a different story in that the import documents as well as the receipt were all forgeries since they related to a different consignment as opposed to the subject of the demand. This position was not countered by the appellant and the appellate court found that indeed fraud had been proved and that it was specifically pleaded by the respondent in its replying affidavit. In this case, the Commissioner adduced evidence by one of its officers who outlined details of its investigations and how it was established that there were no deliveries that were made to the Respondent as claimed in the invoices. This evidence was not countered by either a witness statement, affidavit or such documents from the Respondent responding to the Commissioner’s allegations. It would have even sufficed for the Respondent to call the flagged companies as witnesses before the Tribunal or obtain such statements or letters from them to prove that they indeed supplied goods to the Respondent. Thus, it is not correct that there was no ‘evidence’ of fraud before the Tribunal merely because the investigation report was not tabled before it.

29. Further, investigation reports may contain matters of a confidential in nature, for example sources of information, method of investigation and matters not relevant to the issue at hand. The report may also involve ongoing investigations that may touch on other entities not party to the subject proceedings and thus disclosing the report to third parties may scuttle or prejudice such investigations, sources and investigation methods (see Commissioner of Domestic Services v Galaxy Tools Limited ML ITA No. E088 of 2020 [2021] eKLR)

30. I therefore disagree with the decision of the Tribunal and find that the Respondent did not discharged its burden of proof before the Commissioner and the Tribunal when the competence, relevance and veracity of its evidence was challenged meaning that the presumption of correctness of the Commissioner’s decision remained as such. I further hold that where the veracity and authenticity of the documents availed have been called into question by the Commissioner, the burden shifted back to the taxpayer, in this case the Respondent, to prove the Commissioner wrong. There is a concern that the Commissioner may request for documents ad nauseam. I hold that the Commissioner has a duty to act reasonably and where it shown that the request is unreasonable in the circumstance, the Tribunal may reject such a request. The duty to act reasonably is anchored in the right to fair administrative action in Article 47 of the Constitution. The Commissioner is not a conveyor belt for information and documents, it has a right to satisfy itself the documents presented to it by the taxpayer are capable of discharging the burden imposed on it. If the documents are questioned on bona fide and reasonable grounds, then the burden shifts back to the Respondent, as the taxpayer, to disprove the Commissioner and prove that the said documents are genuine and that actual goods were purchased from the said listed suppliers (see Commissioner Investigations and Enforcement v Sangyug Enterprises(K) Limited (Income Tax Appeal E056 of 2020) [2022] KEHC 59 (KLR) (Commercial and Tax) (4 February 2022) (Judgment) and Commissioner of Investigations and Enforcement v Pearl Industries Limited (Tax Appeal E086 of 2020) [2022] KEHC 51 (KLR) (Commercial and Tax) (31 January 2022) (Judgment)).

31. While the general rule or requirement under the sections 107 and 108 of the Evidence Act is he who asserts must prove, it must also be remembered that a person has the burden of proving facts that are peculiarly within its knowledge as provided by section 112 of the Evidence Act which states that, “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” In matters of tax law, this provision is underpinned by the duty of the taxpayer, as shown in the provisions I have outlined elsewhere, to keep specific documents and supply them to the Commissioner upon request.

Conclusion and Disposition 32. For the reasons I have set out above, it is my finding that the Commissioner’s appeal is merited. The Tribunal erred in its interpretation and application of sections 56 and 59 of the Tax Procedures Act, sections 17 and 43 of the VAT Act, 2013 and section 30 of the Tax Appeals Tribunal Act and arrived at the wrong conclusion in this matter. They misapprehended the evidence and facts on record and arrived at a decision that was perverse and warrants the intervention of this court.

33. I allow the appeal and set aside the judgment of the Tribunal dated 18th September 2020 and uphold the Commissioner’s Objection Decision dated 18th September 2018.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF JULY 2022. D. S. MAJANJAJUDGEMs Gitau, Advocate, instructed by Kenya Revenue Authority for the Appellant.Mr Mbaye instructed by Humphrey and Company LLP for the Respondent