[2025] KETAT 159 (KLR)

Fabro Limited v Commissioner for Investigations and Enforcement & another (Tax Appeal E235 of 2024) [2025] KETAT 159 (KLR) (Commercial and Tax) (14 February 2025) (Judgment)

Neutral citation: [2025] KETAT 159 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Commercial and Tax

Tax Appeal E235 of 2024

CA Muga, Chair, BK Terer, EN Njeru, E Ng'ang'a & SS Ololchike, Members

February 14, 2025

Between

Fabro Limited

Appellant

and

Commissioner For Investigations And Enforcement

1st Respondent

Kenya Revenue Authority

2nd Respondent

Judgment

Background 1. The Appellant is a limited liability company incorporated in Kenya and is in the business of general wholesale trade.

2. The first Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, CAP 469 of Kenya’s Laws( hereinafter “the Act”). Under Section 5 (1) of the Act, the second Respondent is an agency of the Government for the collection and receipt of all tax revenue. Further, under Section 5(2) of the Act with respect to the performance of its functions under subsection (1), the Authority is mandated to administer and enforce all provisions of the written laws as set out in Part 1 and 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws (hereinafter the first and second Respondents are hereinafter together referred to as “the Respondent”).

3. The Respondent carried out investigations into the business of the Appellant for the period 2015 to December 2021 with a view of confirming its tax compliance with VAT and PAYE, the Respondent thereafter, issued a tax assessment demand vide letter on 26th October 2023 for VAT and Income tax for years 2015, 2018 and 2021 for Kshs 81,959,436. 00 excluding penalties and interest.

4. The Appellant filed an objection on 24th November 2023. Subsequently, the Respondent issued its objection decision dated 11th January 2024 confirming the assessments.

5. The Appellant being dissatisfied with the Respondent’s objection decision, filed the instant Appeal through the notice of appeal dated and filed on 9th February 2023.

The Appeal 6. The Appellant lodged Memorandum of Appeal dated 22nd February 2024 and filed on 23rd February 2024 highlighting the following grounds of appeal:a.That the Respondent's decision for including the year 2015 in the assessments contrary to sections 29(5) and 23(1) (c) of the Tax Procedures Act, CAP 469B of the Laws of Kenya (hereinafter “TPA”).b.That the Respondent’s decision was illegal for disallowing non-income items in the bank analysis including prepayment and loans advanced to the company.c.That the Respondent erred in law and in fact in holding that the Appellant had not provided sufficient supporting documents for the sales return of goods valued at Kshs 24,020,371. 00 for the year 2021. d.That the Respondent erred in law and in fact in holding that the Appellant had not provided sufficient supporting documents for the supplied of zero-rated VAT goods of Kshs 182,450,000. 00 for the year 2015 in the objection dated 24th November 2023. e.That the Respondent’s decision was illegal, null and void for breaching the clear provisions of the TPA and the Value Added Tax Act, CAP 476 of the Laws of Kenya (hereinafter “VAT Act”).f.The Respondent's decision violated the Appellant’s legitimate expectation of proper and fair administration of tax law by the Respondent to the detriment of the Appellant.g.That the Respondent has continuously violated the Appellant’s right to fair administration action in that:i.The Respondent failed to notify the Appellant of the assessment for the 2015 to 2021; andii.The Respondent subjected the Appellant to harassment and oppression by conducting two parallel processes over the same tax demands.

Appellant’s Case 7. In support of the appeal, the Appellant filed its statement of facts dated 2nd February 2024 and filed on 23rd February 2024. The Appellant’s written submissions dated and filed on 16th October, 2024 were adopted by the Tribunal on 13th November, 2024.

8. The Appellant stated that on or about 26th October 2023, the 1st Respondent notified the Appellant that it had carried out tax investigations on the Appellant resulting in a tax liability of Kshs 81,959,436. 00 The Appellant objected to the said assessment vide an objection dated 24th November 2023 leading to issuance of the objection decision dated 11th January 2024 in which the Respondent rejected most of the Appellant's grounds of objection but adjusted the tax demand to Kshs 79,041,548. 00.

9. The Appellant contended that the Respondent’s objection decision was illegal, unconscionable, oppressive and therefore null and void for the following reasons:a.The Respondent's decision for including the year 2015 in the assessments was contrary to sections 29(5) and 23(1) (c) of the TPA.b.The Respondent's decision was illegal for disallowing non-income items in the bank analysis including prepayment and loans advanced to the company.c.The Respondent erred in law and in fact in holding that the Appellant had not provided sufficient supporting documents for the sales return of goods valued at Kshs 24,020,371. 00 for the year 2021. d.The Respondent erred in law and in fact in holding that the Appellant had not provided sufficient supporting documents for the supply of zero-rated VAT goods of Kshs 182,450,000. 00 for the year 2015 in the objection dated 24th November 2023. e.The Respondent's decision was illegal, null and void for breaching the clear provisions of the TPA and the VAT Act.f.The Respondent's decision violated the Appellants' legitimate expectation of proper and fair administration of tax law by the Respondent to the detriment of the Appellant.g.The Respondent have continuously violated the Appellant’s right to fair administration action in that:i.The Respondent failed to notify the Appellant of the assessment for the 2015 to 2021; andii.The Respondent subjected the Appellant to harassment and oppression by conducting two parallel processes over the same tax demands.

10. The Appellant submitted that the Respondent breached its right to fair administrative action and legitimate expectation. It stated that this was contrary to Article 47 of the Constitution of Kenya, 2010 (hereinafter “the Constitution”).

11. The Appellant submitted that it has a legitimate expectation that the Respondent would administer tax laws fairly. It relied on the case of Kalpana H. Rawal v Judicial Service Commission and 4 others [2015] eKLR in support of the doctrine of legitimate expectation. It submitted that it had a legitimate expectation that the Respondent should have administered the tax laws procedurally and fairly and not in an arbitral and rash manner as they did. This on its own was sufficient ground to allow the Appeal.

12. The Appellant also submitted that the Respondent breached various provisions of the VAT Act in the assessment and in rejecting the Appellant's objection and that further, it provided documents in support of the objection in compliance with section 17 (1), (2) and (3) of the VAT Act.

13. The Appellant also submitted that the decision and assessments offended sections 29(5) and 23(1) (c) of the TPA. The Appellant submitted that the Respondent’s decision was illegal for disallowing non-income items in the bank analysis including prepayment and loans advanced to the company; and that the Respondent erred in finding that the Appellant did not provide documents.

Appellant’s Prayers 14. The Appellant prayed that the Tribunal would allow the Appeal and that the objection decision be set aside with costs.

Respondent’s Case 15. In response to the appeal, the Respondent filed its statement of facts dated 19th March 2024 and filed on 20th March 2024. The Respondent’s written submissions filed on 1st October 2024 were adopted by the Tribunal on 13th November, 2024.

16. The Respondent stated that it carried out investigations into the business of the Appellant for the period year 2015 to December 2021 with a view of confirming its tax compliance. The information from the i-Tax data base showed that the Appellant had under declared both Income tax and VAT turnovers hence necessitating and investigation to be carried out for the period year 2015 to December 2021.

17. That the investigation centred on the review and analysis of financial records and related data for the Appellant. The records reviewed included data from internal databases including i-Tax, third party data including from the Appellant's bankers among others.

18. During the aforesaid investigations, the Respondent discovered that the Appellant had overstated expenses while others were unsupported and their income was under declared respectively and significant variances with respect to income tax, VAT and PAYE.

19. The investigations employed the banking analysis method where the Respondent analysed the banking credits in accounts held at Equity Bank, Diamond Trust Bank and ABC Bank in establishing the taxable income. The Respondent proceeded to make adjustments for non-income credits, VAT and withholding taxes in order to come up with the net bankings as expected income.

20. The Respondent determined the expected income from the net bankings and as per the Appellant's VAT and IT2C declarations in the year 2017 and 2019. The expected income was then compared to the income declared in line with the Appellant's returns.

21. The Respondent subjected the variances to tax at corporation rate of 30% and 25% where applicable. The Respondent established net taxable income using banking method and compared to the turnover declared by the taxpayer in the VAT returns. The variance was charged VAT at 16% and 14% and the team computed the principal taxes at Kshs 81,959,436. 00 The Respondent thereafter issued a tax assessment demand vide letter on 26th October 2023 for VAT and income tax for years 2015-2021 for Kshs. 81,959,436. 00 excluding penalties and interest. The Appellant filed its objection on 24th November 2023.

22. The Respondent stated that it issued a demand for documents in line with the objection lodged through electronic mail for audited financial statements, exempt and zero-rated sales invoices, sales ledgers, ETRS' reports.

23. The Respondent analysed the Appellants' bank accounts domiciled at Diamond Trust Bank, Equity Bank and ABC bank and adjustments done for non-income items and debtors. To arrive at the taxable turnover, the established income from bank was compared to IT2C & VAT turnovers, purchases claimed and IFMIS sales leading to a total tax of Kshs 81,959,436. 00.

24. In addition to that, the Respondent stated that the invoices in support of the transactions which were provided in support of zero-rated goods were reviewed and found to be insufficient since there were no evidence of delivery and lpo's [sic] from the government agencies.

25. The Respondent averred that the Appellant failed to provide all the relevant supporting documents of records and ledgers for the period under review in support of the objection. The Appellant's income and VAT was therefore estimated, as this was the only reasonable basis of assessing the income tax and objection decision dated 11th January 2024 was issued. The Appellant then filed the instant appeal.

26. In response to ground (a) of Memorandum of Appeal and grounds 1-5 of the statement of facts, the Respondent averred that the assessments were correctly issued and conform to the Income Tax Act, CAP 470 of the Laws of Kenya (hereinafter “ITA”). It asserted that the Appellant did not provide any evidence that would have altered the assessment. It added that Section 56(1) of the TPA places the onus of proof in tax objections on the taxpayer who in this case failed to avail evidence that would support a contrary assessment or that would have guided the Respondent in arriving at a different decision.

27. In further response to ground (a) of the Memorandum of Appeal the Respondent averred that examination of the Appellant's records, audited accounts, VAT and income tax returns established that the Appellant failed to declare business income and all its incomes for years of income 2015-2021. The Respondent stated that it is empowered under section 73 of the ITA to bring to charge income where the same is established due.

28. In further response to ground (a) of the Memorandum of Appeal the Respondent asserted that the Appellant made an objection vide a letter dated 24th November 2023 indicating that the assessments were erroneous on account that the Respondent failed to take into account inter and intra bank transfers, loans from business partners, non-taxable transactions among others. However, the Respondent established the following:a.The Appellant had provided supporting documentation which included invoices from suppliers, invoices to customers and expense sample documents upon which an analysis was conducted; andb.Upon review of the Appellant's objections and documents, the Respondent noted that the taxes had been computed based on bank deposits and therefore withholding taxes did not form part of the tax assessments. The Respondent recomputed the taxable income by using bank deposits only against the Appellant's IT2C and VAT turnovers.

29. In response to ground (b) –(c) of the Memorandum of Appeal, and ground 7 of the statement of facts, the Respondent averred that the tax was reached at based on the information available and provided by the Appellant and that the it is empowered by section 29(1) of the TPA to make such decisions.

30. In further response to ground (b) and (c) of the Memorandum of Appeal the Respondent asserted that the Appellant in lodging its objection failed to state the reasons precisely to be addressed in the assessments raised. In addition, the Respondent alleged that the Appellant failed to properly lodge his objection as provided by the section 51 (3) of the TPA.

31. The Respondent averred that the assessment was issued based on the information provided and in light of the inconsistencies within the Appellant's Income and ledgers. It added that section 31 of the TPA empowers it to make alterations to VAT or additions to original assessments from available information for a reporting period based on the best judgment.

32. In additional response to ground (b)- (c) of the Memorandum of Appeal, the Respondent averred that it took into consideration the requirements of the TPA 5-year limit by excluding year 2015, however, upon investigations, the Respondent established significant tax liability in the said year which might have occurred due to gross or wilful neglect, evasion or fraud by the Appellant which it has since failed to discharge. It added that section 29 of TPA empowers it to bring to charge any shortfall of taxes due.

33. In addition, the Respondent averred that investigations carried out revealed that the Appellant was involved in fraud and willful neglect hence cannot now seek the protection of Section 29 (6) of the TPA since it deliberately defaulted on their obligation under the tax law and further that the Appellant committed an offence pursuant to Section 97 (e) of the TPA.

34. In further response to ground (b) – (c) of the Memorandum of Appeal, the Respondent averred that it relied on the provisions of section 23(3) (b) of the TPA which provides that the Appellant has an obligation to maintain records that are required to answer queries relating to investigations which lead to issuance of Assessments. The Respondent also relied on provision of section 31(4) (a) of the TPA which allows the Commissioner to expand the period of investigations in cases of gross or wilful neglect, evasion or fraud by a taxpayer. In this case, the Respondent alleged that it established that the Appellant failed to account for all the income reviewed during the period.

35. The Respondent asserted that the time limit codified in statute that is the five-year statutory period which in which the taxpayer must keep records and bar the Commissioner not to make assessments beyond a period of five years from the date of issuance of assessments unless in cases of wilful neglect, evasion or fraud by a taxpayer as illustrated in the case of Commissioner Investigations and Enforcement Versus Evans Odhiambo Kidero TAT Appeal no 028 of 2020.

36. In response to ground (d) of Memorandum of Appeal, and ground 8-10 of statement of facts, the Respondent submitted that the Appellant despite declaring some income knowingly continued to under declare income for the period under review contrary to the provisions of the ITA. The Respondent averred that sections 54A (1) and 55 (2) of the ITA provide that it is the responsibility of any person carrying on business to maintain records of all transactions.

37. In further response to ground (d) of the memorandum of appeal, the Respondent insisted that the Appellant filed all necessary returns and paid what they had assessed themselves to be payable. The Respondent averred that the Appellant was uncooperative in the provision of relevant records and failed to respond to request of documents hence no relevant documents or records were provided to support their objection by the Appellant. As a result, the assessment were made based on the only available information based on the best judgement by the Respondent. It added that section 59 (1) the TPA empowers the Respondent or require production of such documents vide issuance of notice as deemed necessary in determination of tax liability.

38. Further, the Respondent averred that the business receipt provided as evidence by the Appellant were reviewed and it was noted that the said prepayment was paid on 12th February, 2018 which meant that the permit was to cover for the year 2018 and therefore it was not considered as a prepayment in the trade debtors.

39. In further response to ground (d) of the memorandum of appeal, the Respondent stated that the acquired loan from Otieno Okeyo and Co. in the year 2015 by the Appellant was disregarded for reasons that funds were deposited on a particular day and repaid the following day. The Respondent noted that at objection review, the Appellant failed to provide further documentation in support of inter and intra bank transfers, loans from business partners and non-taxable transactions claimed to be disallowed contrary to provisions of Section 23 of the TPA which places burden of proof on the Appellant to substantiate its allegation.

40. In response to ground (e)-(f) of memorandum of appeal and ground 6 of statement of facts, the Respondent submitted that the appellant did not file income tax returns for the accounting period 2015-2021 in contravention of the requirements of sections 94(1) and 95 of the TPA and that the estimated assessment was correct.

41. In response to ground 9-11 [sic] the statement of facts, the Respondent averred that examination of the Appellant's records established that the Appellant earned income from supply of service in the period under audit, however, these incomes were not declared for tax purposes for the year earned. The Respondents also asserted that the Appellant carried on business in contravention of sections 42(1), 43(1) and 93(1) of TPA which requires such documents be maintained and for purposes of taxation.

42. In further response to ground (e)-(f) of Memorandum of appeal, the Respondent reiterated that the Appellant failed to provide signed financial statements and books to support its allegations. The Respondent noted that section 24(1) and (2) of the TPA empowers the Respondent to carry out assessment based on the information available.

43. In response to ground 6 of the statement of facts, the Respondent denied that the Appellant has paid all its tax dues and reiterated that because of its under-declaration, the Appellant is in debt of Kshs 79,041,548. 00 Therefore, the Respondent averred that the Appellant is undeserving of the prayers sought.

44. In addition to the statement of facts, the Respondent relied on its written submissions wherein it submitted that it took into consideration all-additional information availed before making the decision.it added that the Appellant under declared income, it failed to provide documents to support its objection and therefore, the Respondent adjusted the assessment based on the information provided. The Respondent relied on the cases of Joyce Mwende Titusv Commissioner of Domestic Taxes TAT E072 of 2023 and Commissioner of Investigations and Enforcement v Kidero Income Tax Appeal E028 of 2020 eKLR to argue that a taxpayer must keep records to assist in determining tax liability.

45. The Respondent submitted that the Appellant knowingly and recklessly committed an offence according to section 94 and 95 of the TPA on the basis that the Appellant failed to submit tax return and failed to pay tax. The Respondent also relied on sections 15 and 16 of the ITA to submit that the Appellant failed to submit sufficient documents to support its case. It therefore, submitted that the Appellant failed to maintain documents required under a tax law to enable determination of the tax liability.

46. The Respondent relied on the case of Julie Magwi Njue v Commissioner of Domestic Taxes TAT No. 1400 of 2022 where the Tribunal held that it is upon the taxpayer to keep records pursuant to section 23(1) (b) of the TPA.

47. The Respondent also relied on the cases of Monaco Engineering Limited v Commissioner Domestic Taxes TAT Appeal No. 67/2017; Osho Drappers Ltd v Commissioner of Domestic Taxes TAT No. 159 of 2018; Miao Yiv Commissioner of Investigations & Enforcement TAT no 441 of 2019; and Kenya Revenue Authority v Man Diesel & Turbo Se, Kenya [2021] eKLR wherein it was held that the taxpayer has to discharge the burden of proof under section 56(1) of the TPA Act.

48. The Respondent emphasized that the Appellant failed to discharge its burden of proof.

Respondent’s prayers 49. The Respondent prayed that the Appeal be dismissed with costs while the impugned objection decision be upheld.

Issues For Determination 50. The Tribunal having considered parties’ pleadings documentary evidence and written submissions, is of the view that the following two issues call for its determination:a.Whether the 2015 confirmed assessment was statutorily time barred.b.Whether Respondent erred in confirming the assessments.

Analysis And Findings 51. The Tribunal having identified the two issues falling for its determination will proceed to analyse them hereunder:a.Whether the 2015 confirmed assessment was statutorily time barred.

52. The Appellant’s case is that the Respondent’s decision included assessments in respect of the year 2015 contrary to sections 29(5) and 23(1) (c) of TPA. On the other hand, the Respondent stated that it included the assessment for the year 2015 because the Appellant failed to file tax returns for the said period.

53. The TPA provides for timelines for keeping records. In particular pursuant to the provisions of Section 23(1) (c) the TPA documents required under a tax law ought to be retained for five years or lesser period specified in a tax law. The said section provides as follows:‘‘1)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.’’

54. The Tribunal observes that in the Respondent’s basis for the assessment notice dated 26th October 2023 was the following provisions of Section 31(1)(c) of the TPA:“31. Amendment of assessments(1)Subject to this section, the Commissioner may amend an assessment (referred to in this section as the “original assessment") by making alterations or additions, from the available information and to the best of the Commissioner's judgement, to the original assessment of a taxpayer for a reporting period to ensure that—(a)…………………………………………..(b)…………………………………………….(c)in any other case, the taxpayer is liable for the correct amount of tax payable in respect of the reporting period to which the original assessment relates.”

55. The view of the Tribunal is that Section 31 of the TPA provides for the procedure through which the Commissioner can amend an assessment and that the application of Section 31 of the TPA presumes that a taxpayer has filed its/his/her returns and accordingly has made its/his/her self-assessment. Pursuant to Section 31, the Respondent has the power to amend the self-assessment.

56. The Tribunal can infer that in the instant Appeal, the Appellant already filed tax returns and that the Respondent, being of the opinion that the Appellant had not paid the correct taxes, investigated the Appellant’s tax affairs and amended its self-ssessments pursuant to section 31(1)(c) of the TPA. The result of the investigations was a confirmation of the assessments up to and including that in respect of the 2015 year of income.

57. The Tribunal’s further view is that the provisions of Section 29 of the TPA do not apply in this dispute since the Appellant made self-assessments. The provisions of Section 29 of the TPA are in respect of the issuance by the Respondent of a default assessment and the issuance of a default assessments presumes that a taxpayer has failed to make a self-assessment and also failed to file its/his/her returns.. The finding of the Tribunal is that in the instant Appeal, the Respondent confirms in its notice of assessment dated 26th October, 2023, that the basis of its assessment is the provisions of Section 31 (1) (c) of the TPA. Consequently, the issue of non-filing of returns by the Appellant does not arise.

58. The Tribunal will proceed to make a finding on whether there was an action by the Appellant that would have caused the Respondent to assess the Appellant for a period beyond 5 years. Section 31(4) (b) of the TPA provides as follows regarding the timeframe within which the Respondent may amend an assessment:“The Commissioner may amend an assessment—(a)in the case of gross or wilful neglect, evasion, or fraud by, or on behalf of, the taxpayer, at any time; or(b)in any other case, within five years of—(i)for a self-assessment, the date that the self-assessment taxpayer submitted the self-assessment return to which the self-assessment relates; or(ii)for any other assessment, the date the Commissioner notified the taxpayer of the assessment:……..”

59. The Tribunal notes that the Respondent confirmed assessments in respect of the 2015, 2018 and 2021 years of income in its objection decision dated 11th January 2024. Having found that the Respondent issued amended assessments under Section 31 of the TPA and not default assessments under Section 29 of the TPA, the Tribunal is of the view that in order for the Respondent amend the assessments beyond the period of 5 years, required it to prove that there was gross and wilful negligence, evasion or fraud by the Appellant.

60. In the case of Commissioner of Domestic Taxes v Airtel Networks Kenya Limited (Income Tax Appeal E062 of 2022) [2023] KEHC 25059 (KLR) the High Court stated as follows regarding the issue of the period within which an amended assessment can be made and the circumstances under which the Respondent can extend it beyond the 5-year statutory time frame:‘‘In this regard, under section 31(4) of the Tax Procedures Act, an amendment outside the 5-year period can only be permitted if there is evidence of willful neglect, evasion, or fraud by or on behalf of the tax payer…The legal position is that, all assessments ought to be made within 5 years except when there is evidence of gross or wilful neglect, evasion or fraud on the part of the taxpayer. This also goes hand in hand with the provisions of section 23 of the Tax Procedures Act, which requires a taxpayer to retain documents for the same period. The implication is that, after 5 years, since no assessment can be made, the taxpayer is absolved of his burden of maintaining such records.’’

61. In view of the foregoing analysis, the Tribunal finds and holds that the Respondent was not able to prove why it assessed the Appellant beyond the statutory time frame set out by the provisions of Section 31(4) of the TPA and that accordingly the 2015 confirmed assessment was statutorily time barred and ought to be expunged.b.Whether Respondent erred in confirming the assessments.

62. The Tribunal having established that the confirmed 2015 assessments are unlawful because they are statutorily time barred, will now proceed to determine whether the Respondent was justified in confirming the assessments in respect of the 2018 and 2021 year of income.

63. The Tribunal notes the Appellant’s averment that it provided documentary evidence to support the notice of objection but the Respondent ignored the documentary evidence. The Respondent on the other hand, averred that the Appellant did not provide any evidence that would have altered the assessments. The Respondent relied on section 23(3) (b) of the TPA and sections 54A (1) and 55(2) of ITA to state that the Appellant failed to keep records. The Respondent also relied on section 51(3) of the TPA to assert that the Appellant did not file a valid objection.

64. The Tribunal notes that the Respondent placed reliance on the provisions of Section 51(3) of the TPA to state that the Appellant failed to comply with the said provisions. In fact, at paragraph 26 of its statement of facts the Respondent stated as follows:‘‘Appellant in lodging his objection failed to state the reasons precisely to be addressed in the assessments raised. In addition, the Appellant failed to properly lodge his objection as provided by the Tax procedures Act.’’

65. The Respondent averred that the notice of objection was invalid and the Appellant ought to have validated the same. Pursuant to the following provisions of Section 51(4) of the TPA, there is a remedy for the Appellant where the Respondent determines that an objection is invalid:“(4)Where the Commissioner has determined that a notice of objection lodged by a taxpayer has not been validly lodged, the Commissioner shall within a period of fourteen days notify the taxpayer in writing that the objection has not been validly lodged and request the taxpayer to submit the information specified in the notice within seven days after the date of the notice.”

66. The Tribunal having reviewed the Respondent’s pleadings finds that the Respondent failed to comply with the provisions of section 51(4) of the TPA and having so failed to demonstrate that it notified the Appellant in conformity with the said provisions of Section 51 (4) of the TPA, the Respondent cannot aver that the notice of objection was invalid.

67. It is the view of the Tribunal that the provisions of Section 51(4) of the TPA ensure that a taxpayer is accorded a fair hearing and that the Respondent issues fair administrative decisions that are well reasoned. The confirmation of an assessment is necessary where a taxpayer squanders the opportunity to prove its/his/her case. The provisions of Section 51 (4) ensures that all administrative remedies are exhausted and that the Respondent adheres to principles of natural justice in making its decisions.

68. Whilst considering the provisions of Section 51(4) of the TPA in Centurion Engineers & Builders Ltd v Commissioner of Domestic Taxes (Tax Appeal 963 of 2022) [2024] KETAT 356 (KLR), the Tribunal stated as follows:‘‘Whereas the said provisions require the Respondent to notify the taxpayer of the invalidity of the notice of objection, the Respondent has not filed such a notice in evidence to demonstrate to the Tribunal that the Appellant refused to act upon the notice leading to confirmation of the assessment.’’

69. Further, in the case Sino v Commissioner of Domestic Taxes (Tax Appeal 1243 of 2022) [2024] KETAT 31 (KLR) the Tribunal held as follows:‘‘Whereas the decision as to whether a notice of objection is validly lodged or not rests with the Respondent, such power must be exercised in accordance with the law. The Respondent ought to be guided by the provisions of Section 51 (4) of the Tax Procedures Act which provides as thus; -“Where the Commissioner has determined that a notice of objection lodged by a taxpayer has not been validly lodged, the Commissioner shall within fourteen (14) days notify the taxpayer in writing that the objection has not been validly lodged.”Accordingly, the Respondent having alleged that the Appellant’s objection was invalid, was obligated in law to demonstrate that it notified the Appellant that its objection had not been validly lodged within the period of fourteen days and in default thereof the Appellant’s objection was validated by the operation of law.’’

70. The Tribunal is of the view that the Respondent did not adduce as evidence, the notice through which it notified the Appellant that the objection was invalid and second, it is only upon complying with section 51(4) of the TPA that the Respondent can lawfully proceed to issue an objection decision as provided for under 51(4A) of the TPA which provides as follows:‘‘(4A) Despite subsection (3), where a taxpayer fails to provide the information required under subsection (4) or fails to provide the information within the specified period, the Commissioner may make an objection decision within sixty days after the date on which the notice of objection was lodged.’’

71. The Tribunal sighted the following documents which the Appellant filed in support its Appeal and which the Respondent acknowledged in its pleadings: customer invoices,

supplier invoices

expense sample documents

72. The finding of the Tribunal is that the Respondent failed to comply with the mandatory provisions of the law in making its objection decision and as such, the Tribunal holds the Respondent’s objection decision to be premature and unlawful. The further view of the Tribunal is that the Appellant discharged its burden of proving that the decision of the Respondent was incorrect because it provided sufficient documents to enable the Respondent to revise its assessment.

73. Subsequently, the Tribunal holds that the Respondent erred in confirming the assessments in respect of the 2018 and 2021 years of income.

Final Decision 74. The upshot to the foregoing is that the Tribunal finds and holds that the Appeal succeeds and proceeds to make the following Orders:a.The Appeal be and is hereby allowed.b.The Respondent’s objection decision dated 11th January 2024 be and is hereby set aside.c.Each party to bear its own cost.

75. It is so Ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 14TH DAY OF FEBRUARY, 2025. CHRISTINE A. MUGA - CHAIRPERSONBONIFACE K. TERER- MEMBERELISHAH N. NJERU - MEMBEREUNICE N. NG’ANG’A- MEMBEROLOLCHIKE S. SPENCER- MEMBER