[2023] KETAT 335 (KLR)

Kiteco Housing Investments Cooperative Society Limited v Commissioner of Domestic Taxes (Appeal 75 of 2023) [2023] KETAT 335 (KLR) (Civ) (9 June 2023) (Ruling)

Neutral citation: [2023] KETAT 335 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Civil

Appeal 75 of 2023

E.N Wafula, Chair, Cynthia B. Mayaka, RO Oluoch, E.N Njeru & AK Kiprotich, Members

June 9, 2023

Between

Kiteco Housing Investments Cooperative Society Limited

Appellant

and

Commissioner of Domestic Taxes

Respondent

Ruling

1. The Application which was by way of a Notice of Motion dated 20th January 2023 and filed under a Certificate of urgency on 23rd January 2023 is supported by an Affidavit sworn by the principal office bearers of the Appellant on the 20th day of January, 2023 seeks for the following Orders:-a.Spent;b.That pending the hearing and determination of this application an Order be issued for Kshs. 850,000. 00 tax money paid to reflect on Kiteco Housing Investments Cooperative Society Limited iTax ledger as part of VAT as payment slips confirm so.c.That pending the hearing and determination of the substantive Appeal the Respondent, its Agents, and/or workers be investigated for the conduct of misleading taxpayers for personal gain.d.That the Applicant be at liberty to apply for further orders and the Honourable Tribunal do give any and/or any directions it deems fit and just to grant in the circumstances.e.The costs of this application be in the cause.

2. The application is premised on the following grounds:-a.That Kiteco Housing Investments Cooperative Limited board members are the Applicant and a Senior Citizen residing in Kilifi County.b.That Kiteco Housing Investments Cooperative Limited have a payment plan in which they are compliant with monthly agreeable remittance and in constant communication with the Respondent.c.That on 29th May, 2019 the Appellant paid a sum of Kshs.850,000. 00 at the Respondent’s Malindi Station.d.That in 2022 the Appellant entered into a payment plan and requested that the paid sum of Kshs.850,000. 00 be included or deducted from the tax due.e.That as at 16th January, 2023 the paid amount of Kshs.850,000. 00 has not reflected on the Appellant’s itax or deducted from the tax due.

3. The Applicant in its document titled Ground and Legal avenues for Tribunal to prosecute the matter dated and filed before the Tribunal on 1st March 2023 stated as hereunder:-a.That the Tax Appeals Tribunal Act provides provisions for investigating staff of the Commissioner of Domestic Taxes for malpractice and wrongdoing or issuing false statements to taxpayers.b.That in pursuant to Section 48 of the Tax Appeals Tribunal Act the Tribunal may on its own motion or on application of a party conduct an inquiry or investigation into the conduct of any officer, employee, or agent to the Commissioner of Domestic Taxes in relation to a matter before the Tribunal.c.That Section 57 of the Tax Appeals Tribunal Act further provides that any person who provides false information or makes a false statement to the Tribunal, or who obstructs the Tribunal in the performance of its functions, commits an offence and is liable to a fine or imprisonment, or both.d.That the Tax Appeals Tribunal Act empowers the Tribunal to investigate staff of the Commissioner of Domestic Taxes for malpractice or wrongdoing, and provides penalties for anyone who obstructs or provides false information during such investigations.

4. In response to the application the Respondent filed its Grounds of Opposition on the 2nd February, 2023 and a Preliminary Objection dated and filed on 14th March 2023 in which it raised the following grounds in opposition to the application:-.a.That the prayers in the Notice of Motion do not originate from an appealable decision but are administrative in nature and thus the Tribunal lacks jurisdiction to entertain the application.b.That the Appellant has not disclosed or availed the decision complained of thus the application is fatally defective.c.That the prayers sought in the application are vague and incapable of compliance.d.That without prejudice to the foregoing grounds, the prayers sought in the application are substantive in nature and cannot be granted in the interim stage.e.That further and without prejudice to the foregoing grounds, even if the decisions complained of are appealable in nature, there is an inordinate delay in bringing the application.f.That the application thus has no merit, is misconceived, bad in law, and ought to be struck out.g.That the Appeal offends Section 13(2) of the Tax Appeals Tribunal Act as there is no evidence of a tax decision challenged.h.That the Appeal is thus fatally defective, lacks merit and must fail.i.That the Appeal is therefore an abuse of the process of the Tribunal and a waste of resources

5. Seeing as the Respondent did not file its submissions, the Tribunal shall entirely rely on the Respondent’s pleadings as filed before it.

Analysis and Findings 6. The Appellant brought the instant application averring that it paid the Respondent’s employee Kshs. 850,000. 00 which ought to be deducted from its liability. Its main prayer was for the Tribunal to initiate an investigation into the conduct of the Respondent’s employee for issuing false statements, wrongdoing and unlawful conduct.

7. The Respondent argued that the current application lacks merit as there is no cause of action as there exists no appealable decision issued to the Appellant.

8. The Respondent further reiterated that the prayers sought in the application are vague and incapable of compliance and even at that, the prayers sought in the application are substantive in nature and cannot be granted in the interim stage. It added that even if the actions complained of are appealable in nature, there is an inordinate delay in bringing the application.

9. The Respondent equally raised the ground that the actions complained of are administrative in nature and the Tribunal lacks the necessary jurisdiction to entertain the application.

10. The Appellant’s liberty to lodge an appeal is provided for under Section 12 of the Tax Appeals Tribunal Act, No. 40 laws of Kenya which states as follows:-“A person who disputes the decision of the Commissioner on any matter arising under the provisions of any tax law may, subject to the provisions of the relevant tax law, upon giving notice in writing to the Commissioner, appeal to the Tribunal…”

11. The Tribunal notes that there is no decision expressed to have been issued by the Respondent that the Appellant is dissatisfied with and there appear to be no disputed tax assessment for the Appellant to seek for a remedy from the Tribunal.

12. The Appellant has not elucidated any specific and discernable wrongdoing or false statement by any employee of the Respondent in the course of making any tax decision that would warrant any possible investigations from the Tribunal.

13. The Appellant has manifestly not raised any complaint with the Commissioner with regard to any administrative infractions by his offices for an appropriate disciplinary process. The issues are entirely administrative that ought to be handled internally by the Commissioner and/or any other Government agency with the mandate to investigate and deal with any impropriety by a public officer.

14. In the absence of any appealable decision and/or any decision from the Commissioner with regard to any tax dispute the Tribunal lacks the necessary jurisdiction to entertain the Appellant’s application in any manner whatsoever.

Disposition 15. The upshot to the foregoing is that the application is incompetent and unsustainable in law and the Tribunal accordingly proceeds to make the following Orders:-a.The application be and is hereby struck out.b.No orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JUNE, 2023. ...........……………….ERIC N. WAFULACHAIRMAN………………………CYNTHIA B. MAYAKAMEMBER.....................................RODNEY O. OLUOCHMEMBER………………………..ELISHAH NJERUMEMBER...................................ABRAHAM K. KIPROTICHMEMBER