https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/109

Waweru v Commissioner of Legal Services and Board Coordination (Appeal E1226 of 2025) [2026] KETAT 109 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KETAT 109 (KLR) Republic of Kenya In the Tax Appeal Tribunal Appeal E1226 of 2025 RM Mutuma, Chair, JM Malla, T Vikiru & G Ogaga, Members June 30, 2026 Between Lydiah Njeri Waweru Appellant and Commissioner of Legal Services and Board Coordination Respondent Judgment Background 1.The Appellant is an individual. Her principal business is auctioneer services. 2.The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, Cap 469 Laws of Kenya (KRA Act). Under Section 5(1) of the Act, KRA is an agency of the Government for the collection and receipt of all revenue. For the performance of its function under Subsection (1), the Authority is mandated under Section 5(2) of the Act to administer and enforce all provisions of the written laws as set out in Parts I and II of the First Schedule to the KRA Act to assess, collect, and account for all revenues under those laws. 3.The Respondent issued the Appellant with Income tax and Value Added Tax (VAT) additional assessments for the periods 2020 to 2024 on 26th June 2025. 4.The Appellant objected to the assessments on 28th July 2025. 5.The Respondent issued an Objection decision on 19th September 2025 confirming the assessments. 6.The Appellant, being dissatisfied with the Respondent’s Objection decision, filed her Notice of Appeal dated 18th October 2025 on 31st October 2025. The Appeal 7.The Appeal is premised on the Memorandum of Appeal dated 30th October 2025 and filed on 31st October 2025 which raised the following grounds: -a.That the estimated additional assessment is excessive by reason of some error or mistake of fact in alleged income.b.That the estimated additional assessment is punitive, erroneous and not as per actual income.c.That the Respondent while raising additional assessment made a substantial error or defect in the procedure provided by the VAT Act, 2013 Section 12 and rules made there under which may possibly have produced error or defect in the decision of the case upon merit.d.That by the Respondent not taking in to account, neglecting or disregarding time of supply or time of invoicing and time of withholding certificates is a decision contrary to the ‘tax law’.e.That the Respondent having ignored, neglected or not taking in to account time of supply or time of invoicing and time of withholding certificates is the decision having failed to determine some material issue of law or usage having the force of law, disregarded “Fair Administrative Action” as provided under Section 47 of the constitution of Kenya 2010.f.That for the year 2020, the following VAT and Income tax withholding certificates related to invoices that were invoiced and declared in the years 2017, 2018 and 2019.g.That the VAT and Income tax withholding certificates for the year 2021 related to invoices which were invoiced and declared in iTax in the previous periods. i.e. 2019, 2018, 2017 and 2014.h.That for the year 2022, the following VAT and Income tax withholding certificates related to invoices that were invoiced and declared in the years 2019, 2020 and 2021.i.That for the year 2023, the following VAT and Income tax withholding certificates related to invoices that were invoiced and declared in the years 2019, 2020, 2021 and 2020.j.That for the year 2024, the following VAT and Income tax withholding certificates related to invoices that were invoiced and declared in the years 2019, 2020, 2021, 2022 and 2023.k.That the variance of the declared turnover in Income tax and VAT returns for years 2020, 2022 and 2023 compared to expected turnover established as per VAT and Income tax withholding certificates analyzed for these periods were Erroneously assessed twice and thrice as per the following General Ledger reference numbers: 000001175861480, 000001175853086, 000001175861373, 000001175852638, KRA202590109336l.That although the Appellant failed to furnish the Respondent with the following records as burden of proof lies with the Appellant, provided under Section 30(a) of the Tax Appeals Tribunal Act, 2013: Objection grounds, Excel reconciliation of the WHVAT certificates and Audited Financial Statements, the Appellant has gathered these records and ready to avail them. Appellant’s Case 8.The Appellant’s case is premised on the following documents filed before the Tribunal:a.Her Statement of Facts dated 30th October 2025 and filed on 31st October 2025; andb.The Appellant’s Written Submissions dated 20th April 2026 and filed on 21st April 2026. 9.The Appellant stated that the Respondent conducted a review of her tax returns for the years of Income 2020, 2021, 2022, 2023 and 2024 of which allegations of variances were reported hence additional assessments of Kshs. 43,202,127 Principal Income tax and VAT, and Kshs. 15,135,163 penalties and interest. 10.That the allegations were from the following:(a)That there was a variance in the turnover declared in the Income tax returns compared to expected turnover established as per VAT and Income tax withholding certificates analyzed for the period.(b)That there was a variance in the turnover declared in the VAT Tax returns compared to expected turnover established as per VAT and Income tax withholding certificates analyzed for the period 11.That of the above headings of allegations, the Respondent came up with estimated additional assessments of Kshs. 43,202,127 raised on 27th June 2025 and objected on 28th July 2025 and decision made on 19th September 2025. 12.The Appellant contended that the Objection decision dated 19th September 2025 declining to grant Objection application is defective in that no fair administration action. 13.That the estimated additional assessment is punitive, erroneous, and not per the income. 14.The Appellant averred that the total estimated principal tax under dispute of Kshs. 65,397,607.5 is tabulated as per the general ledger to enable the Commissioner to amend the assessments in accordance with the objection and not in accordance to the best of his judgement. 15.The Appellant asserted that the Commissioner requested the following records: Objection grounds, Excel reconciliation of the WHVAT certificates and Audited Financial Statements for the years under review. 16.The Appellant confirmed that the Commissioner was never furnished with the documentation requested and averred that in the absence of the documentation, the Commissioner provided hypothetical figures from her imaginations. 17.The Appellant stated that at the hearing she will rely on all communications written and the verbal between the parties and the Appellant’s books, Excel reconciliation of the withholding certificates and Audited Financial Statements for the years under review, also all the documents submitted to the Respondent and notices and demands received from her, and the Appellant’s and her expert witnesses testimony, for substantiating the excessiveness of the tax assessed by the assessment complained of, and for the establishing the correct amount leviable from here. Appellant’s Submissions 18.The Appellant considered that the following singular issue arises for determination: Whether the Appellant was accorded the right to fair administrative action as codified in Section 51(4) of the Tax Procedures Act. 19.The Appellant submitted that in Kenya, the right to fair administrative action is guaranteed under Article 47 of the Constitution of Kenya, 2010, and implemented through the Fair Administrative Action Act, 2015. That it ensures that every person is entitled to administrative action that is lawful, reasonable, efficient, and procedurally fair, with a right to written reasons when such action adversely affects them. 20.It was her further submission that in the present case, the test is whether the Respondent strictly complied with the provisions of Section 51 of the Tax Procedures Act that sets the procedure within which fair administrative action by the Respondent can be measured against the impugned administrative decision. That Section 51(4) of the Tax Procedures Act provides as follows: -“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.” 21.That in the Respondent’s Objection decision dated 19th September 2025, the Respondent states as follows, under the heading Grounds of Objection: -“You did not provide any grounds of objection despite our request via email dated 23rd September 2025.” 22.That the Respondent further states in the said Objection decision as follows, under the heading Statement of Findings:“ln the absence of the stated grounds of objection and the supporting documentation, the Commissioner is unable to consider or grant the objection as sought.” 23.The Appellant submitted that her Objection application was made on 28th July 2025. That as per the provisions of Section 51(4) of the Tax Procedures Act, the Respondent was mandated to inform the Appellant within fourteen days of receipt of the Appellant’s notice of objection that the said Objection had not been validly lodged. That Section 51(4) of the Tax Procedures Act, employs the use of the word "shall" to impose an obligation on the Respondent of communicating within fourteen days. 24.The Appellant supported her argument by citing the holding in the High Court Judicial Review No. 40 of 2011 Republic v Principal Secretary, Ministry of Interior & Coordination of National Government, Attorney General Ex-Parte Simon Wainaina Mwaura. 25.In the Appellant’s view, the question then begs, is whether or not, between the date the Respondent received the Appellant’s notice of objection, and the date the Respondent purports to have informed the Appellant of the invalidity of her Objection, is this within the statutory fourteen (14) days of Section 51(4) of the Tax Procedures Act. 26.The Appellant invited the Tribunal to observe that between the date of the notice of objection dated 28th July 2025 and the email of the Respondent informing the Appellant of the invalidity of her Objection which was done on 3rd September 2025, a whopping thirty-seven (37) days had lapsed. 27.The Appellant contended that the Respondent’s actions are an affront to Section 51(4) of the Tax Procedures Act. The Appellant submitted that the Respondent, as does not have any discretion to create a new timeline within which to operate under. That the consequence therefore, is that this was a clear breach of the law and as such tainted the Objection decision since the right to fair administrative action was impeded by an unlawful act on the part of the Respondent. 28.The Appellant cited Commissioner of Domestic Taxes v Hussein (Income Tax Appeal E064 of 2022 [2023] KEHC 2596 (KLR) (Commercial and Tax), where the High Court observed as follows: -“Section 51(4) of the Tax Procedure Act is clear and couched in mandatory terms that the Commissioner has the obligation to notify the taxpayer that a notice has been invalidly lodged within 14 days once it has determined that is the case.I concur with the Tribunal that the purpose of such an immediate notice is to give the taxpayer an opportunity to rectify its objection to the assessment and/or provide additional documents in support of its objection. Failure to give the Respondent such an opportunity is to deny him his right to fair administrative action and is in breach of the Appellant's legitimate expectation that he would be afforded a chance to support his objection.” 29.That further, and without prejudice to the foregoing, it is also important to stress that the email of 3rd September 2025 from the Respondent cannot be said to meet the threshold of Section 51(4) of the Tax Procedures Act. That it does not inform the Appellant that her notice of objection was invalid, and neither does it communicate the consequence of non-compliance. That the said email is reproduced hereunder: -“Good morning,I refer to our meeting yesterday with Mr. Kanyari. Kindly provide the following records for our review:Grounds for Objection;Excel reconciliation of the WVAT certificates;Audited Financial Statements for the years under contention;Letter appointing Mr. Kanyari as your legal representative.We would appreciate if you could furnish the above documents at your earliest convenience, but not later than 9th September 2025.Kind Regards,” 30.The Appellant submitted that the language employed by the Respondent does not bother to inform the Appellant that failure to comply with this email within the timelines given thereunder has grave consequences under the Tax Procedures Act. That instead, the Respondent employs the casual tone of "We would appreciate if you could furnish the above documents at your earliest convenience" 31.According to the Appellant, the email does not comply with the right to fair administrative action under Article 47 of the Constitution. That the right to fair administrative action entitles individuals to be informed of the potential consequences of a decision before it is taken, ensuring they understand how their rights or freedoms may be affected. That this requirement is a fundamental aspect of procedural fairness designed to ensure that administrative processes are transparent, lawful, and reasonable. 32.That Section 51(4A) of the Tax procedures Act, provides as follows: -“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.” 33.The Appellant submitted that because of the consequence predicated by Section 51(4A) of the Tax Procedures Act, it was incumbent upon the Respondent to inform the Appellant that the requirement to submit the grounds of objection and supporting documents was imposed by law and that there were consequences for failure to comply. That all this is but moot, since the Appellant has already established the irrefutable fact that the Respondent infringed Section 51(4) of the Tax Procedures Act by failing to adhere to the strict statutory timelines set thereunder. That on this alone, the Appeal should succeed. 34.The Appellant averred that the Respondent has stated at paragraph 7 of the statement thereof that the request for documents was made on 8th August 2025, and subsequently a reminder was issued on 3rd September 2025. The Appellant invited the Tribunal to peruse the evidence submitted by the Respondent in this regard: that the only email communication attached to the Respondent’s pleadings is the one of 3rd September 2025, because no email was ever issued on 8th August 2025. 35.That as a matter of fact, the Objection decision itself only makes reference to the email of 3rd September 2025, which is not even christened as a reminder. That at any rate, Section 51(4) and Section 51(4A) of the Tax Procedures Act does not invite the Respondent to issue more than one notification to the Appellant of the invalidity of their Objection; once the Respondent complies with Section 5l (4), time starts running immediately for issuance of an Objection decision under Section 51(4A) of the Tax procedure Act. 36.The Appellant submitted that she has aptly demonstrated that the appeal is meritorious and warrants the orders prayed for in the Memorandum of Appeal. Appellant’s Prayers 37.The Appellant prayed that the Tribunal grants the following:a.That the aforesaid assessments be annulled; andb.That the Appellant be permitted to pay the tax leviable on her true income ascertainable from evidence which will be availed and will be adduced at the hearing. Respondent’s Case 38.The Respondent’s case is premised on the following documents filed before the Tribunal:a.The Respondent’s Statement of Facts dated 28th November 2025 and filed on the same date; andb.Its Written Submissions dated 28th April 2026 and filed on 29th April 2026. 39.The Respondent stated that it conducted a compliance check on the Appellant, issuing a notice of intention to audit on 25th February 2025 and subsequently issuing an assessment on 26th June 2025 covering the period January 2020 to December 2024. 40.That the review established an under-declaration of income, determined by comparing the Withholding VAT (WHVAT) certificates issued under the Appellant’s PIN against the VAT returns filed. That this comparison revealed under-declared VAT output for the years 2020-2024. That additionally, it was established that sales turnover was under-declared in the Income tax returns for the years 2020 to 2023. 41.That the Appellant being aggrieved by the assessments lodged a timely objection on 28th July 2025. 42.The Respondent stated that following the objection, the IRO requested supporting documents on 8th August 2025, and subsequently issued a reminder on 3rd September 2025. That the Appellant, however, did not provide the information requested, which included:(a)An Excel reconciliation of the WHVAT certificates;(b)Audited Financial Statements for the years under review;(c)A letter appointing Mr. Kanyari as the legal representatives. 43.The Respondent pleaded that due to the failure to provide the required documentation, it proceeded to confirm the assessments as issued, as communicated in the Objection decision dated 19th September 2025. 44.That the Appellant dissatisfied with the Respondent’s Objection decision filed and served the memorandum of appeal on the Respondent on 31st October 2025 which forms the crux of the dispute herein. Whether the Respondent’s assessment was lawful. 45.The Respondent asserted that its assessment for VAT and Income tax was lawful and issued on the basis that the Appellant failed to provide records to reconcile variances between the VAT returns filed and the WHVAT certificates issued under the Appellant’s PIN. 46.That Section 24 of the Tax Procedure Act provides that: -“A person required to submit a tax return under a tax law shall submit the return in the approved form and in the manner prescribed by the Commissioner.The Commissioner shall not be bound by a tax return or information provided by, or on behalf of, a taxpayer and the Commissioner may assess a taxpayer's tax liability using any information available to the Commissioner.” 47.The Respondent contended that the Appellant has the obligation of filing tax returns but the Respondent is not bound by the said return and/or information provided. Section 31 (1) of the Tax Procedure Act provides that: -“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)in the case of a deficit carried forward under the Income Tax Act (Cap. 470), the taxpayer is assessed in respect of the correct amount of the deficit carried forward for the reporting period;(b)in the case of an excess amount of input tax under the Value Added Tax Act, 2013 (No. 35 of 2013), the taxpayer is assessed in respect of the correct amount of the excess input tax carried forward for the reporting period; or(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.” 48.The Respondent pleaded that it was upon the Appellant to prove that the Respondent erred in exercising the best judgment and raising the additional assessments. The Respondent pleads that the Appellant failed to discharge the burden. In that regard, the Respondent maintained its assessments. 49.The Respondent submitted that the basis of raising the additional assessment was justified and lawful based on the reasons above and the same ought to be upheld. It relied on the case of Boleyn International Ltd v Commissioner of Investigations and Enforcement, Nairobi TAT Appeal no. 55 of 2018 where the Tribunal held that: -“We find that the Appellant at all times bore the burden of proving that the Respondent's decisions and investigations were wrong. The Tribunal is guided by the provisions of Section 56(1) of the TPA, 2015 which states: In any proceedings under this part, the burden shall be on the taxpayer to prove that a tax decision is incorrect.Further, the Tribunal finds the following paragraph from Pierson v Belder (H.M. Inspector of Taxes) (19.ti6-1960), 38 TC, 387 to be instructive:"But the matter may be disposed of, I think, even more shortly in this way: there is an assessment made by the Additional Commissioners upon the Appellant; it is perfectly clearly settled by cases such as Norman v Golder, 26 T.C. 293, that the onus is upon the Appellant to show that the assessment made upon him is excessive or incorrect; and of course, he has completely failed to do so. That is sufficient to dispose of the appeal, which accordingly I dismiss with costs."” Whether the Appellant discharged the burden of proof. 50.The Respondent relied on Section 56 of the Tax Procedures Act, 2015 which provides that: -“In any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect.” 51.The Respondent stated that that it requested the Appellant to provide various records on 3rd September 2025 but the Appellant failed to do so. It submitted that the Appellant has an obligation to maintain records as provided under Section 23 of the TPA. 52.The Respondent submitted that the Appellant has the burden of proof that the assessment made by the Respondent was incorrect. The Respondent stated that the Appellant has admitted on Paragraph 12 of her memorandum of appeal that she did not provide records but was willing to avail them. That this simply implies that the Appellant was aware that she had a burden to provide records and failed to do so. 53.That further, what stopped the Appellant from providing this information before the Tribunal? The Respondent submitted that the Appellant has not attached any records in its appeal so that the Tribunal can review if at all the Appellant was candid about availing the records and discharging the burden of proof. 54.The Respondent relied on the case of TAT No. E-1448 of 2024 Ketterdollar Limited v Commissioner of Domestic Taxes where it was held that: -“The Tribunal has perused the record before it and taken note that the Appellant has not annexed any additional documents it alleged to have provided to the Respondent included the invoices. There is also no record of attempts to reconcile the variances that led to the additional assessments. This inevitably raises the question of burden of proof in tax matters.” 55.The Respondent submitted that the Appellant’s allegation that her right to fair administrative action was breached is unfounded as the Appellant is simply running away from his obligation under Section 56 of the Tax Procedures Act. 56.The Respondent ccontended that the Appellant having failed to provide records to reconcile variances thereby failed to discharge her burden of proof as required by the law, which resulted in additional assessment. The Respondent reiterated that the burden of disputing the Respondent’s assessment lies on the Appellant and in so doing relies on the case of Commissioner of Domestic Taxes. v Trical and Hard Limited (Tax Appeal E146 of 2020) [2022] KEHC 9927 (KLR). Respondent’s Prayers 57.The Respondent prayed that the Tribunal:a.Dismisses the appeal in its entirety;b.Upholds the tax assessment as confirmed by the Objection decision; andc.Orders the Appellant to pay the costs of the appeal. Issue for Determination 58.The Tribunal has considered the pleadings and the submissions made by the Parties, and considers the issue for determination as follows:Whether the Respondent was justified in confirming the Income tax and VAT additional assessments. Analysis and Findings 59.Having identified the issue for determination, the Tribunal proceeds to analyse the same as hereunder. 60.The Respondent assessed and subsequently confirmed additional Income tax and VAT assessments covering tax periods in the years 2020 and 2024. As set out in the notice of intention to conduct a compliance check, the notice of assessment, the basis of the assessments was the Appellant’s purported undeclared sales, established by comparing the turnovers declared in Appellant’s Income tax and VAT returns against the grossed-up sales reflected in the Appellant’s withholding tax certificates. 61.The Appellant disputed the assessments on two limbs. First, she contended that her right to fair administrative action was breached because the Respondent failed to comply with Section 51(4) of the Tax Procedures Act in the manner and within the timelines provided. Second, while admitting that she did not furnish the Respondent with the objection grounds, Excel reconciliation of the WHVAT certificates and Audited Financial Statements, she maintained that she had since gathered these records and was ready to avail them. The Tribunal addresses each contention in turn. 62.The Tribunal clarifies that the Appeal before it is against an Objection decision that confirmed tax assessments. The burden therefore lay on the Appellant to demonstrate that the Respondent’s assessments were excessive or incorrect, in accordance with Section 56(1) of the Tax Procedures Act and Section 30 of the Tax Appeals Tribunal Act which provide as follows: -Section 56(1) of the Tax Procedures Act“ 56.(1)In any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect.” Section 30 of the Tax Appeals Tribunal Act:“ 30.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(b)in any other case, that the tax decision should not have been made or should have been made differently.” 63.Section 54A(1) of the Income Tax Act obligates a person carrying on a business keep records of, among other documents, all receipts, accounts and books which in the opinion of the Commissioner, are adequate for the purpose of computing tax. 64.Section 43 of the VAT Act requires a person in the course of his business to keep a full and true written record of every transaction he makes, and details the records to be kept. The person shall avail the records to the Commissioner for inspection. 65.For context for the records analysis that follows, the Tribunal sets out the chronology of the objection review process:a.The Appellant filed its objection applications on 28th July 2025 in relation to Income tax and VAT assessments issued by the Respondent on 26th June 2025.b.The Respondent emailed the Appellant on 3rd September 2025 alluding to a meeting by a Mr. Kanyari and requesting documents for its review not later than 9th September 2025. The email stated:“From: Shairin Hadia Athman/L to/KRATo: Purpleroyal2015@Gmail.ComCc: Samuel Mwai Ngatia/Legal/KRA@KRADate: 09/03/2025 11 :43 AMSubject: Lydiah Njeri WaweruI refer to our meeting yesterday with Mr. Kanyari.Kindly provide the following records for our review: Grounds for objection; Excel reconciliation of the WVAT certificates; Audited Financial Statements for the years under contention; Letter appointing Mr. Kanyari as your legal representative. We would appreciate it if you could furnish the above documents at your earliest convenience, but not later than 9th September 2025.Kind regards,”c.The Respondent emailed the Appellant on 19th September 2025 with the Objection decision.1.The Tribunal also observes that the Appellant submitted extensively on the objection invalidation provision, Section 51(4) of the Tax Procedures Act, citing that the Respondent breached her right to fair administrative action by failing to comply with Section 51(4) of the Tax Procedures Act. The Tribunal is of the considered view that the Appellant misguided herself by purporting that the Respondent had invalidated her objection application. No evidence had been placed before the Tribunal to show that the Respondent invalidated the Appellant’s objection application. The Tribunal notes that the Respondent issued an Objection decision after the considering the Appellant’s objection, and that the Objection decision is the impugned decision in this appeal. Consequently, the Tribunal will not delve into analysing an objection application invalidation that neither materialised nor is the subject of this appeal.2.Turning to the records, the Tribunal first addresses the scope of the grounds before it. The Tribunal refers to Section 56(3) of the Tax Procedures Act which provides as follows regarding grounds of appeal: -“ 56.(3)In an appeal by a taxpayer to the Tribunal, High Court or Court of Appeal in relation to an appealable decision, the taxpayer shall rely only on the grounds stated in the objection to which the decision relates unless the Tribunal or Court allows the person to add new grounds.” 68.It is not disputed by the Parties, and admitted by the Appellant that she did not furnish the Respondent with the objection grounds, Excel reconciliation of the WHVAT certificates and Audited Financial Statements during the objection review process. The Tribunal’s observation is that the substantive grounds now advanced by the Appellant to impugn the assessments were never placed before the Respondent at the objection stage. 69.The Tribunal nevertheless perused all the documents which the Appellant presented in this Appeal, which were as follows:a.Notice of intention to carry out a compliance check dated 3rd February 2025.b.Notice of assessment dated 26th June 2025.c.Objection application acknowledgment receipts for Income tax and VAT dated 28th July 2025.d.The Objection decision dated 19th September 2025.e.iTax excerpt of summary of additional assessment orders.f.iTax excerpt of Income tax additional assessment for the year 2020.g.iTax excerpt of VAT additional assessments for December 2020, December 2021, December 2022, December 2023 and December 2024.h.iTax excerpt of Income tax additional assessment for the year 2020, 2021, 2022 and 2023.i.Confirmation of assessment notices of Income tax and VAT dated 2nd May 2025. 70.The Tribunal finds that the substantive grounds by which the Appellant now seeks to impugn the assessments as excessive and erroneous are grounds she could and ought to have raised in her objection, but did not. Raised for the first time on appeal, without leave of the Tribunal, they offend Section 56(3) of the Tax Procedures Act. To entertain them would reopen the objection process and prejudice the Respondent, who had no opportunity to consider them before issuing its Objection decision. The Tribunal accordingly declines to consider those grounds. 71.The documents listed above, which the Appellant placed before the Tribunal, are confined to the Respondent’s own notices, the Appellant’s objection acknowledgments, and iTax excerpts of the assessments. None of them is a substantive transactional record. Even before this Tribunal, the Appellant did not produce any of the documents the Respondent had requested on 3rd September 2025, nor any of the receipts, accounts, books or reconciliations a taxpayer is required to maintain under Section 54A of the Income Tax Act, Section 43 of the VAT Act and Section 23 of the Tax Procedures Act, and by which the turnover variances underlying the assessments could have been explained. 72.The absence of these records is fatal to the Appellant’s case. Her grounds of appeal amount to assertions that the assessments are excessive and erroneous, unsupported by any evidence capable of disproving them. Mere averment of a substantive tax position, however elaborate, does not discharge the statutory burden of proof placed upon the Appellant. 73.The Tribunal is guided by the case of CMC Aviation Ltd v Cruisair Ltd (1) [1978] KLR 103 where Madan J. held that: -“Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth.” 74.The Appellant failed to discharge the burden placed on her by Section 56(1) of the Tax Procedures Act and Section 30 of the Tax Appeals Tribunal Act. 75.Consequently, the Tribunal finds that the Respondent was justified in confirming the Income tax and VAT additional assessments. Final Decision 76.The upshot of the above analysis is that the Tribunal finds that the Appeal is unmeritorious. The Tribunal accordingly proceeds to issue the following Orders:a.The Appeal be and is hereby dismissed.b.The Objection decision dated 19th September 2025 be and is hereby upheld.c.Each party to bear its own costs. 77.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JUNE 2026.………………………………ROBERT M. MUTUMACHAIRMAN………………………………JIMMY M. MALLAMEMBER………………………………DR. TIMOTHY B. VIKIRUMEMBER………………………………GLORIA A. OGAGAMEMBER