[2024] KETAT 1550 (KLR)

Sny Motors Limited v Kenya Revenue Authority (Tax Appeal E910 of 2023) [2024] KETAT 1550 (KLR) (8 November 2024) (Judgment)

Neutral citation: [2024] KETAT 1550 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E910 of 2023

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

November 8, 2024

Between

Sny Motors Limited

Appellant

and

Kenya Revenue Authority

Respondent

Judgment

Background 1. The Appellant is a private limited company incorporated on 11th September, 2018 and motor vehicle dealer based in Mombasa, importing vehicles from Japan.

2. The 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 Kenya Revenue Authority 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.

3. The Respondent issued a confirmation assessment notices on 15th September 2023 fully rejecting Appellant’s objection on VAT assessments for the period December 2019, June 2020 and August 2021 vide reference numbers KRA20231708XXXX, KRA 2023170XXXX KRA 202317087XXXX respectively.

4. The Appellant sought to appeal against the Respondent’s decision dated 26th June 2023 through its Notice of Appeal dated and filed on 7th December 2023.

The Appeal 5. The Appeal is based on the memorandum of appeal dated 6th December 2023 and filed on 13th December 2023 raising the following grounds of Appeal:a.That the director was sick and the Respondent proceeded for assessments; andb.That the matter be heard by the Alternative Dispute Resolution.

Appellant’s Case 6. The Appellant relied on its statement of facts dated 16th December 2023 and filed on 13th December 2023.

7. The Appellant stated that the reason the VAT and Income tax assessments are at variance is due to some missing imports, which were carried out in year 2021.

8. The Appellant asserted that the KRA team was in a hurry to make assessments yet the director was sick.

Appellant’s Prayers 9. The Appellant urged this Tribunal to nullify the assessments and the Objection Decision.

Respondent’s Case 10. The Respondent failed to defend itself in this matter and accordingly, on 11th September, 2024 the case was marked by the Tribunal as being undefended.

Issues for Determination 11. On 11th September, 2024, this matter came before the Tribunal for hearing and it was noted that whereas the parties had been accorded ample time to file their written submissions neither party complied. Accordingly, the Tribunal proceeds to determine this case on the basis of the Appellant’s pleadings.

12. The Tribunal having considered the Memorandum of Appeal and the Appellant’s Statements of Facts, puts forth the following issues for determination:a.Whether the Appeal is incompetent for non-compliance with Section 13(b) of the Tax Appeals Tribunal Act, CAP 469A of the Laws of Kenya.b.Whether Respondent’s objection decision dated 15th September 2023 was justified.

Analysis and Findings 13. The Tribunal having considered the parties’ pleadings puts forth the following issues for determination:(a)Whether the Appeal is incompetent for non-compliance with Section 13(b) of the Tax Appeals Tribunal Act, CAP 469A of the Laws of Kenya.

14. The Tribunal notes the following provisions of Section 13 (1) (b) of the Tax Appeals Tribunal Act CAP 469A of the Laws of Kenya (hereinafter “TATA”)“A notice of appeal to the Tribunal shall—(b)be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner.’’

15. The Respondent issued its objection decision dated 15th September 2023. The Appellant lodged its Notice of Appeal on 7th December 2023. Pursuant to Section 13 (1) (b) of TATA, it is evident that the Appellant delayed the filing of its Appeal within the statutorily required period of 30 days. The next issue that the Tribunal will determine in this context is whether the Appellant sought leave to file its Appeal out of time.

16. The Tribunal notes the following provisions of Section 13(3) of TATA:‘‘The Tribunal may, upon application in writing, extend the time for filing the notice of appeal and for submitting the documents referred to in subsection (2).’’

17. Having perused the Appellant’s bundle of documents, the Tribunal observes that there is no application by the Appellant seeking leave to file its Appeal out of time. The Tribunal stands guided by the following holding by the Supreme Court in the case Nicholas Kiptoo Arap Korir Salat v TheIndependent Electoral and Boundaries Commission and 8 Others Application No. 16 of 2014:‘‘No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court.’’

18. The Tribunal notes that having found itself in the circumstances that it did, the Appellant, failed to seek the remedy of applying for leave from the Tribunal to file its Appeal out of time. Consequently, the Appeal is incompetent for non-compliance with section 13 (1) (b) of TATA and is available for striking out.

19. Having so made the determination that the Appeal herein is incompetent, the Tribunal will not delve into the second issue that fell for its determination as the same is rendered moot.

Final Decision 20. The upshot to the foregoing is that the Appeal fails and accordingly, the Tribunal makes the following Orders:a.The Appeal be and is hereby struck out.b.Each party to bear its own cost.

21. It is so Ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 8TH DAY OF NOVEMBER, 2024. CHRISTINE A. MUGA - CHAIRPERSONBONIFACE K. TERER - MEMBERELISHAH N. NJERU - MEMBEREUNICE N. NG’ANG’A - MEMBEROLOLCHIKE S. SPENCER - MEMBER