[2024] KETAT 1658 (KLR)

Wanczer Contractors Limited v Commissioner of Domestic Taxes (Tax Appeal E871 of 2023) [2024] KETAT 1658 (KLR) (Commercial and Tax) (21 November 2024) (Judgment)

Neutral citation: [2024] KETAT 1658 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Commercial and Tax

Tax Appeal E871 of 2023

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

November 21, 2024

Between

Wanczer Contractors Limited

Appellant

and

Commissioner of Domestic Taxes

Respondent

Judgment

Background 1. The Appellant is a limited liability company that deals in the provision of contractual services.

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. On 10th May 2023, the Respondent issued the Appellant with additional income tax assessments totaling Kshs 17,067,426. 00 in relation to income tax for review period ending 31st December 2019, 2020 and 2021. On 11th May 2023 the Respondent issued additional VAT assessments totaling Kshs 9,459,911. 00 for the months of May 2021, July 2021, April 2022 and June 2022.

4. On 10th June 2023 vide i-Tax, the Appellant lodged its notice of objection against the Respondent’s assessment which were acknowledged on even date by the Respondent.

5. On 4th August 2023, the Respondent rendered its objection decision fully rejecting the Appellant’s objections and confirming the additional principal tax assessments for income tax and VAT totaling Kshs 26,527,337. 00 as earlier issued.

6. Aggrieved by the Respondent’s objection decision dated 4th August 2023, the Appellant filed its Notice of Appeal dated 28th November 2023 on 6th December 2023.

The Appeal 7. The Appeal was premised on the following grounds as laid-out in the Memorandum of Appeal dated 28th November 2023 and filed on 6th December 2023:i.That the Respondent erred in fact and in law in assessing the tax payable.ii.That the Respondent erred in fact and in law in failing to consider the Appellant’s nature of business thereon.iii.That the Respondent erred in fact and in law by failing to consider the expenses and direct costs incurred by the Appellant to generate income.iv.That the Respondent erred in fact and in law for failing to accord the Appellant a fair hearing despite lodging an objection.

Appellant’s Case 8. The Appellant’s Statement of Facts were dated 28th November 2023 and filed on 6th December 2023.

9. The Appellant averred that the Respondent assessments failed to consider a general rated purchase totaling Kshs 53,994,785. 76 as well as other rated purchase of Kshs 10,259,278. 83. Additionally, that the VAT assessments increased the total principal tax payable by Kshs 8,607,516. 31.

10. It was the Appellant’s case that the Respondent erred in the method and model of arriving at the additional assessments as it failed to understand the Appellant’s industry, its working models and contractual obligations of the Appellant and that it was in the interest of justice that the Appeal herein should be allowed.

Appellant’s Prayer 11. The Appellant made the following prayers to the Tribunal:a.That this Appeal be allowed with costs.b.That the decision of the Respondent with regard to the tax payable be discharged and set aside.c.That the additional assessments issued by the Respondent for the period under review, together with the penalties and interest, were unlawful and improperly assessed and as such the same should be set aside.d.That the Tribunal be pleased to assess the tax payable to be commensurate with the actual transactions and evidence tendered.e.The Tribunal to consider vacating the additional assessments accordingly so that the going concern of the company is not threatened.f.That the objection decision under review be declared null and void and quashed in its entirety.g.Any other relief that the Tribunal deems fit.

Respondent’s Case 12. The Respondent replied to the Appeal through its Statement of Facts dated 5th December 2023 and filed on 8th January 2023.

13. The Respondent stated that the dispute herein arose from income tax and VAT assessments raised against the Appellant the basis of which was unsupported expenses in income tax returns filed for the review period coupled with under declared sales as compared to withholding certificates issued and unsupported input claims.

13. The Respondent asserted that whereas Section 3 of Income Tax Act, CAP 470 of the Laws of Kenya (hereinafter “ITA”) mandates it to charge tax, Section 5 of the Value Added Tax Act CAP 476 of the Laws of Kenya (hereinafter “VAT Act) provides for charge of income tax from employment. Further, the Respondent asserted that Section 35 of ITA provides for deduction of tax from certain income.

14. The Respondent asserted that the Appellant failed to maintain and produce documents as provided for under Section 59(1) of the Tax Procedures Act, CAP 469B of the Laws of Kenya (hereinafter “TPA”) which provides as follows:“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 authorized 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; orc.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.”

15. The Respondent stated that the Appellant failed to provide supportive documentation for income tax assessments that would have supported the disallowable expenses which included direct wages, depreciation, power, fuel, freight, transport and telephone expenses. Thus, the Appellant failed to discharge its burden of proof to the satisfaction of the Respondent as couched under Section 56 of the TPA.

Respondent’s Prayer 16. The Respondent made the following prayers to the Tribunal:i.That the Tribunal upholds the objection decision of 4th August 2023. ii.That the Tribunal dismiss the Appeal with costs.

Parties’ Written Submissions 17. The Appellant did not file its written submissions. The Respondent’s written submissions dated 5th August 2024 were filed on 12th August 2024 were adopted by the Tribunal during the hearing on 11th September 2024. The Respondent submitted as follows on a single issue that it had identified for determination:

Whether the Respondent erred in the computation and confirming the additional assessments. 18. The Respondent submitted that in exercising its mandate of issuing additional assessments, it relied on Section 31 of the TPA and that the Appellant failed to discharge its burden of proof by demonstrating that the Respondent erred in coming up to the tax position as provided for by Section 56 (1) of the TPA. In buffering this position, the Respondent cited the following holding of the Tribunal in the case of Grace Njeri Githua v Commissioner of Investigations and Enforcement [TAT No. 102 of 2018]:“In this Appeal, the Appellant has not provided the Tribunal with enough evidence to show that the net income the Respondent has based the tax assessment was not income or is subject to further cost deduction in arriving at a net profit. It is trite that the burden of proof is on the taxpayer to show that the tax so assessed is not due from her.”

19. The Respondent further held that the Appellant failed to shift the burden by raising valid objection against assessment as provided for under Section 51 (3) of the TPA, and that despite request for documents to support the objection raised, the Appellant failed to provide the same rendering the grounds raised thein as mere averments without basis. It was the Respondent’s assertion that the Appellant did not equally attempt, even before the Tribunal, to discharge its burden. The Respondent relied on the case of Boleyn International Limited vs Commissioner of Domestic Taxes[TAT No. 55 of 2018] where it was held as follows:“…on 8th March 2018, the Appellant lodged an objection with the Respondent. However, the said objection did not reiterate the ground of objection, the corrections required to be made and the reasons for the amendments. Neither did the Appellant provide the relevant documents in support of its alleged objection. Therefore, there was no conceivable way the Respondent would have considered the Appellant’s objection as the same did not place itself within the parameters of Section 51(3) of the TPA.”

20. The Respondent further relied on the case of Afya X-ray Centre Limited vs Commissioner of Domestic Taxes [TAT No 70 of 2017] and Section 107 of the Evidence Act, CAP 80 of the Laws of Kenya (hereinafter “Evidence Act”) in asserting that its additional assessments had no error and that its objection decision was right in law.

Issues For Determination 21. The Tribunal having carefully considered the parties’ pleadings, documentation adduced before it and the Respondent’s written submissions notes that this matter distills into the following single issue for its determination:Whether the Respondent’s objection decision dated 4th August 2024 was justified.

Analysis And Determination 22. The Tribunal having established a single issue for determination will proceed to analyze it as follows:

Whether the Respondent’s objection decision dated 4th August 2024 was justified. 23. The dispute herein stems from Respondent’s additional income tax assessments totaling Ksh 26,527,337. 00 in relation to income tax for years 2019, 2020 and 2021 as well as VAT for May 2021, July 2021, April 2022 and June 2022 which was confirmed in an objection decision dated 4th August 2023. On one hand, the Respondent held that income tax and VAT assessments raised against the Appellant were on the basis of unsupported expenses for income tax returns filed coupled with under declares sales as compared to withholding certificates issued and unsupported input claims. This position was contested by the Appellant who held that the Respondent failed to consider general and other rated purchases as well as expenses and direct costs incurred by the Appellant to generate income while assessing the tax liability.

24. The Tribunal notes that although the Respondent stated that the assessments were based on unsupported expenses in the income tax returns, under declared sales as compared to withholding income tax certificates and unsupported input claims, the Appellant asserted that the Respondent erred in the method and model of arriving at the additional assessments as it failed to understand the Appellant’s industry, its working models and contractual obligations.

25. The view of the Tribunal is that the crux of this matter rests on which method is most appropriate for the assessment of the tax due and payable by the Appellant. The Tribunal observes that Section 24 (2) of the TPA donates powers to the Respondent to assess any tax payer using information available to it, the cited section provides as follows:“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.”

26. The Tribunal observes that whereas the Respondent held that the Appellant failed to maintain and produce documents to support expenses as provided for under Section 59(1) of the TPA, the Appellant stated that the Respondent erred in fact and in law in assessing the tax payable and failing to accord the Appellant a fair hearing. The Tribunal further observes that even in the pleadings attached herein, the Appellant did not provide documentation it averred were shared with the Respondent. Accordingly, these were mere averments and were not corroborated by the Appellant. The Tribunal when faced with a similar matter in the case of Monaco Engineering Limited vs Commissioner Domestic Taxes TAT Appeal No. 67/2017 held as follows:“The Tribunal had indubitably been clear on the burden on tax payers to have documents in disputing tax assessments. This responsibility is precisely provided for in Section 54 A(i) of the ITA which provides thus; a person carrying on a business shall keep records of all receipts and expenses goods purchased and sold and accounts, books, deeds, contracts and vouchers which in the opinion of the Commissioner are adequate for the purpose of computing tax.”

27. The Tribunal’s view is that Appellant ought to have dislodged the Respondent’s assessments by adducing positive, competent and relevant evidence contesting the assessments. Accordingly, the Appellant would have discharged its burden of proof pursuant to the provisions of Section 56(1) of the TPA and Section 30 of Tax Appeals Tribunal Act, CAP 469A of the Laws of Kenya (hereinafter “TATA”).

28. The Tribunal at this juncture notes that the Appellant neither availed documentation controverting the Respondent’s assertions nor provided the Tribunal an alternative method of computing its tax liability that would have been sufficiently different from what the Respondent had used. The Tribunal in making its decisions has the mandate to determine the correct tax to be paid. Not a shilling more ,not a shilling less. The Tribunal reiterates its holding in the case of Joycott General Contractors Limited –VS- Kenya Revenue Authority [TAT No 28 of 2018] where the Tribunal held as follows:“…we find that the Appellant seems to forget that it bears the burden of proof, in law, to demonstrate to this Tribunal that the Respondent’s assessment was wrong. Especially with regards to the under declarations and variance in respect of VAT and income sales. On the contrary, the Appellant has not bothered to substantially traverse the assessment raised. All it has done is to make sweeping and expansive accusations without substantial support.”

29. Accordingly, the Tribunal is of the firm view that in the absence of opposing evidence the Respondent’s objection decision dated 4th August 2023 was justified in the subsisting circumstances.

Final Decision 30. The upshot of the foregoing is that the Appeal lacks merit and accordingly, the Tribunal proceeds to make the following Orders:a.The Appeal be and is hereby dismissed.b.The Respondent’s objection decision dated 4th August 2023 be and is hereby upheld.c.Each party to bear its own costs.

31. It is so Ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 21ST DAY OF NOVEMBER, 2024. CHRISTINE A. MUGA - CHAIRPERSONBONIFACE K. TERER - MEMBERELISHAH N. NJERU - MEMBEREUNICE N. NG’ANG’A - MEMBEROLOLCHIKE S. SPENCER - MEMBER