20040914 TZHC Arusha

\ cR I !N THE HlGB COURT OF TANZANIA AT ARUSHA CIV1L CASE NOo 6 OF 1999 .·rN THE HA~TER OF· TiiE SJU.ES- 'l'AX_ ACT 1976 AS AMENDED BETWEEN AF'.Ro-swrss HOTEL~ L'rD t/ a HarEL ~ • o • • • PLAINTIFF TANZANITE AND TANZAi"Hf:, REVENUEO o o • o .DEFENDANT AUTHORITY ~ ~ULI~ what is for determination in this ruling is a preliminary objection an a point of law raised by the defendant in its written statement of Defence on the competence of the suit filed by the plaintiff. As a matter of fact the defendant had raised two issues of objection but at the commencement of his oral submission, Mr. Masele, learned counsel for the defendant had abandoned the first ground of objection which is that the suit is time barred. The reamining ground ?.f objection is that the suit is bad for non-compliance with the prov~sions of section 47(5) of the sales Tax Act No 13 of 1976 •. . The preliminary objection aforesaid was heard before Hon Mushi, J (as he then was) 9/11/2001 and the ruling had been reserved. The suit concerns a dispute arising from the decision on the assessment of sales tax by. the, eonµnissioner for sale tax. Mr. Masele submitted that the law is that under s.47(9) of the sales tax Act any person aggrieved by ariy decision of the commissioner ., '" ' ••. /2 . f· • 2 on ~Y.- dispute with ..regard. to· ass.e.ssment ·o.f ..t.b..e-.amount·--o:t: tax . ·-·- ... payable or the liability to pay tax many within ninety days of being notified of the decision of the commissioner, appeal to the Appeals ·, Tribunalo ·rt was further submitted that since the Appeals Tribunal had not been established, an aggrieved person may within ninety days of being notified of the deci 9ion of the commissioner, in any dispute; file a suit in the High Court~ However, Learned Counsel for the defendant contended tht the plaintiff has not complied with the provisions of s.47(5) of the ~ct under which an aggrieved party is requised to deposit the amount in dispute with the commissioner before the Appeals Tribunal can proceed to hear and determine such appeal. In response Mr. Mahatane learned counsel for the plaintiff controvented the objection and submitted that the objection is not enable and that the requirement to deposit the amount in dispute, under s.47 (5) of the sales tax Act applies only to cases/appeals filed i_n the sales Tax Appeals Tribuna:J-, and not where the suit has been filed in the High Court. The question to be addressed by this court is whether the Provisions of Section 47(2) and (5) of the sales Tax Act, 1976 are applicable to a suit filed in this court relating to liability to pa:y sales tax. Section 47(2) reads:~ 11 Any person aggrieved by any decismon of the commission€r on any d~spute refersed to in subsection (1) may within ninety days of being notified of the decision of the commissioner appeal to the Appeals Tribunalo 11 and subsection (5) reads: 11 Where an appeal under this section is an appeal against a . decision of the commissioner requiEing the person appealing to pay o9oooodGoo/3 \ ( - 3 --any sum of ·money .by- way o.f tax. or penalty$-- the Appeals Tribunal shall not proceed to hear and <let.ermine such appeal until it is satisfied tbs the amount in dispute. has been deposited with the ----- ···-con:unissiQD-er • n It is not in dispute that at the matenial time the .Appeals , Tribunal had not been established, hence it was proper to file this suit under the provisions of s.55 of the Act. ,. Section 55 (3) provides:- 11 In any proceeding under this section the High Court may exereise in addition to its powers untler the Civil Procedu}e Code, 1966, any -of the powers confersed upon ah Appeals Tribunal by this Act. 11 I have cel'efully considered the respective submissions by both learned counsels in the context of the relevant provisions of the law. ·There is no doubt that under S047(5) the Appeals Tribunal is empawered to refuse to hear or determine an appeal before it until it_ is satisfied-that the amount in dispute has been deposited with the commissioner. In other words the Tribunal is empowered to order such deposit before proceeding with the hearing of the matter. By analogy, and under the provisions of s.55 (3) this court is empowered with all the powers confersed upori an Appeals Tribunal by the Act. In my view such powers include the power to demand the payment of the deposit of the amount in dispute before this eourt proceeds to hear or determine the suhi In order for the plaintiff to invoke section 55 of the sales tax Act 1976 the procedural requirements of section 47 (2) and (5) must complied with prior to filin~ the suit under so55 of the Act. (see High court civil case No. 271 of 1997 MAIRA SANZE s.co, Advocates 17ersus Tanzania Revenue .Authority (Daresalaam). ••o•••o/4 4 For the above reasons I am .iatisfied that the ... preliminary. objection has merit and it is hereby upheld. The suit filed i.s bad in law for non-compliance with S.47 {2) and (5) of the sales Tax Act, 1976 and it is hereby struck out with costs. .JUDGE 9/9/2004 Ruling delivered this 14/9/2004 in the presence of Mr• .Augu,stino n• souza for the plaintiff ~d Mr •.Masele for the defendant and Mariam 'court. :clerk. ..,._,h -- ' . I' ~- ,:,'-../ I) . . ..i. . f,:J / # .... ~·· R. J> - h JUDGE -. •. ~ ' -~.!-· 1. ',\Ii I ,· 14/9/2004 ,. '·-· /nun \J ,: 7