BKB Limited v Commissioner of Value Added Tax (CIV/APN 245 of 18) [2019] LSHC 27 (6 June 2019)

IN THE HIGH COURT OF LESOTHO (HELD AT MASERU) In the matter between:- CIV/APN/245/2018 BKB LIMITED APPLICANT AND COMMISSIONER OF VALUE ADDED TAX 1ST RESPONDENT LESOTHO REVENUE AUTHORITY 2ND RESPONDENT RULLING ON COSTS : CORAM HEARD : DELIVERED: Honourable Justice Makara 6 June, 2019 6 June, 2019 MAKARA J. [1] A determining factor in this case is that the Respondents agrees with the Applicant that the quantum of tax assessed by the 2nd respondent was not done in accordance with the procedure under section 28(5)(6) of VAT 2001. This is a procedural prerequisite before the 2nd Respondent reaches a final determination. To attest to this, the section provides; Where an assessment has been made under this section, the Commissioner shall serve the notice of the assessment on the person assessed, which notice shall state- The value added tax payable; The date the value added tax is due and payable; and; The time, place and manner of objecting to the assessment. (Court’s emphasis) • • • [2] As a result of the concession tendered by the Respondents on the procedural defects, the indication is that the assessment was not arrived at in accordance with the procedural imperatives provided for in the section. [3] The case assumed the new dimension when the Respondents belligerently maintained that notwithstanding their concession into the merits, they nevertheless, maintained that costs should not be awarded. A supportive reasoning which they vehemently held is that the fact that they have settled the matter in the merits, absolves them from being visited with costs. [4] On the contrary, the Applicant vigorously counter-argued that it is entitled to the costs of the litigation because the Respondents took an unreasonably long time to ascertain their position and thereby causing it to perpetually remain under precarious circumstances. It accordingly complained that this compelled it to resort to the Court for judicial intervention. To highlight the picture, it explained that had the respondents agreed on a settlement earlier before this application was brought to the Court, it would not insist on costs being awarded against the Respondents. [5] The Court appreciates that the Applicant was forced by the uncertainty of the Respondents whether or not they were intending to settle the matter. This is precisely what occasioned its decision to seek for justice in this Court and understandably, this has factual financial implications. [6] In the premises, the Court determines that the applicant is entitled to costs. E. F. M. MAKARA JUDGE For Applicants Adv. K. J. Selimo instructed by Sello : Mafatle Attorneys For Respondents : Adv. L. Mahao instructed by Mr. Dichaba Lesotho Revenue Authority