Josymu Hardware Limited v Commissioner of Domestic Taxes [2023] KETAT 139 (KLR)

Josymu Hardware Limited v Commissioner of Domestic Taxes (Appeal 343 of 2021) [2023] KETAT 139 (KLR) (Civ) (17 March 2023) (Judgment)

Neutral citation: [2023] KETAT 139 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Civil

Appeal 343 of 2021

E.N Wafula, Chair, Cynthia B. Mayaka, Grace Mukuha, Jephthah Njagi & AK Kiprotich, Members

March 17, 2023

Between

Josymu Hardware Limited

Appellant

and

Commissioner of Domestic Taxes

Respondent

Judgment

1. The Appellant is a company incorporated in Kenya under the Companies Act and is a registered taxpayer. The principal activity of the Appellant is a hardware shop.

2. The Respondent is a principal officer appointed under and in accordance with Section 13 of the Kenya Revenue Authority Act, and the Kenya Revenue Authority is charged with the responsibility of among others, assessment, collection, accounting and the general administration of tax revenue on behalf of the Government of Kenya.

3. The Appellant was profiled for return review/compliance check for the period 2015 - 2020 and a notice of review to the Appellant sent on 2nd November 2020.

4. The Respondent requested the Appellant to furnish it with the following documents, which were availed and examined:-a.Bank statements from 2015 to date.b.Audited accounts signed by the directors and tax computations for 2015 - 2019 years of income.c.Certified payroll records January 2015 to dated.VAT Control Account from January 2015 to date.e.Debtors and creditors listings 2015 - 2019 years of income.f.Loan agreements and statements.

5. The review exercise established findings that were communicated to the Appellant on 23rd November 2020 with a demand to pay taxes amounting to Kshs. 95,590,965. 00.

6. On 3rd March 2021, The Respondent issued 14 additional assessments totaling Kshs. 62,168,269. 92 for years 2015 - 2020 on the iTax system.

7. The Appellant objected to all the 14 assessments on iTax system between 10th March 2021 and 25th March 2021.

8. The Respondent then issued its objection decision on 28th May 2021.

9. The Appellant being dissatisfied with the objection decision filed this Appeal.

THE APPEAL 10. The Appeal is premised on the following grounds as stated in the Memorandum of Appeal filed on 24th June, 2021:-a.That the Appellant has regularly paid his taxes from the date of incorporationb.That the assessments are contrary to the relevant tax laws.

APPELLANT’S CASE 11. The Appellant’s case is premised on the following documents filed before the Tribunal:-a.The Statement of Facts filed on 24th June, 2021 together with the documents attached thereto.b.The Appellant’s written submissions dated 7th September, 2022 and filed on 9th September, 2022.

12. That the dispute arose out of 14 confirmed assessments made on various dates and highlighted below;# Assessment Date Assessment No Objection date Objection No Amount Tax Obligation

1. 03/03/2021 KRA202103038416 10/03/2021 KRA202103521623 7,370,292. 70 Income Tax

2. 03/03/2021 KRA202103030367 10/03/2021 KRA202103518845 5,655 VAT

3. 03/03/2021 KRA202102971491 10/03/2021 KRA202103518973 3,751,842. 72 VAT

4. 03/03/2021 KRA202103039999 12/03/2021 KRA202103619938 9,467,281. 80 Income Tax

5. 03/03/2021 KRA202103022810 12/03/2021 KRA202103618970 1,824. 83 VAT

6. 03/03/2021 KRA202102972195 12/03/2021 KRA202103619219 5,289580. 74 VAT

7. 03/03/2021 KRA202103033712 12/03/2021 KRA202103619428 121,258. 28 VAT

8. 03/03/2021 KRA202103041073 15/03/2021 KRA202103717754 15,371,406 Income Tax

9. 03/03/2021 KRA202102973319 15/03/2021 KRA202103716587 7,888,896. 16 VAT

10. 03/03/2021 KRA202103024259 15/03/2021 KRA202103717414 262,196. 90 VAT

11. 03/03/2021 KRA202103042726 23/03/2021 KRA202104434443 7,285,113 Income Tax

12. 03/03/2021 KRA202102974821 2303/2021 KRA202104434908 4,055,414. 56 VAT

13. 03/03/2021 KRA202103031382 25/03/2021 KRA202104604308 74,195. 10 VAT

14. 03/03/2021 KRA202102976983 25/03/2021 KRA202104604622 1,223,313. 12 VAT

Total 62,168269. 92

13. The objections to all the 14 assessments were lodged on the iTax system between 10th March, 2021 and 25th March 2021 as indicated on the summarytable above. The Appellant received the objection acknowledgements on all the 14 objections on the iTax system soon after filing each of the objections.

14. The Appellant submitted that the tax demanded in each of the assessments is contrary to the tax laws and that the Respondent acted contrary to the prevailing tax laws.

a) ASSESSMENT NUMBER KRA202103038416, DATED 3/3/2021,KSHS 7,370,291. 70, INCOME TAX. 15. The Appellant submitted that the Respondent acted contrary to Section 3(1)(2)(a)(i) of the Income Tax Act which clearly identifies when there is imposition of tax and states that:-“(1)Subject to, and in accordance with, this act, a tax to be known as income tax shall be charged for each year of income upon all the income of a person, whether resident or non-resident, which accrued in or was derived from Kenya.2. Subject to this act, income upon which tax is chargeable under this act is income in respect of-a.gains or profit from-i.any business, for whatever period of time carried on”.

16. That the Respondent erred in law by taxing the increase in directors’ account as follows;AmountDirectors Account 01/01/2016 Kshs. 46,209,005Directors Account 31/12/2016 Kshs. 55,725,194Increase in Directors account during the year Kshs. 9,516,189

17. That the Respondent erred in considering the increase as sales yet the increase in directors’ account is due to the following additions during the year:SUBDIVISION - Amount1. Salaries paid to directors where PAYE was deducted and remitted to KRA Kshs. 937,6002. Stocks from sole proprietorship injected to the company Kshs. 4,648,1243. Construction of a resort by the directors taken over by the company as its Kshs. 3,930,465Own investment Total Kshs. 9,516,189

18. That the evidence in support is as follows;__1. PAYE returns labeled 1 - 132. Returned stocks labeled 14A & 14 B3. Work in progress of Subukia Village villa; Labour Petty Cash Vouchers No 1 to 40 Construction Materials No 41 to 75

19. That this is contrary to Section 3(1)(2)(a)(I) of Income Tax Act cap 470 of the Laws of Kenya which defines taxable income and what income is subject to tax. That the increase in directors account do not constitute taxable income as per income tax section referred to above.

b. ASSESSMENT NUMBER KRA202103030367 DATED 3/3/2021, KSHS 5,655. 00 VAT 20. That this assessment is due to an error quoting invoice no 2732 of Kshs 5,655 instead of invoice no NBO307170. That the Respondent should have accepted the objection once the physical invoice was presented as it complied with Section 42(1) of the VAT Act of 2013 which clearly states what is a taxable invoice as follows;“(1)Subject to subsection (2), a registered person who makes a taxable supply shall, at the time of the supply furnish the purchaser with the tax invoice containing the prescribed details for supply.”That this invoice was availed to the Tribunal and labeled as number 19.

c. ASSESSMENT NUMBER KRA202102971491 DATED 3/3/2021 KSHS 3,751,842. 72 VAT. 21. That the Respondent raised VAT on increase in directors account as follows:-AmountDirectors Account 01/01/2016 Kshs. 46,209,005Directors Account 31/12/2016 Kshs. 55,725,194Increase Kshs. 9,516,189

The increase is explained as follows;SUBPARA 1. Salaries paid to directors and not withdrawn Kshs. 937,600SUBPARA 2. Stocks injected by directors Kshs. 4,648,124SUBPARA 3. Construction of a resort by the company taken Kshs. 3,930,465 over by the company as its own investment Kshs 9,516,189__ 22. That the above increase is not vatable income because the VAT Act 2013 under Section “13 and 14 clearly defines what is a taxable supply as follows;“13(1)subject to this Act, the taxable value of a supply, including a supply of imported services, shall be-a.The consideration for the supply; orb.If the supplier and recipient are related, the open market value of the supply3. Subject to subsections (4) to (6), the consideration for a supply, including a supply of imported services, shall be the total of-a)The amount in money paid or payable, directly or indirectly, by any person, for the supply; orb.the open market value at the time of the supply of an amount in kind paid or payable, directly or indirectly, by any person for the supply; andc.any taxes, duties, levies, fees and charges(other than value added tax) paid or payable on, or by reason of the supply,Reduce by any discounts or rebates allowed and accounted for at the time of the supply.(5)In calculating the value of any services for the purposes of subsection (1), there shall be included any incidental costs incurred by the supplier of the services in course of making the supply to the client:Provided that, if the commissioner is satisfied that the supplier has merely made a disbursement to a third party as an agent of his client, then such disbursement shall be excluded from the taxable value.”

23. That this assessment is erroneous and contrary to the law. The increase is supported by documents labeled as follows;a.PAYE returns labeled 1 - 13b.Returned stocks labeled 14A & 14Bc.Work in progress of Subukia Village villa; Labour Petty Cash Vouchers No 1 to 40 Construction Materials No 41 to 75d)ASSESSMENT NUMBER KRA202103039999, DATED 3/3/2021, KSHS 9,467,281. 80, INCOME TAX.AmountDirectors Account 31/12/2017 Kshs 23,765,315Directors Account 01/01/2017 Kshs 55,725,194Difference Kshs 31,959,879

24. That this was an error in uploading the accounts on iTax platform and the Appellant applied for the correction of the error to the Respondent on 13/08/2021 as per Section 31(2) of the Tax Procedure Act that states;“A tax payer who has made self- assessment may apply to the commissioner, within the period specified in subsection (4) (b) (i), to make an amendment to the taxpayer’s self-assessment.”

25. The Respondent never responded to the application for amendment of the self-assessment. That at no time did the Appellant dispose the company assets as per the following insurance certificates and values are as follows;Date Name of the Assets Insurance Amount12/02/2013 M/Vehicle KBQ 513P AA Kenya 3,570,00014/12/2015 M/Vehicle KAX 866S AA Kenya Inspection 2,320,00011/06/2021 Building plot Subukia UAP 40,600,00013/96NKR Subukia Nakuru27/06/2016 M/Vehicles KBN 824F AA Kenya inspection 1,710,000Total 48,200,000

26. That the assets were held by the company during the year 2017 as per the certified copies of documents tendered before the Tribunal and numbered A,B,C,D.

e) ASSESSMENTS NUMBER 202103022810, DATED 3/3/2021 KSHS 1,824. 83 27. That this assessment was based on a disallowed invoice of Kshs 13,231. 00 with VAT amount of Kshs. 1,824. 83. 00. That this invoice was presented to the Commissioner on 28/05/2020 and he has held on the invoice ever since. This invoice complied with VAT Act 2013 Section 42(1) that states as follows:-“Subject to subsection (2), a registered person who makes a taxable supply shall, at the time of the supply furnish the purchaser with the tax invoice containing the prescribed details for supply.”

28. That this invoice is among those delivered to the Commissioner on 28/05/2020 and that he seems to have misplaced the documents.

f) ASSESSMENT NUMBER KRA20210303712, KSHS 5,289,580. 74 VAT. 29. That the Respondent raised vat on the increase in directors’ account as follows;AmountDirectors Account 31/12/2017 Kshs. 23,765,315Directors Account 01/01/2017 Kshs. 55,725,194Difference Kshs. 31,959,879

30. That the Appellant brought to the attention of the Respondent that there was an error in uploading the financial statements onto the iTax portal on 13/05/2021 and applied for data correction by;a.Letter labeled number 76b.Financial Statements 2017 labeled number 77c.Financial statements 2018 labeled number 78d.Certified copy of assets, ownership and valuations labeled A.B.C.D and tendered before the Tribunal as annex D.

31. That the Respondent has not responded to this application.

g. ASSESSMENT NUMBER KRA202103033712 DATED 3/3/2021, KSHS. 121,258. 28 VAT. 32. That this assessment was as a result of disallowing the following invoices;Date Tax Invoice No Supplier Exclusive Amount VAT18/10/2017 9847 Five Star Agencies Kshs. 342,521. 56 Kshs. 54,803. 45

10/10/2017 7198 Timsales Kshs. 375,862. 50 Kshs. 60,138

21/10/2017Total 8856 Crown Paints Kshs. 39,480. 19Kshs. 757,864. 25 Kshs. 6,319. 83Kshs. 121,258. 28

33. That the Appellant presented these invoices to the Respondent on 28/05/2020. That the Respondent is unable to avail these invoices for the Appellant to support its appeal to the above assessment. That to support delivery of the documents the Appellant attaches delivery letter to the Respondent labeled number E.

h. ASSESSMENT NUMBER KRA202103041073, DATED 3/3/2021 KSHS. 15,371,406,00 INCOME TAX. 34. That the Respondent raised tax on the following figures in financial statements;AmountDirectors Account 01/01/2018 Kshs. 23,765,315Directors Account 31/12/2018 Kshs. 55,725,194Difference Kshs. 31,959,879 35. That this assessment is similar to the assessment no KRA 202102972195 whereby the directors account was understated by Kshs 23,765,315 as at 31/12/2017 and the same was corrected to read Kshs 55,725,194 as at 31/12/2018, the difference of Kshs 31,959,879 in both years are mere posting errors and do not constitute untaxed income since the physical assets are supported by:-

a.Application for data correction labeled 76. b.Financial statements year 2017 labeled 77c.Financial statements year 2018 labeled 78d.Certified copies of assets and ownership labeled A,B,C,D

i. ASSESSMENT NUMBER KRA202102973319 DATED 3/3/2021 KSHS. 7,888,889. 16 VAT 36. That the Respondent has taxed increase in directors account vat as follows;AmountDirectors Account 01/01/2018 Kshs 23,765,315Directors Account 31/12/2018 Kshs 55,725,194Difference Kshs 31,959,879

37. That the Respondent levied VAT on the increase in directors account yet this is a correction of error incurred on 31st December, 2017 when the accounts were understated. That the Appellant made application to correct this error as per Section 31(2). The application to amend the record was communicated to the Commissioner on 13th May, 2021.

38. That to support this application the Appellant furnished the Commissioner with the following;-.a.Application for data correction labeled 76. b.Financial statements year 2017 labeled 77c.Financial statements year 2018 labeled 78d.Certified copies of assets and ownership labeled A,B,C,D

j. ASSESSMENT NUMBER KRA 202103024259, DATED 3/3/2021 KSHS 262,196. 90 VAT 39. The Commissioner raised assessment on the following invoices;DateTax invoice NoSupplier Exclusive amountVAT05/07/2018 7394 Maruti Steel Kshs. 804,394. 44Kshs. 128,703. 1111/07/2018 1552 Termal wire Kshs. 834,336. 19Kshs. 133,493. 79Kshs. 1,638,730. 63Kshs. 262,196. 90

40. That these were invoices that complied with Vat Act 2013 Section 42(1) that states;“Subject to subsection (2), a registered person who makes a taxable supply shall, at the time of the supply furnish the purchaser with the tax invoice containing the prescribed details for supply.”

41. The Appellant submitted that it is unable to present these invoices since the Respondent misplaced the documents as per delivery made on 28th May, 2020 and tendered delivery note labeled E.

SUBPARA k) - ASSESSMENT NO KRA 202103042726DATED3/3/2021KSHS7,285,113. 00 INCOME TAX. 42. That the Respondent raised VAT assessments on the following workings;AmountSales as per accounts (exclusive of VAT) Kshs 48,157,284Bankings as per bank statement Kshs 77,993,270Difference Kshs 29,835,986

43. That this assessment is erroneous since bankings are VAT inclusive.1. The respondent has failed to recognize that included in the bankings were borrowed funds from individuals’ numbers 1 to 77. To confirm authenticity the lenders, the Appellant gave their details as follows;a.Namesb.National Identification Numbersc.Telephone Numbers2. That the application to Equity Bank to secure working capital dated 17/09/2019.

44. That the Appellant gave an application letter to Equity Bank Ltd to support its claim of securing funds to boost working capital. These individuals were confirmed to be filers at the objection stage.

l. ASSESSMENT NUMBER KRA 202102974821 DATED 3/3/2021 KSHS. 4,055,414. 56 VAT 45. That the Respondent worked the VAT on the following differences;AmountSales as per accounts exclusive of vat (year 2020) Kshs 48,157,284 Bankings as per bank statement Kshs 77,993,270Difference Kshs 29,835,986

46. That the Respondent erred in taxing excess bankings for the following reasons;a.The Sales in accounts are reported net of taxesb.Bankings are inclusive of taxes hence double counting vat.c.The Respondent taxed borrowed funds to boost working capital and supported by lenders confirmations numbered 1 to 77.

m. ASSESSMENT NO KRA 202103031382 DATED 3/3/2021 KSHS 74,195. 10 VAT 47. That the Respondent raised assessment on the following:Date Supplier Tax Invoice No Exclusive Amount VAT 27/05/2020 Tarmal Wire 320919 Kshs. 459,614. 04 Kshs. 64,345. 96

48. That the Respondent raised assessment on a valid tax invoice as per VAT ACT2013 section 42(1)that states;Subject to subsection (2), a registered person who makes a taxable supply shall, at the time of the supply furnish the purchaser with the tax invoice containing the prescribed details for supply.

n. ASSESSMENT NUMBER KRA202102976983 DATED 3/3/2021 KSHS 1,223,312. 12 YEAR 2020 49. That the Respondent raised assessment on the following figures;AmountGross Bankings 30/09/2020 Kshs. 33,530,892Gross sales Vat 3s 30/09/2020 Kshs. 47,444,283Difference (Kshs. 13,916,391)

50. That this is an erroneous assessment since the Appellant has shown more sales in the ETR from January to September 2020.

51. That in support of this contention, the Appellant availed the following documents:-a.VAT3s January to September 2020 labeled QB1 To QB10b.Bank statements for the same period 2020 numbers Q1 to Q38That the above shows that the ETR machine captured more sales than the bankings by Kshs. 13,916,391. 00 proving that this assessment has no basis since no sales were omitted.

Appellant’s prayers. 52. The Appellant makes the following prayer to the Tribunal:-a.That the decision of the Respondent be set aside and annulled or varied in such a manner as may appear just and reasonable.b.That the Respondent should accept the self-assessments which are true and correct reflecting that the taxpayer filed his actual tax obligation.c.That the Respondent should accept the evidence produced in the reasons for objection.

RESPONDENT’S CASE. 53. The Respondent’s case is premised on the hereunder filed documents:-a.The Respondent’s Statement of Facts dated and filed on 23rd July 2021 together with the documents attached thereto.b.The Respondent’s written submissions dated 9th day of September 2022 and filed on the same date together with the authorities attached thereto.

In the Statement of Facts, the Respondent stated as follows:- 54. That the Appellant was profiled for return review/compliance check for the period 2015 - 2020 and a notice of review to the Appellant sent on 2nd November 2020.

55. That the Respondent requested the Appellant to furnish it with the following documents, which were. availed and examined:-a.Bank statements Bank statements 2015, 2016, 2019, 2020b.Audited accounts 2015, 2016, 2019c.Income tax and VAT returns filed on iTax 2015-2020d.VAT Input analysise.Purchase invoices 2019-2020f.Statements signed by individuals confirming amounts loaned to taxpayer.g.Auditors' correspondence on issues/queries raised.

56. That the return review exercise established findings which were communicated to the taxpayer on 23rd November, 2020.

57. That the Respondent made the below findings, which formed the basis of assessments:-i.Double claims of purchases invoices in VAT returns resulting to tax payable of Kshs. 734,274. 00. ii.Undeclared sales reported in director's account. Movements in director's account reported in income tax returns differed with audited accounts presented by the auditor. Moreover, the director's individual declarations did not match the directors account balances;iii.Undeclared sales found in variance between banking and sales declared;iv.Variances in Purchases declared in VAT compared to Income tax; (v)Mismatch of closing stock 2017 and opening stock 2018.

58. That the Respondent issued additional assessments totaling Kshs. 86,922,712. 00 for years 2015 - 2020 based on the above findings and a notice of assessment was sent to the Appellant on 3rd March 2021

59. That the assessments issued for the period 2015 were vacated because of the 5- year statutory timelines for amendment of returns. As a result, the total assessments under dispute reduced to Kshs. 62,168,269. 92.

60. That the Appellant objected to the assessments on iTax on different dates within the month of March 2021.

61. That the Appellant provided documents listed in paragraph 5 above. However, the documents availed were not sufficient to vacate the assessment of Kshs. 62,168,269. 92.

62. That the Respondent therefore issued its objection decision on 28th May 2021.

63. That the Appellant being dissatisfied with the decision of the Respondent appealed against the same.

64. That the Respondent relied on the following relevant statutes:-i.Sec, 3(1) of the Income Tax Act (Cap 47j)- Subject to, and m accordance with, this Act, a tax to be known as income tax shall be charged for each year of income upon all the income of a pe son, whether resident or non- resident, which accrued in or was derived from Kenya.ii.Sec. 3(2)(a)(i) of the Income Tax Act (Cap 470) Subject to this Act, income upon which tax is chargeable under this Act is income in respect ofa.gains or profits from -(i)a business, for whatever period of time carried on;iii.Sec. 31(1)(c) of the Tax Procedures Act 2015 - (1) 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-(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.

65. The Respondent indicated that that it was justified in raising additional assessments for VAT and Income Tax for the period January 2016 to December 2020.

66. That in this case, the Appellant filed its objection without providing all the requisite documents to counter the assessments thereby leading to the objections being rejected.

67. That an analysis of records availed by the Appellant showed evidence of overstated purchases in income tax returns compared to purchases in VAT, unexplained movement in directors' account deemed as sales/undeclared income was not well supported as there were differences in directors account balances from the self-assessment returns.

68. That further, there was overstatement by the Appellant of closing stocks, which was evident in the self-assessment returns filed for 2018 and 2017.

69. That undeclared sales found in variance between banking and sales declared was not sufficient as the list of friends with corresponding amounts lent did not support this. That the claim of deposits from friends could not be verified to support undeclared deposits hence explanation that extra bankings were deposits by certain persons into the Appellant's account to boost the account for overdraft qualification was not sufficient. That the Directors' drawings were not adequately supported and could not be verified as claimed.

70. That salaries and wages paid to directors could not be verified from payrolls and PAYE returns. That there were double claim of invoices from Thermal Wire Limited, Maruti Steel, Mache hardware, Five-star agencies, Timsales and Crown paints suppliers. That there was an instance of credit note issued but not captured.

71. That the Respondent thus avers that it issued its objection decision based on the facts and documents submitted by the Appellant, which were extensively reviewed and the taxes payable found to be Kshs. 62,168,269. 92.

72. That the Respondent avers that the allegations of the Appellant as laid out in its Memorandum of Appeal and Statement of Facts unless where in agreement by the Respondent are unfounded in law and not supported by evidence.

73. In the submissions, the Respondent stated that the only issue for ddetermination is as follows:-Whether the Respondent’s demand for Income Tax and VAT of Kshs. 62,168,269. 92 for the years 2015-2020 was justified;

74. The Respondent submitted that the Appellant, being a corporate body falls under the ambit of Section 3(2)(a)(i) (ii) of the Income Tax Act which provides that:-“Subject to this Act, income upon which tax is chargeable under this Act is income in respect of-(a)gains or profits from-i.a business, for whatever period of time carried on;ii.employment or services rendered….”

75. That the wording of the above provision of the law is very clear. All gains or profits made by the Appellant in the course of its business is chargeable to income tax.

76. That on this issue, the Court in Republic vs. Kenya Revenue Authority Ex-parte Bata Shoe Company (Kenya) Limited [2014] eKLR, expressed itself as hereunder:“…….Payment of tax is an obligation imposed by the law. It is not a voluntary activity. That being the case, a taxpayer is not obliged to pay a single coin more than is due to the taxman. The taxman on the other hand is entitled to collect up to the last coin that is due from a taxpayer.”

77. That analysis of records availed by the Appellant showed evidence of overstated purchases in income tax returns compared to purchases in VAT, unexplained movement in directors’ account which has been deemed as sales/undeclared income was not well supported as there are differences in directors account balances from the self-assessment returns.

78. The Appellant, upon being requested by the Respondent to provide documents in support of its objection did not provide the same in detail to counter the additional assessments.

79. That the correspondences between the Appellant and the Respondent are proof that the Respondent followed the correct legal procedures in asking Appellant to provide documentation or further information in support of its objection. That this position was clearly brought out in Kapa Oil Refineries Ltd vs. Kenya Revenue Authority, Commissioner of Income Tax, andCommissioner of Value Added Tax & Commissioner of Domestic Taxes, Nairobi JR Misc. Application No. 283 of 2009.

80. That inspite of being requested to provide further documents to counter the Respondent’s audit findings in the spirit of fair administrative action, the Appellant did not comply.

81. That Section 59 of the Tax Procedures Act, 2015 on production of records provides that:-“(1) 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; or (c) 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.”

82. That consequently and pursuant to Section 31 of the Tax Procedures Act, which empowers the Respondent to amend an assessment based on the available information and to the best of the Respondent’s judgment, the Respondent issued additional assessment on Income Tax & VAT totaling to Kshs. 62,168,269. 92.

83. That Section 56(1) of the Tax Procedures Act states that, “in any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect.”

84. That in addition, Section 30 of the Tax Appeals Tribunal Act of 2013 on burden of proof provides that:“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; orb.in any other case, that the tax decision should not have been made or should have been made differently.”

85. That being guided by the above provisions of the law, the Respondent submitted that the Appellant not only failed to provide documents as required by law but also failed to discharge its burden of proving that the assessment as issued by the Respondent was incorrect/ought not to have been made/should have been made differently.

86. That from the analysis of the Appellant’s records, the Respondent established that the Directors of the Appellant Company withdrew amounts from the company for personal use.

87. That these amounts were additional benefits to the Directors and were therefore subject to PAYE as per Section 5(2)(a) of the Income Tax Act on income from employment which states that:“(2) For the purposes of section 3(2)(a)(ii) “gains or profits” includes—SUBPARA (a)any wages, salary, leave pay, sick pay, payment in lieu of leave, fees, commission, bonus, gratuity, or subsistence, travelling, entertainment or other allowance received in respect of employment or services rendered, and any amount so received in respect of employment or services rendered in a year of income other than the year of income in which it is received shall be deemed to be income in respect of that other year of income….”

88. That the Appellant asserted that the said drawings were purportedly correcting errors made in 2017. That when the Respondent asked for evidence to support the said assertions, the Appellant failed to provide the same.

89. That the drawings made by the Appellant’s directors were therefore charged as benefits pursuant to the provisions of Section 37 of the Income Tax Act on deductions of tax from emoluments.

90. That the said Section provides that:“(1) An employer paying emoluments to an employee shall deduct therefrom, and account for tax thereon, to such extent and in such manner as may be prescribed.(2)If an employer paying emoluments to an employee fails—a.to deduct tax thereon;b.to account for tax deducted thereon; orc.to supply the Commissioner with a certificate provided by rules prescribing the certificate, the Commissioner may impose a penalty equal to twenty-five per cent of the amount of tax involved or ten thousand shillings whichever is greater, and the provisions of this Act relating to the collection and recovery of that tax shall also apply to the collection and recovery of the penalty as if it were tax due from the employer…”

91. That the onus of proof that these drawings were not channeled to personal use is on the Directors who failed to provide these reconciliations even after the Respondent requested for the same.

92. That in this case, the Appellant filed its objection without providing all the requisite documents to counter the assessments thereby leading to the objections being rejected.

93. That the Tribunal has held severally that the Respondent having issued the assessment, it was the responsibility of the Appellant to prove its case by providing sufficient evidence to support its position. It was not enough to just allege that there were errors or that the assessments were excessive. This was the case in TAT No. 421 of 2019 – Ole Seguti Investments Ltd vs. Commissioner of Domestic Taxes.

94. That Hon Makau J in Primarosa Flowers Limited vs. Commissioner of Domestic Taxes (2019) eKLR, whilst making reference to the Australian case of Mulherin vs. Commissioner of Taxation [2013] FCAFC 115 held that:-“…The onus is on the taxpayer in proving that assessment was excessive by adducing positive evidence which demonstrates the taxable income on which tax ought to have been levied….”

95. That further, Hon Kasango J in Sheria Sacco Limited vs. Commissioner of Domestic Taxes (2019) eKLR in dismissing the Appellant’s Appeal held the following on the issue of the Taxpayer discharging its burden of proof:“……The SACCO however needs to appreciate that what the Tribunal was dealing with was an appeal against the Commissioners’ confirming notice that the SACCO had taxes to pay. When one appreciates that then the submissions of the Commissioner, under this head, are correct that the burden of proof lay on the SACCO. This is what is provided under Section 30(b) of the Tax Appeal Tribunal Act cap 40. That section provides: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; orb.In any other case, that the tax decision should not have been made or should have been made differently.The SACCO did not meet that burden of proof……”

96. That the Appellant failed to discharge the burden of proof as required by law and this Appeal therefore lacks merit.

Respondent’s Prayers 97. The Respondent prays that The Tribunal considers the case and:a.Dismisses the Appeal with costs.b.Upholds the Respondents Assessments.

ISSUES FOR DETERMINATION 98. The Tribunal has carefully studied the pleadings and documentation filed by both parties and is of the respectful view that the only issue arising for its determination is as follows:-Whether the Respondent erred in fact and in law in issuing additional tax assessments.

ANALYSIS AND FINDINGS 99. Having determined the issue falling for determination, the Tribunal proceeded to deal with the same as hereunder.

100. The Appellant was profiled for return review/compliance check for the period 2015-2020 and a notice for review was sent to the Appellant on 2nd November 2020.

101. The return review exercise established findings communicated to the Appellant on 23rd November 2020 with a demand to pay taxes amounting to Kshs. 95,590,965. 00.

102. On 3rd March 2021, The Respondent issued 14 additional assessments totaling Kshs. 62,168,269. 92 for years 2015-2020 on the iTax system.

103. The Appellant objected to all the 14 assessments on iTax system between 10th March 2021 and 25th March 2021.

104. The Respondent then issued its objection decision on 28th May 2021.

105. It is clear to the Tribunal that in the objection decision, the Respondent considered the documents submitted by the Appellant to support its objections. The documents were however found to have been inadequate to enable the Respondent to substantially amend the assessments.

106. In the Statement of Facts, the Appellant addressed each of the assessments but did not give the evidence on the specific documents it submitted to the Respondent that were not indicated not to have been considered in coming up with the final decision.

107. The Tribunal notes that Section 56(1) of the Tax Procedures Act places the burden of proof on the taxpayer. The Section reads as follows:-“In any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect.”

108. Further, Section 30 of the Tax Appeals Tribunal Act provides as follows:-“In any proceeding before the Tribunal the Appellant has the burden of proving-a.where an appeal relates to an assessment, that the assessment is excessive; orb.in any other case, that the tax decision should not have been made or should have been made differently.”

109. The Tribunal has dealt with a similar matter where in Tax Appeal Number 353 of 2018 Rumish Limited vs Commissioner of Domestic Taxes where at paragraph 51, the Tribunal stated:-“Additionally, Section 30 of the Tax Appeals Tribunal Act places the burden of proof on the taxpayer to submit all the necessary documentation to support its case. The same position was held by the court in Metcash Trading Limited-vs Commissioner for the South African Revenue Service and Another Case CCT 3/2000, where it was held that:‘But the burden of proving the Commissioner wrong then rests on the vendor under section 37. Because VAT is inherently a system of self assessment based on a vendor's own records, it is obvious that the incidence of this onus can have a decisive effect on the outcome of an objection or appeal. Unlike income tax, where assessments can elicit genuine differences of opinion about accounting practice, legal interpretations or the like, in the case of a VAT assessment there must invariably have been an adverse credibility finding by the Commissioner; and by like token such a finding would usually have entailed a rejection of the truth of the vendor's records, returns and averments relating thereto. Consequently, the discharge of the onus is a most formidable hurdle facing a VAT vendor who is aggrieved by an assessment: unless the Commissioner's precipitating credibility finding can be shown to be wrong, the consequential assessment must stand’ "

110. The Tribunal also relied on the case of Erricsson Kenya limited vs. Attorney General & 3 Others, Justice Majanja in emphasizing the obligation to produce records said that;“The Court is not concerned with whether he petitioner is entitled to the amount but whether the process afforded was one that complied with the dictates of Article 47 of the Constitution. In considering the circumstances, it is important to recall that tie fact that a taxpayer has lodged a refund claim in accordance with the VAT Act and regulations does not discharge the respondents from the responsibility of examining the claim and confirming that it meets the full requirement of the law. The Commissioner when processing the claim, 1is not merely a conveyer belt performing a perfunctory exercise. He is required to examine and verify the claim and where irregularities, fraud and other deficiencies are discovered, draw the petitioner’s attention to them. The Commissioner is also entitled to call for further information if necessary, to satisfy himself that the claim meets the legal threshold of payment. Ultimately, the Commissioner is entitled to reject a VAT refund claim by giving written reasons which would entitle the taxpayer to appeal or challenge the decision”.

111. In the case of Boleyn International Limited versus Commissioner of Investigations & Enforcement (Tax Appeals Tribunal No 55 of 2019), where, the Appellant failed to provide documents, the Tribunal held that there was no conceivable way the Respondent would have considered the objection as the same did not place itself within the parameters of Section 51(3) of the Tax Procedures Act.

112. Based on the aforementioned provisions of the law and the case laws, the Tribunal finds that the Respondent’s decision to confirm the Appellant’s income tax and VAT assessments was proper in law.

113. Consequently, the Tribunal finds that the Respondent did not err in fact and in law in confirming income tax and VAT assessments of the Appellant.

FINAL DECISION 114. The upshot of the foregoing is that the Appeal is without merit and the Tribunal accordingly proceeds to make the following Orders: -a.The Appeal be and is hereby dismissed.b.The objection decision dated 28th May 2021 be and is hereby upheld.c.Each party to bear its own costs.

115. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF MARCH 2023………………………ERIC N. WAFULACHAIRMAN………………………CYNTHIA B. MAYAKAMEMBER………………………GRACE MUKUHAMEMBER………………………JEPHTHAH NJAGIMEMBER………………………ABRAHAM K. KIPROTICHMEMBER