Sonje v Commissioner of Domestic Taxes [2024] KETAT 1095 (KLR)

Sonje v Commissioner of Domestic Taxes (Tax Appeal E247 of 2024) [2024] KETAT 1095 (KLR) (5 July 2024) (Ruling)

Neutral citation: [2024] KETAT 1095 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E247 of 2024

E.N Wafula, Chair, M Makau, EN Njeru, E Ng'ang'a & AK Kiprotich, Members

July 5, 2024

Based on the aforesaid analysis the Tribunal finds that the application is merited and accordingly proceeds to make the following Orders: -

Between

Anorld Deche Sonje

Appellant

and

Commissioner of Domestic Taxes

Respondent

Ruling

1. The Appellant moved the Tribunal vide a Notice of Motion application dated 26th February 2024 and filed under a Certificate of urgency on 28th February 2024 that is supported by an Affidavit sworn on 28th February 2024 by Anorld Deche Sonje, the Appellant, seeking for the following Orders: -a.Spent.b.That the Honourable Tribunal be pleased to extend the time allowed for the Applicant to file a Notice of Appeal, Memorandum of Appeal, Statement of Facts and other supporting documents.c.That the Honourable Tribunal be pleased to issue an order restraining the Respondent and/or its agents from taking any enforcement mechanism with respect to confirmation of assessment notices dated 23rd December 2022, pending the hearing and determination of this application and intended Appeal.d.That the Notice of Appeal dated 26th February 2024 filed herewith to be deemed as properly filed and served.e.That the costs of this application be provided for.

2. The application is premised on the grounds, that: -i.The Respondent assessed the Appellant for the years 2016, 2018 and 2019. ii.The Appellant objected to the said assessments on 6th September 2021 to which the Respondent issued a Notice of Invalidation to the objection dated 16th December 2022 for Kshs. 11,373,881. 00. iii.The Appellant failed to lodge an Appeal to the Honourable Tribunal due to sickness.iv.The Appellant was diagnosed with radiculopathy, is unwell to date, the medical condition has made the Appellant unable to attend to most of his day to day business including his tax matters.v.The Appellant is apprehensive that the Respondent is likely to take enforcement measures by way of issuing agency notices against the Appellant’s bankers.vi.The Appellant/Applicant has an arguable Appeal for the reason that the Respondent’s Objection was issued outside the statutory 60 days period pursuant to Section 51 (11) of the Tax Procedures Act.

3. The Respondent upon being served with the instant application did not file any response to the application, the application is therefore deemed to be unopposed.

Analysis and Findings 4. The parties despite being directed by the Tribunal to file and exchange with each other their respective written submissions, neither party filed any written submissions and the Tribunal shall determine the same based on the grounds on the face of the application.

5. The application seeks for an order for the extension of time for filing of the appeal out of time and for the annexed Notice of Appeal being deemed as properly filed.

6. The Appellant premised his application on the provisions of Section 13 (3) and (4) of the Tax Appeals Act, 2013.

7. Further, the Appellant relied on the provisions of Rule 10 (1), (2) & (3) of the Tax Appeals Tribunal (Procedure) Rules, 2015, which provides as thus:-“(1)Where the documents referred to in rule 3 (2) are not filed within the time specified therein, the Tribunal may, upon for submitting application in writing, extend the time for submitting the documents.(2)An application for extension of time referred to in rule 10(1) shall be-(a)supported by an affidavit stating reasons why the applicant was unable to submit the documents in time.(b)served on the respondent by the applicant within two days of filing with the clerk.“(3)The Tribunal may grant the extension of time if it is satisfied that the applicant was unable to submit the documents in time for the following reasons-(a)absence from Kenya;(b)sickness; or(c)any other reasonable cause.”

8. The Appellant submitted that in December 2022 he was taken seriously ill and was diagonized with radiculopathy and was unable to attend to any business at all.

9. The Appellant’s application is based on the ground as provided under the provisions of Section 13 (4) of the TAT Act and Rule 10 (3) of the Tax Appeals Tribunal (Procedure) Rules.

10. The Tribunal upon perusal of the documents provided in support of the application sighted a medical report in support of the Appellant’s illness and which indicates that the Appellant was unable to discharge the day to day duties.

11. The medical note issued to the Appellant from Vivid Medical Centre indicated that the Appellant was seen on 3rd November 2022, continued with treatment and allowed to resume light duty activities in the month of February 2024.

12. Accordingly, the Tribunal is satisfied with the reason advanced by the Applicant with the reasons being provided for in law and period of delay being accounted for is therefore reasonable to warrant the intervention by the Tribunal.

13. Consequently, the Tribunal finds in favour of the Appellant/Applicant’s application.

Disposition 14. Based on the aforesaid analysis the Tribunal finds that the application is merited and accordingly proceeds to make the following Orders: -a.The Appellant be and is hereby granted leave to lodge an appeal out of time.b.The Appellant’s Notice of Appeal dated 26th February 2024 and filed on 28th February 2024 be and is hereby deemed as properly filed and served.c.The Memorandum of Appeal and Statement of Facts both dated 26th February 2024 and filed on 28th February 2024 together with the tax decision appealed against be and are hereby deemed as properly filed and served.d.The Respondent is at liberty to file and serve its response to the Appeal within thirty (30) days of the date of delivery of this Ruling.e.No orders as to costs.

15. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 5THDAY JULY, 2024ERIC NYONGESA WAFULA - CHAIRMANMUTISO MAKAU - MEMBERELISHAH N. NJERU - MEMBEREUNICE N. NG’ANG’A - MEMBERABRAHAM K. KIPROTICH - MEMBER