JUDICIARY OF TANZANIA: GUEST HOUSE, BAR COMPANY LOSES COURT BATTLE OVER 300M/- TAX

By FAUSTINE KAPAMA-Judiciary

A Local Company dealing in guest house, bar and restaurant business, Q-Bar Limited, is to pay over 300m/- as unpaid tax to the Tanzania Revenue Authority (TRA) for sales generated in the business for 2009, 2010 and 2011 years.

This followed the decision of the Court of Appeal to dismiss with costs the appeal lodged by the Company, the appellant, to oppose findings of the Tax Revenue Appeals Tribunal on the matter, which had ruled in favour of the Commissioner General of TRA, the respondent.

“We hold that the memorandum of appeal raises no questions of law contrary to section 25 (2) of Tax Revenue Appeals Act and for the above stated reasons, we find the appeal non meritorious. Accordingly, we dismiss it with costs,” Justices Mwanaisha Kwariko, Rehema Kerefu and Paul Kihwelo ruled.

In determining the appeal in question, the Justices had to consider whether the appeal complied with the provisions of section 25 (2) of the Tax Revenue Appeals Act (TRAA), which requires appeals to the Court of Appeal should be on matters involving questions of law only.

Going through the record, it was their considered view that the appellant's complaints in all four grounds of appeal raise questions of facts which were sufficiently dealt with and settled by the Tax Revenue Appeals Board and the Tribunal, thus they ought to end there.

The Justices found the submissions by both counsel for the parties to be misconceived because in his written submissions, the appellant's counsel, instead of clarifying issues alleged in the grounds of appeal, he introduced new issues on points of law.

“We find this to be irregular as, in a written submission, a party to the appeal is expected to only explain and clarify the grounds of appeal before the Court and not to introduce new matters based on new views,” they said.

The justices emphasized the principle that litigants should not be allowed to change their goal posts when new views are discovered in the course of litigation, unless expressly permitted by the law.

“We have already shown the position of the law. It follows therefore that this Court has no jurisdiction to determine the grounds of appeal which have only raised issues of facts. Since the issue that we have raised disposes of the appeal, we find no need to consider the grounds of appeal,” they said.

The appellant is a dealer in various businesses namely, guest house, bar and restaurant. In the course of execution of his duties, the respondent was told by the Commissioner of Domestic Revenue that the appellant was not using Electronic Fiscal Device (EFD) machine in his business.

That machine is used to record sales and taxes. Acting on such information, the respondent was prompted to conduct tax audit on the appellant's business for the years 2009, 2010 and 2011.

The said audit revealed that the appellant was using both Electronic Cash Register (ECR) machine and EFD machine. It was discovered further that the ECR machine was used to take the bills and issue receipts on different transactions conducted by the appellant.

Since the ECR machine was not recognized by the tax authorities in the country, the respondent took the appellant's ECR machine and sent it to the supplier, the Business Machine Tanzania Limited (BMTL) for the purpose of retrieving data where both parties were involved.

The technical team of the BMTL managed to retrieve information which showed that there was about a total of 334,000,000/-of undeclared sales from the years 2009 to 2011. It was also discovered that the receipts produced by the ECR machine had the name of the appellant.

Consequently, on December 12, 2012 the appellant was served with a notice of tax assessment (VAT certificate) amounting to 160, 427,856/- and corporate tax of 66,828,495/58, 112,490,554/46 and 76,447,996/- for the years 2009 to 2011.

Having been aggrieved by the respondent's assessments, on December 18, 2012, the appellant lodged notices of objection against the assessments which was accompanied by an application for waiver.

The objection was admitted and thereafter, the parties exchanged several correspondences intended to settle the matter amicably but in vain.

What followed was for the respondent to issue to the appellant notices of non[1]agreement the amended assessments of 61,257,761/40; 51, 309,125/70; 45,346,736/60 and 31,385,120/10. It was at that point in time when the appellant decided to knock the doors of the Board.