Introduction & Background
1. This is an appeal from the Judgment of the Tax Appeals Tribunal (TAT) delivered on 26th January 2024 in the TAT Case No. 1258 of 2022 where the Tribunal allowed the Respondent’s appeal and set aside the Appellant’s Objection Decision dated 23rd September 2022.
2. The background of the matter is that the Respondent in its Value Added Tax (VAT) returns for the months of January 2021 and February 2021 failed to claim input VAT incurred in its purchases for the respective months. The total input VAT not claimed for the periods in question amounted to Kshs. 29,183,396.40.
3. The Respondent, having realized the omissions, applied to the Appellant on 16 September 2021, requesting that they be allowed to amend their returns for the month of May 2021 to among others, enable them to claim input VAT incurred in the months of January and February 2021.
4. In response to the request for amendment, the Appellant, vide its letter dated 18th July 2022 rejected the amendment on the basis that the inputs sought to be claimed were imported/purchased more than six months from the date of the amendment contrary to Section 17(2) of the VAT Act 2013.
5. On 12th August 2022, the Respondent lodged an Objection against the Appellant’s said decision. The Appellant, in response to the Respondent’s said Objection, rendered its Objection Decision on 23rd September 2022, disallowing the Objection on the same grounds as its decision contained in its letter of 18th July 2022.
6. Dissatisfied by the Appellant’s Objection Decision of 23rd September 2022, the Respondent herein filed an appeal to the Tax Appeals Tribunal.
7. On 26th January 2024, the Honourable Tribunal issued a judgment in favour of the Respondent, thereby setting aside the Appellant’s Objection Decision of 23rd September 2022.
The Appeal
8. Aggrieved by the decision by the TAT, the Appellant lodged the instant Appeal vide its Memorandum of Appeal dated 26th February 2024, raising the following four (4) grounds of appeal; -
i. The Tax Appeals Tribunal erred in law and fact in finding that the entries relating to January and February in the May return of 2021 were within the six (6) months allowed to claim under Section 17 (2) of the Value Added Tax Act.
ii. The learned Tribunal erred in law and fact in failing to consider the evidence tendered by the Appellant showing that the purchases made in December 2020, January 2021, and February 2021 have been claimed in September 2021 which is more than six (6) months from the date of supply hence time-barred.
iii. The Tax Appeals Tribunal erred in law and fact by misconstruing the provisions of Section 31 (4) of the Tax Procedures Act hence arriving at an erroneous decision.
iv. The Tax Appeals Tribunal erred in law and fact in failing to appreciate the grounds on which the Appellant rejected the Respondent's application to amend the returns.
9. The appeal was canvased by way of written submissions. The Appellant filed two sets of submissions, one dated 24th September 2024 and a Supplementary Submissions dated 15th October 2024. The Respondent’s submissions are dated 19th September 2024.
Appellant’s Submissions
10. In its submissions, the Appellant argued the four grounds of appeal under two headings, that is; -
a. Whether the Tribunal erred in holding that the Appellant was wrong in rejecting input VAT claimed by the Respondent outside the 6 months statutory period prescribed by section 17 (2) of the VAT Act.
b. Whether the Tribunal erred in holding that the Appellant was wrong in rejecting the Respondent’s application to amend its returns in line with Section 31 of the Tax Procedures Act.
11. On the question of whether the Appellant was wrong in rejecting input VAT claimed by the Respondent, the Appellant submitted that pursuant to section 17 (2) of the VAT Act 2013, the Respondent could only claim input VAT in respect of purchases incurred within 6 months from the date of supply or importation.
12. It was, therefore, the Appellant’s position that the TAT erred in allowing the Respondent’s appeal thereat since doing so amounted to the Respondent being allowed to claim input VAT in respect of purchases which were beyond the six (6) months statutory period prescribed under section 17(2) of the VAT Act, 2013.
13. According to the Appellant, the purchases in question were made by the Respondent in the months of December 2020, January 2021, and February 2021, and therefore, the input VAT in respect of such purchases was by law restricted to be made within six (6) months from the respective dates of purchase.
14. Regarding the Tribunal’s holding that the Appellant was wrong in rejecting the Respondent’s application for amendment of its VAT returns, the Appellant submitted that amendment of a return is not as of right. That pursuant to section 31(4) of the VAT Act, an application for amendment may be rejected by the Appellant, provided the reasons thereof are communicated to the taxpayer within the period specified in the statute.
15. The Appellant therefore maintained that to the extent that the amendments sought by the Respondent were meant to permit a claim of input VAT beyond the six months statutorily prescribed under section 17 (2) of the VAT Act, the Appellant was in law entitled to reject to the same.
16. Relying on among others, the decision in the case of Highlands Mineral Water Limited V Commissioner of Domestic Taxes (2021) eKLR, the Appellant maintained that under section 17(2) of the VAT Act, input VAT can only be claimed within 6 months from the date of supply or importation and that the 6-month period for claiming input begins to run when the supply or importation occurred and not necessarily when the return is filed.
17. The Appellant therefore prayed for orders that; -
a. That this Appeal be allowed.
b. That the Judgment of the Tax Appeals Tribunal dated 26" January 2024 issued against the Appellant be hereby set aside.
c. That the Appellant's Objection Decision dated 23 September 2023 be upheld.
d. That costs be awarded to the Appellant herein.
Respondent’s Submissions
18. On its part, the Respondent supported the finding by the Tribunal and urged this Court to maintain the same.
19. The Appellant submitted that it inadvertently omitted to claim input VAT totaling to Kshs. 29,183,396.40 in respect of supplies purchased/imported by them in the months of January 2021 and February 2021 in their VAT returns for the months of January 2021 and February 2021. That the Respondent consequently made an application pursuant to section 31(2) of the Tax Procedures Act, 2015 for the Appellant to permit the amendment of its May 2021 VAT return to enable the Respondent to claim the input VAT.
20. While admitting that pursuant to Section 17(2) of the VAT input VAT is to be claimed within 6 months from the date of supply, the Respondent maintained that the input VAT in respect of the purchases in question were made in May 2021 which is within the statutorily prescribed timeline of 6 months.
21. The Respondent submitted that the claim for input tax was filed on 19th June 2021, being the date on which the May 2021 return was filed, which was followed up vide its letter dated 4th August 2021, which reiterated the claim for input VAT as made in the May 2021 VAT returns.
22. The Respondent therefore submitted that the Appellant’s rejection of the input VAT for having been made beyond the 6 months allowed in law is not only illegal but is also unreasonable.
23. It was further the Respondent’s position that appeals from the Tribunal to this Court are to be purely on issues of law and that the question of whether the input VAT in respect of the supplies in question was claimed within the six (6) months period is one of fact which does not fall within the ambit of Section 56(2) of the Tax Procedure Act, 2015.
24. As an alternative argument, the Respondent submitted that by applying the doctrine of the implied repeal of an old statute by a new statute, the VAT Act which came into effect on 2nd September 2013 was superseded by the Tax Procedures Act (which came onto effect on 19th January 2016) which allowed for a amendment of returns (which includes VAT returns to claim input VAT) within 5 years, which was beyond the beyond the six (6) months period provided under the VAT Act.
25. According to the Respondent, the six-month period within which to claim input VAT was only introduced to the Tax Procedures Act vide Section 38 of the Finance Act 2022, which brought in Section 31(4) of the Tax Procedures Act.
26. It was therefore submitted by the Respondent that the VAT Act having come into effect on 2nd September 2013 and which provided for a claim of input VAT within six months under section 17(2) of the VAT Act, was superseded by the Tax Procedures Act came into effect on 19th January 2016 and which was silent on claim for input tax within six (6) months under the doctrine of doctrine of implied repeal of an old statute by enactment of a new statute.
27. The Respondent therefore asserted that by rejecting its application for amendment of May VAT returns, the Appellant herein introduced additional words in the statute and gave it a different and broader interpretation not supported by the words of the statute contrary to the strict rules of construction of tax laws as espoused in several decisions among them Cape Brandy Syndicate v Inland Revenue Commissioners [1920] 1 KB 64 and T.M. Bell v Commissioner of Income Tax [1960] EALR 224.
28. The Respondent asserted that given the lack of clarity and ambiguities in the interpretation of sections 17(2) of the VAT Act and Section 31 of the Tax Procedures Act as it stood prior to the year 2022, the Tribunal was right in adopting a construction or interpretation which does not impose a burden, tax or duty on the subject.
29. It was, therefore, the Respondent’s submission that where the inclination of the legislature is not clear, or where there are two or more possible meanings, the inclination of the court should be against a construction or interpretation that imposes a burden, tax or duty on the subject.
30. The Respondent therefore urged this court to find the instant appeal not merited and dismiss the same with costs in its favour.
Analysis and determination
31. This is an appeal from the Tax Appeals Tribunal to this Court pursuant to Section 53 of the Tax Procedures Act, Cap. 469A of the Laws of Kenya (TPA) which provides as follows; -
“53. A party to proceedings before the Tribunal who is dissatisfied with the decision of the Tribunal in relation to an appealable decision may, within thirty days of being notified of the decision or within such further period as the High Court may allow, appeal the decision to the High Court in accordance with the provisions of the Tax Appeals Tribunal Act (Cap. 469A)”
32. Further, Section 56(2) of the TPA provides that appeals from the decisions of the Tribunal to this Court shall only be limited to questions of law only. The Section provides that; -
“(2) An appeal to the High Court or to the Court of Appeal shall be on a question of law only.”[emphasis added].
33. An Appeal to this court from the decision of the Tribunal being one limited to the points of law, this court is therefore not expected to entertain an invitation to interfere with the factual findings of the Tribunal, except where it is shown that the Tribunal considered matters it should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse (See: Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR ).
34. First, I note that the Respondent in its submissions took what appeared to be a preliminary objection to this appeal when it argued that the question of whether the subject input VAT was claimed within 6 months was a question of fact and not one of law, to form the basis of an appeal to this Court under Section 56(2) of the Tax Procedures Act.
35. It is important to note that an appeal on points of law is akin to a second appeal to the Court of Appeal. The duty of a second Appeal was set out in the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] where the Court stated that: -
“This is a second appeal. I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below-considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga (2016) eKLR).”
36. As to what constitutes a point of law, the Court in Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR, stated as follows: -
“Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla Vs Swaleh Salim Swaleh Imu & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13.01.2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle vs Oxney (1947) 1 All ER 126. See also Khatib Abdalla Mwashetani Vs Gedion Mwangangi Wambua & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23.01.2014 following AG vs David Marakaru (1960) EA 484.”
37. From the above, it is evident that where an appeal is limited to matters of law only, the jurisdiction of an appellate Court is to draw its own conclusions on the trial court’s findings on points of law, and can only interfere where the conclusions of law arrived at, cannot reasonably be drawn from the factual findings by the lower Court.
38. In Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR the Court of Appeal clarified that where a right of appeal is confined to questions of law only, an appellate court is duty bound to accept the findings of fact by the lower court. Should not interfere with the findings of the trial on the factual issues, unless it is apparent that based on the evidence on record, no reasonable tribunal or court could have reached the same conclusion, in which case, the holding or decision would be bad in law and therefore qualify to be reviewed on a second appeal. The court stated as follows; -
“This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina versus Mugiria [1983] KLR 78, Kenya Breweries Ltd versus Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case of Martin versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”
39. In this appeal, it is clear from the parties’ submissions that the main issue for determination turns on the interpretation of Section 17(2) of the VAT Act as well as Section 31(4) of the Tax Procedures Act. This, in my view, is obviously a question of law, to which this court in its appellate capacity has jurisdiction in terms of Section 56 (2) of the Tax Procedures Act.
40. Section 17 of the VAT Act, 2013 which was the applicable legislation at the time provides as follows; -
“17. Credit for input tax against output tax
(1) Subject to the provisions of this section and the regulations, input tax on a taxable supply to, or importation made by, a registered person may, at the end of the tax period in which the supply or importation occurred, be deducted by the registered person, subject to the exceptions provided under this section, from the tax payable by the person on supplies by him in that tax period, but only to the extent that the supply or importation was acquired to make taxable supplies.
(2) If, at the time when a deduction for input tax would otherwise be allowable under subsection (1), the person does not hold the documentation referred to in subsection (3), the deduction for input tax shall not be allowed until the first tax period in which the person holds such documentation.
Provided that the input tax shall be allowable for a deduction within six months after the end of the tax period in which the supply or importation occurred.” [emphasis added].
41. From the record of appeal and the parties’ submissions, it is common ground that the Respondent in their VAT return for the months of January 2021 and February 2022 omitted to claim input VAT in respect of the purchases they made for the respective months. What however is in dispute is whether the input VAT was claimed within the 6 months provided under Section 17(2) of the VAT Act, 2013.
42. While the Appellant argued that the input VAT in respect of the purchases in question was not claimed within the statutorily prescribed 6-month period, the Respondent on their part asserted that the input VAT claim for the purchases in question was made within the timelines. The duty of this court will therefore to peruse through the record, including the decision by the TAT on the issue, and to make its own findings.
43. I note from the record of appeal that the Respondent vide its letter of 4th August 2021 addressed to the Respondent sought to have its May 2021 VAT return to enable it to claim input VAT in respect of its Purchases for December 2020, January 2021 and February 2021. According to the Respondent, the failure to claim input VAT for the said purchases in the January 2021 and February 2021 VAT returns was inadvertent. In the letter, the Respondent stated as follows; -
“We refer to the above subject matter regarding our amended VAT Return for the month of May 2021.
The amendment is as a result of mistakenly omitted Input VAT in our already submitted Self-Assessment monthly returns for the period December 2020 to February 2021 and the same was occasioned by our ongoing migration to a new accounting system.
We have carried out a thorough reconciliation of our VAT Returns in order to scrutinize any instances of None/undeclaration of our Output VAT and also eliminate any duplication/double claiming of Input VAT.
We enclose herein a schedule of the omitted Input VAT for the aforementioned period together with the relevant supporting documents for your verification and consideration.
We shall be grateful if you could accept our request and consider approving the amended VAT return in order to reflect our correct tax position. In case you have any queries or require clarification or a meeting to discuss this in detail, please do not hesitate to contact us.”
44. It is also apparent from the record of appeal that the Appellant, vide its letter dated 18th July 2022, in response to the Respondent’s aforesaid application for amendment, disallowed the request on the basis that according to the Appellant, “the inputs sought to be claimed were imported/purchased more than six months from the date of the amendment contrary to Section 17(2) of the VAT Act, 2013.”
45. Dissatisfied with the Appellant’s position in the matter, the Respondent vide its letter of 12th August 2022 filed an Objection with the Commissioner (Respondent) under Section 51 of the Tax Procedures Act. The Respondent, in the Objection, maintained that the input VAT claimed in the amended May 2021 VAT return met the criteria under Section 17 of the VAT Act.
46. In response to the Respondent’s Objection, the Commissioner issued his Objection Decision on 23rd September 2022, maintaining its earlier decision that the input VAT sought to be claimed by the Respondent was in respect of purchases that were made way beyond the six months statutorily prescribed period.
47. Having laid the facts as above, and taking into account that both parties are agreeable that pursuant to Section 17(2) of the VAT Act, input VAT can only be claimed within 6 months from the date of purchase/importation, what falls for the determination by this court is whether, on the facts of the case, the 6 months statutory timeline was met by the Respondent.
48. Section 17(2) of the VAT Act is clear that input VAT can only be claimed “within 6 months after the end of the tax period in which the supply or importation occurred.” In this case, the purchases in question were made by the Respondent in the months of December 2020, January 2021, and February 2021. It therefore follows that input VAT for the months in question would be eligible to be claimed by the months of June 2021, July 2021, and August 2021 respectively.
49. I have carefully perused the entire record of appeal and I have not seen any evidence by the Respondent that the input VAT for the months in question were claimed within the 6 months provided in law. What is available on record is the Respondent’s letter dated 4th August 2021 in which they applied to amend the May 2021 VAT return to enable them to claim the input VAT relating to the December 2020, January 2021, and February 2021 purchases.
50. It is critical to note that as of 4th August 2021 when the Respondent applied to the Appellant for the authorization to amend the May 2021 VAT return, the 6 months period prescribed under Section 17(2) of the VAT Act for claiming input VAT for purchases made in December 2020 and January 2021 had lapsed. The input VAT in respect of these purchases were therefore time barred.
51. In Highlands Mineral Water Limited v Commissioner of Domestic Taxes [2021] eKLR, the Court was categorical that the 6-month period of claiming input VAT begins to run when the supply or importation occurred and not necessarily when the return is filed. I would also add, neither does it depend on when the self-assessment return is amended. The Court stated that; -
“35. It is worth noting that section 17 aforesaid does not deal with or mention the filing or otherwise of VAT Returns. Indeed, in Rabai Operation and Maintenance Limited v Commissioner of Domestic Taxes (Supra), the court construed similar provisions of section 11 of the VAT Act (Repealed) and held that, “The requirement for VAT monthly returns was not a condition for such deduction under section 11.” The straightforward interpretation of section 17(2) is that the 6-month period of claiming input VAT begins to run when the supply or importation occurred and not necessarily when the return is filed. Meaning, if a taxpayer files a VAT return say, 7 months after when the supply or importation occurred, then the input tax claimed on that return cannot be allowed. [Emphasis added]
52. Regarding purchases made in February 2021, the Respondent had up to August 2021 to claim input VAT. It, therefore, follows that the Respondent, if it had in its possession the documents specified under Section 17(3) of the VAT Act, could in their August 2021 VAT return, still lawfully claim input VAT in respect thereof, without the need for any authorization from the Appellant. There is nothing on record to show that the Respondent claimed the input VAT in respect of the February 2021 purchases by the August 2021 deadline.
53. From the decision of the Tribunal, I note that the Tribunal based their reasoning largely on Section 31 (2) of the Tax Procedures Act which relates to amendments of returns. According to the Tribunal, the Respondent having made its application for amendment of its May 2021 VAT return on 4th August 2021, was well within the 5 years provided under Section 31 (4) (b) (i) of the Tax Procedures Act, and therefore the Commissioner erred in allowing the amendment sought by the Respondent.
54. For a proper perspective, it is necessary that I reproduce the relevant provisions of Section 31 of the Tax Procedures Act which provides as follows regarding the amendment of Assessments; -
“31. Amendment of assessments
(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 judgment, to the original assessment of a taxpayer for a reporting period to ensure that—
(a) in the case of a deficit carried forward under the Income Tax Act (Cap. 470), the taxpayer is assessed in respect of the correct amount of the deficit carried forward for the reporting period;
(b) in the case of an excess amount of input tax under the Value Added Tax Act (Cap. 476), the taxpayer is assessed in respect of the correct amount of the excess input tax carried forward for the reporting period; or
(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.
(2) A taxpayer who has made a 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.
(3) Where an amended self-assessment return has been submitted under subsection (2), the Commissioner may accept or reject the amended self-assessment return and where he rejects, he shall furnish the taxpayer with the reasons for such rejection within thirty days of receiving the application.
(4) The Commissioner may amend an assessment—
(a) in the case of gross or wilful neglect, evasion, or fraud by, or on behalf of, the taxpayer, at any time; or
(b) in any other case, within five years of—
(i) for a self-assessment, the date that the self-assessment taxpayer submitted the self-assessment return to which the self-assessment relates; or
(ii) for any other assessment, the date the Commissioner notified the taxpayer of the assessment: Provided that in the case of value added tax, the input tax shall be allowable for a deduction within six months after the end of the tax period in which the supply or importation occurred
55. From the above, it is clear that a tax return may be amended by either the Commissioner under Section 31 (1), or by the taxpayer (upon approval by the Commissioner), under Section 31 (2) of the Act. Where an amendment is to be made by a taxpayer (such as the Respondent herein), the period within which such an amendment may be made is prescribed under Section 31(4)(b)(i) as within five (5) years of self-assessment.
56. It is important to note that an amendment of returns under Section 31 of the Tax Procedures Act, may either be in respect of income tax under the Income Tax (Cap. 470) or value added tax under the Value Added Tax (Cap. 476).
57. Where a taxpayer proposes to amend its self-assessment return, then the provisions of the substantive statutes regulating the proposed amendments must first be met and/or complied with.
58. For instance, where a taxpayer proposes to amend its income tax return to claim expenses which were erroneously omitted, then the Commissioner, before allowing such an application for amendment, must first be satisfied that the expenses proposed to be included (claimed) are those that are allowable under Section 15 of the Income Tax Act.
59. The same principle is applicable where an application for amendment is made relating to matters governed by the Value Added Tax Act, in which case the specific VAT laws governing the proposed amendment must first be complied with and/or met.
60. In the instant case, the Respondent made an application under Section 31(4) (b) (i) of the Tax Procedures Act to amend its return, to enable them to claim input VAT in respect of purchases for the months of December 2020, January 2021, and February 2021.
61. While Section 31(4) (b) (i) of the Tax Procedures Act permits that amendments to self-assessments may be done within 5 years of a self-assessment, the proposed amendment, if it relates to or results in a claim of input tax, then such an amendment can only be permitted if it is made within the 6 months prescribed under Section 17(2) of the VAT Act.
62. The argument by the Respondent that there was uncertainty or ambiguity in law as to whether the input VAT could be claimed within the 5-year period prescribed under Section 31(4)(b)(i) of the Tax Procedures Act; or within the 6 months period prescribed under Section 17(2) of the VAT Act is in my view not meritorious. The same applies to the Respondent’s argument that the Tax Procedures Act, being the latter legislation, impliedly repealed the provision of the Value Added Tax (which was enacted earlier) in relation to the period within which input VAT may be claimed.
63. While it is correct that the proviso under Section 31 of the Tax Procedures Act (clarifying that where amendments relate to a claim of input VAT, then such claim shall only be allowable within six months after the end of the tax period in which the supply or importation occurred) was only introduced vide the Finance Act 2022, it is the view of this court that even in the absence of such clarification, there was no lacuna or uncertainty as to the period within which input VAT was to be claimed. Section 17 (2) of the VAT Act which is the substantive law, clearly prescribed the period to be within input VAT was to be claimed to be 6 months after the end of the tax period in which the supply or importation took place.
64. In any event, it is a settled principle in law that a general law yields to special law (lex specialis derogate generali) that is, when a general law and a special law dealing with some aspect then, the rule adopted is that the general law gives way to the special law. See the case of M J v N K &. another (2017) eKLR, where the Court stated that; -
“It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant, i.e., general law yields to special law.”
65. The general law on amendments of tax returns (be it Income tax returns, VAT returns, or Excise Duty Returns) is Section 31 of the Tax Procedures Act. However, where a taxpayer makes an application under Section 31(2) to amend his/her VAT self-assessment return (as was the case herein), then the proposed amendment must not violate the specific provisions of the Value Added Tax Act which governs the amendment proposed. In case of any conflict, then the provisions of the Value Added Tax, being the specific law, is to hold sway.
66. The same reasoning applies in cases of income tax and/or excise duty self-assessment returns, where any amendments to be done pursuant to an application made by a taxpayer under Section 31 of the Tax Procedures Act are not expected to contradict the provisions of Income Tax Act and the Excise Dury Act respectively.
67. In this case, while Section 31(4) (b)(i) of the Tax Procedures Act (being the general law) provides that a taxpayer may within five (5) years of submitting his/her self-assessment tax return apply to the Commissioner to amend the same, Section 17(2) of the Value Added Tax Act (being the legislation specific to claim of input VAT) provides that no input VAT is to be claimed more than six (6) months of the supply or importation to which the input VAT relates.
68. For the above reasons, I find the appeal merited and hereby allow the same with costs to the Appellant.
69. Consequently, the Judgment of the Tribunal is hereby set aside and the Commissioner’s (Appellant’s) Objection Decision dated 23rd September 2022 is hereby upheld.
70. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 22ND JANUARY 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
Ms. Amadi…………for the Appellant.
Lesikito………… for the Respondent.