Author: FAUSTINE KAPAMA
AfricaPress-Tanzania: VODACOM Tanzania Public Limited Company has lost a move to oppose payment of over 3bn/-as tax to the Tanzania Revenue Authority (TRA) in a transaction relating to the purchase of software for operation of her requirements.
This followed the decision of the Court of Appeal delivered in Dar es Salaam last week to reject the appeal lodged by the Telecommunications Network and Wireless Services Provider Company, seeking to oppose the findings of the Tax Revenue Appeals (Tribunal).
Justices Stella Mugasha, Ferdinand Wambali and Rehema Kerefu ruled against Vodacom Company, formerly Vodacom Tanzania Limited, the appellant, after holding that the appeal was time barred.
During the hearing of the appeal, they noted on record two certificates of delay issued by the Registrar of the Tribunal to exclude the time under which the appellant was waiting for the preparation of the certified copies of the proceedings, judgment and the decree of the impugned Tribunal’s decision.
On December 6, 2018 the Registrar issued a certificate of delay excluding a period from November 15-28, 2017 to have been utilised for preparations and the delivery of the certified copies of the judgment, decree and proceedings of the impugned decision of the Tribunal.
After expiry of 55 days, that is, on January 22, 2019, the appellant’s counsel vide a letter requested to be supplied with certified copies of the judgment decree and proceedings on ground that the initially supplied copies were not signed by the Vice-Chairman and Members of the Board.
However, the justices observed that on the record there was no evidence that the Registrar had acknowledged or made any response to the appellant’s letter.
Instead, on record there was a letter dated March 12, 2019 whereby the appellant’s counsel sought a second certificate of delay.
Such a certificate, according to the justices, was excluding the period between November 15, 2007 to March 11, 2019 to have been utilised for the preparations and delivery of the proceedings, the judgment and decree of the impugned decision of the Tribunal.
“Since the first certificate was not withdrawn, and considering that the two certificates of delay cannot co-exist in one appeal, the appellant cannot rely on the second certificate which is in our view inconsequential,” they said in their judgement.
According to them, the first certificate of delay which was a valid one and in terms of the proviso to Rule 90(1) of the Tanzania Court of Appeal Rules, 2009, the appeal ought to have been filed not later than January 27, 2019.
However, the justices noted, the appeal was filed 162 days after the expiry of the excluded period and beyond the prescribed period. “In view of what we have endeavoured to demonstrate there is no gainsaying that the appeal is time barred and we accordingly strike it out,” they ruled.
The appellant registered in Tanzania entered into an agreement with the software supplier, Siemens Telecommunications (PTY) Ltd, for the purchase of software to enable the appellant operate the software in accordance with his requirements.
It is stated that the TRA, the respondent, conducted tax audit in respect of the appellant’s business affairs for the period covering the year 2001 to 2004. On November 10, 2006 the respondent served the appellant with preliminary audit findings.
In the wake of the appellant being discontented with the tax audit, a meeting was convened between the parties following which, on April 24, 2007, the respondent prepared and issued the revised preliminary audit findings.
As the appellant was still not happy with the tax audit results, two more meetings were convened between the parties, but yielded no positive results as the appellant was not yet satisfied with the revised preliminary audit findings.
Ultimately, on August 21, 2008, the respondent issued to the appellant demand notices for withholding tax and penalties with respect to the services and royalty amounting to 1,028,644,778/87 and 1,917,171,792/- respectively.
The appellant was dissatisfied with the assessment filed an appeal to the Tax Revenue Appeals Board. The Board dismissed the appeal in its decision on August 21, 2015. Aggrieved with that decision, the appellant unsuccessfully appealed to the Tribunal.
