1.The Appellant a limited liability company incorporated in Kenya whose principal business activity is offering water, transport, structural, environmental and project management engineering consultancy services.
2.The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act and the Kenya Revenue Authority is an agency of the Government of Kenya for the purposes of receipt, collection, accounting of Government revenue and enforcement of all the relevant tax laws.
3.The dispute herein arose from a contract that was signed by SMEC International PTY in association with KIRI Consult Limited (the Appellant) who were contracted by Kenya Roads Board ( KRB ) to undertake two projects under the Kenya Transport Sector Support Project, namely:i.Provision of Consultancy Services to Undertake Road Inventory and Condition Survey for Central Zone via a contract signed on 1st August 2016.ii.Provision of Consultancy Services to Undertake Road Inventory and Condition Survey for Western Zone via a contract signed on 1st August, 2016.1.Via a letter dated 9th September 2016, the Principal Secretary (PS) National Treasury (NT):a.Wrote to the Commissioner of Domestic Taxes, Kenya Revenue Authority (KRA), confirming that the project was financed by the International Development Association and the services to the Project therefore, qualified for zero rating.b.Advised the PS, State Department for Infrastructure, Ministry of Transport, Infrastructure, Housing and Urban Development to provide KRA with the relevant documents to facilitate any request for zero rating of the services without coming back to the NT as per the Treasury Regulations.c.Informed the Commissioner that each of the three consultants had submitted three invoices which had been paid and went ahead to request for zero rating of the services covered by the nine (9) invoices so far submitted in accordance with Section 68 (4A) of the VAT Act.
5.The Respondent wrote a letter dated 10th July 2017 to SMEC International PTY Limited (SMEC) authorizing it to supply services to KRB free of VAT. The said letter omitted the name of the Appellant and hence the dispute.
6.In response to the letter dated the 10th of July 2017, the Appellant sought clarification from the Respondent as to the reasons why it had been left out of the remission bracket.
7.KRB also wrote to the Respondent dated 13th January 2021, requesting to allow the Appellant a VAT remission because it was carrying out projects in association with SMEC International PTY Limited who had already been favored with VAT remission for the same projects.
8.The Respondent, via a letter dated 16 April 2021, advised the KRB to channel its request through the PS Ministry of Transport Infrastructure and Urban Development & Public Works.
9.This was done and the PS Ministry of Transport Infrastructure and Urban Development & Public Works wrote a letter dated the 28th April 2021 requesting Respondent to include the Appellant in the same remission bracket that had been given to SMEC who was working in association with the Appellant in the same project.
10.This request was declined and the Respondent went ahead and issued an assessment to the Appellant via a letter dated 22nd June 2021 demanding for Value Added tax amounting to Kshs. 30,818,305.29 in relation to the supplies made to KRB.
11.Being dissatisfied with the assessment, the Appellant objected to the assessment by a letter dated 09 July 2021 and submitted supporting documents on the 23rd of July 2021.
12.On the 7th of October 2021, the Respondent wrote to the PS Ministry of Transport Infrastructure and Urban Development & Public Works requesting it for further documentations to enable it respond to the Appellant’s objection. The documents requested included:i.The Application to the NT for the Exemption of VAT on services;ii.A copy of the NT approval letter confirming the tax status of the services to the project;iii.Copy of Contract for the Official Aid Funded Project; andiv.The initial letter to the Respondent providing recommendation for processing exemption or zero rating of services of the project.1.On 11th November 2021, the PS Ministry of Transport Infrastructure and Urban Development & Public Works replied to the Respondent’s letter and provided all the requested documents.2.Upon perusal of these documents the Respondent issued its objection decision on the 15th of December 2021 confirming the additional assessments.3.The Appellant being dissatisfied with the objection decision commenced the Appeal process to the Tribunal vide its Notice of Appeal dated the 7th January 2022 and filed on 14th January, 2022.
16.The grounds of Appeal as captured in the Memorandum of Appeal dated and filed on 14th January, 2022 are as follows:a.That the Respondent erred in law and in fact by assuming that the Appellant was a mere sub consultant against the clear wording of the contract that clearly stated that the contract was between the Kenya Roads Board and SMEC International PTY Ltd of Australia in association with KIRI Consult Limited (Kenya) as a sub consultant.b.That the Respondent erred in law and in fact by arguing that the supplies were not listed in the 1st or 2nd Schedule of the VAT Act when they were clearly listed in Paragraph 20 of Part II of the First Schedule to the VAT Act.c.That the Respondent erred in law and in fact by arguing that the application for exemption certificate was made for SMEC alone and that KIRI did not apply for the tax exemption, yet the application was made for SMEC in association with KIRI for the exemption of the project.d.That the Respondent erred in law and in fact in assuming that for the exemption to apply one must be in possession of a tax exemption certificate which is a condition not anchored in law.e.That the Respondent erred in law and in fact by concluding that the exemption provided for under part II of the first schedule to the Act is granted to persons instead of the services. The exemption is on the service supplied to the project and not the individual participants.
17.The Appellant’s case is premised on the Statement of Facts dated and filed on 14th January, 2022 and the written submissions dated and filed on 17th January, 2022. It is further buttressed by the witness statements of Judah Muriithi Kibeteru and Philip Wachira Ndirangu both filed on the 27th May, 2022 and admitted in evidence on oath on the 28th September, 2022.
THE APPELANT’S CASE
18.The Appellant identified 3 issues for determination and argued its case alongside those issues as follows:a.Whether the supplied services are listed in the First or Second Schedule of the VAT Act;b.Whether the Respondent acted ultra vires in their mandate under the VAT Act by purporting to decide on whether the services are exempt or not; andc.Whether the Respondent violated the doctrine of legitimate expectation by excluding the Appellant from exemption letter.
a. Whether the supplied services are listed in the First or Second Schedule of the VAT Act;
19.In its Objection Decision, the Respondent rejected the Appellant’s objection on the grounds that the supplied services were not listed in the First and Second Schedule of the VAT Act and could therefore not be classified as exempt or zero rated.
20.Paragraph 20 of Part II of the First Schedule to the VAT Act states as follows
21.Appellant argued that plain reading of the Act would lead one to the conclusion that services for direct and exclusive use in the implementation of official aid funded projects are exempt upon approval by the cabinet Secretary to the National Treasury.
22.It was its view that the Principal Secretary to the National Treasury by a letter dated 9th September 2016 had confirmed that the project was financed by the International Development Association (official aid) and therefore the services it offered in the project qualified for zero rating.
b. Whether the Respondent acted ultra vires in their mandate under the VAT Act by purporting to decide on whether the services are exempt or not;
23.The Appellant stated that the plain reading of Paragraph 20 of Part II of the First schedule to the VAT Act (quoted above),shows that the Respondent does not have any role in approving which services are to be exempted from tax. In its view the following issues are apparent in this Section of the law:a.The exemption is on the services and not the supplier. As such, it does not matter who supplies the services but whether the supply is made to an official aid funded projects which has been approved by the Cabinet Secretary to the national Treasury; andb.The only required approval for the exemption is by the Cabinet Secretary to the National Treasury. The Respondent has no role whatsoever in approving the services for exemption.
24.That a further reading of the Guidelines/ Framework for requesting processing and granting of tax exemption/waiver/variations/remission on a national tax, fees or charge dated 8th October 2018 leads it to the conclusion that:i.Paragraph 4 of the guidelines provide that the window for granting an exemption is provided for under Section 77 of the Public Finance Management Act, 2012. This Act provides that the Cabinet Secretary may waive a national tax, a fee or charge imposed by the National Government and its entities.ii.Paragraph 17 of the Guidelines provide that the request for rejection for exemption can only be done by the National Treasury if it is erroneous, inaccurate or does not meet the required criteria.iii.The National Treasury is to receive a request for exemption from an accounting office of a State Department. It will then process and upon approval, communicate to the Appellant confirming that the services to the project are either exempt or zero rated with a copy to the accounting officer who made the request.iv.The accounting officer will then be required to forward for exemption or zero rating of the services to the KRA for processing.
25.That its analysis and conclusion from the foregoing was that the Respondent has no role in approving services for exemption or zero rating. The Respondent’s role is limited to only processing of the exemption or zero rating as directed by the National Treasury.
26.It asserted that these Guidelines were followed and the services properly approved by the National Treasury via letter dated 9th September 2016, which letter was drafted by the PS National Treasury to the Respondent and a copy to the PS Ministry of Transport Infrastructure and Urban Development & Public Works. The latter PS subsequently wrote to the Commissioner General, KRA, via a letter dated 2nd June 2017, recommending that the exemption which included the Appellant be processed.
27.It stated that the foregoing facts and chain of events was confirmed by it witness who is the Chief Finance Officer (CFO) in the Ministry of Transport, Infrastructure, Housing and Urban Development, State Department of Infrastructure. The said CFO is the person in charge of processing tax exemption requests to the National Treasury.
28.It thus urged that the Respondent did not have a discretion to exercise in this matter, its actions in denying the Appellant the exemption was ultra vires, unreasonable and discriminative. It supported its argument with the following cases:a.Judicial service Commission v Mbalu Mutava & Another (2014) eKLRb.Jotham Mulati Welamondi vs. The Electoral Commission of Kenya Bungoma HC MISC. APPL. No. 81 of 2002 (2002) 1 KLR 486; (2008) 2 KLR (EP) 393 as discussed in the Republic vs. Kenya Revenue Authority ex-parte Funan Construction Limitedc.Republic Vs. Commissioner of Co-operatives, Kirinyaga Tea Growers Co-operative & Savings & Credit Society Ltd. Civil Appeal No. 39 of 1997 (1999) 1 EA 245
c. Whether the Respondent violated the doctrine of legitimate expectation by excluding the Appellant from exemption letter.
29.That the Respondent, as supported by his witness David Omondi Okoth, alleges that the Appellant did not apply for exemption and that the only exemption that was ever issued was granted to SMEC pursuant to a letter dated 9th September, 2016 from the National Treasury.
30.The Appellant however affirms that the letter dated 2nd June 2017 from the PS Ministry of Transport Infrastructure and Urban Development & Public listed all the consultants including the Appellant and required the Respondent to exempt them from VAT. However, the exemption was only issued to SMEC.
31.It is its view that the Appellant had a right to expect that the Respondent would strictly follow the provision of the law and the Constitution by implementing the instructions and approvals of the CS National Treasury by issuing it with an exemption certificate just like it did for SMEC. It states that this decision of the CS in excluding it from the exemption violated its right to legitimate expectation as set out in its service contract and the letter authored by the CS of National Treasury.
32.The Respondent’s decision to demand VAT from the Appellant was argued to be in violation of its right to legitimate expectation. That violation of its rights resulted in its incurrence of huge loss because it may have to dig into its pocket and pay that tax that it did not collect. It relied on the following cases to urge this point.a.Diana Kethi Kilonzo & another v Independent Electoral & Boundaries Commission & 10 others eKLRb.J.P. Bansal v State of Rajastan & Anor, Appeal (Civil) 5982 of 2001
33.The Appellant believes that it has a meritorious case with similar facts to the one in Nrb TAT 165 of 2017, H.P Gauff Ingenieure GmbH and Co KG Verses the Commissioner of Domestic Taxes, where the Tribunal decided in favour of the Appellant who was involved in official Aid Funded project and hence exempt from tax. It urged the Tribunal to affirm that the services it supplied were made to an Official Aid Funded Project which should also be exempt from VAT.
The Appellant’s Prayer
34.The Appellant prays that this Honourable Tribunal allows this Appeal and orders that the costs of this Appeal be awarded to the Appellant.
35.The Respondent’s case is premised on the hereunder documents and proceedings before the Tribunal: -a.The Statement of Facts dated and filed on 3rd February, 2022.b.The Witness Statement of David Omondi Okoth dated 2nd August, 2022and admitted in evidence on oath on the 28th September, 2022.
36.The Respondent stated that it carried out a tax audit on the Appellant’s tax affairs and identified variances between turnover income tax returns (IT2C) and the aggregate turnover declared in the VAT returns for the period 2017- 2019. The Appellant explained that the variances was because of the zero-rated supplies it made to SMEC International PTY Ltd for a contract between Kenya Roads Board and SMEC as the main consultant and in association with Kiri Consultant as the sub consultant.
37.The Respondent stated further that:a.The supplies that the Appellant had supplied were not listed in the 2nd Schedule of the VAT Act 2013 hence not zero rated.b.SMEC was granted an exemption for its supplies pursuant to a letter dated 9th September, 2016 from the National Treasury but the Appellant was not granted any exemption.c.The Appellant did not apply for exemption but instead relied on the exemption certificate granted to SMEC.d.The supplied services were not listed in the First and Second Schedule of VAT and cannot be classified as exempt or zero rated.e.The Appellant was not in possession of any document granting it an exemption or zero-rated status as prescribed by law.f.The Appellant’s assertion that it made a taxable supply in the implementation of an official aid funded project in line with Paragraph 20 of Part II of the First Schedule was invalid.
38.The Appellant contended that:a.There was no contractual relationship between the Appellant and the Kenya Roads Board (KRB). The relationship was between the SMEC International PTY Ltd of Australia and Kenya Roads Board as evidenced by the contract signed between the parties.b.The Appellant was merely mentioned as a sub-consultant but had no relationship to KRB.c.The Appellant did not append its signature to the contract to show that it was a party and bound to the contract between the two entities.
39.In the Respondent’s view, the Appellant:a.Could not allege that it made a taxable supply to an official aid funded project because no contractual relationship existed between it and the Kenya Roads Board to warrant the classification of its supply under Paragraph 20 of Part II of the First Schedule.b.Could not purport to rely on the exemption certificate of another person by merely associating with the party that has the exemption certificate.c.An exemption certificate is not Covid 19 that is easily transferable and sharable.
40.The Respondent averred that this Honourable Tribunal in TAT NO. 165 of 2017 H.P Gauff Ingenieure GmbH & CO KG versus The Commissioner Domestic Taxes held that an exemption certificate is crucial in demonstrating that there was a proper approval for the the exemption.
41.The Respondent prays that this Honourable Tribunal finds:a.The Respondent objection decision of 15th December 2021 as properly issued under the provisions of Value added Tax Act, 2013 and Tax Procedures Act hence proper; andb.This Appeal be dismissed with costs to the Respondent as the same is without merit.
ISSUES FOR DETERMINATION
42.The Tribunal having carefully reviewed the pleadings, the documents produced, the testimony of the witnesses and the submissions made by the parties is of the considered view that the Appeal herein crystalizes into a single issue for determination being whether the Respondent’s objection decision dated the 15th of December 2021 was valid and lawful.
ANALYSIS AND FINDING
43.The Tribunal shall analyse this issue under various subheadings:a.Whether the supplied services are listed in the First or Second Schedule of the VAT Act;
44.It is clear to the Tribunal that the supplies provided by the Appellant are not zero rated because they do not fall within the bracket of the good listed in the 2nd Schedule of the VAT Act.
45.Therefore, the only way the Appellant could bring its services within the VAT exemption bracket is by obtaining a VAT exemption certificate from the Respondent and or aligning its services to fall within the donor funded projectsb.Whether the Respondent acted ultra vires in their mandate under the VAT Act by purporting to decide on whether the services are exempt or not;
46.The Tribunal notes that the following facts are not in dispute in this matter:a.That the letter from the National Treasury dated the 9th of September 2016 advising the Respondent that SMEC’s services were zero rated did not include the Appellant.b.The Appellant made several attempts to obtain a similar letter exempting it from VAT without success.c.The contract for the donor funded projects was between KRB and SMEC with Appellant listed as a sub-consultant.d.The Appellant was not in possession of any document granting it an exemption or zero-rated status as prescribed by law.
47.Based on these common facts, it is apparent that the Appellant was never issued with an exemption certificate. It however notably made several attempts to obtain this exemption certificate without success.
48.Paragraph 20 of the Part II of the First Schedule to the VAT Act states as follows “The supply of the following services shall be exempt supplies-
49.The above provision of the law makes it clear that the sought exemption certificate can only be issue by the Respondent upon approval by the CS National Treasury. Whereas the Appellant presented several letters written by the PS, State Department for Infrastructure, Ministry of Transport, Infrastructure, Housing and Urban Development approving this exemption. It did not provide any letter written by the CS National Treasury specifically approving its sub-consultancy services for zero rating.
50.The letter by the KRB dated the 13th of January 2021, was very telling in this dispute. The last paragraph of that letter read as follows:
51.This in essence meant that the contract agreement dated the 1st of August 2016 was indeed a contract between SMEC and KRB. The Respondent was thus right in interpreting the exemption from the CS National Treasury as only applicable to this contract between SMEC and KRB, and none other. Put another way, the fact that the Appellant had separate sub-consultancy agreement with KRB shows and confirms that the Agreement dated 1st August 2016 and which was the genesis of the National Treasury’s approval for exemption was restricted only to the relationship between SMEC and KRB, and none other.
52.The above conclusion is reinforced and confirmed by the fact that PS, State Department for Infrastructure, Ministry of Transport, Infrastructure, Housing and Urban Development in its letter dated 2nd June 2017 and requesting the Respondent for an exemption certificate in line with the directions from the Treasury only listed the invoices that had been served on it by SMEC. It did not include the invoices from the Appellant. The invoices from the Appellant were mentioned in the subsequent letter dated the 13th of January 2021 that was sent to the Respondent by the PS, State Department for Infrastructure, Ministry of Transport, Infrastructure, Housing and Urban Development in an attempt at bringing the Appellant within the exemption bracket after the Appellant had complained about its exclusion.
53.The Tribunal holds the view that considering that the Appellant had been rightfully left out of the initial exemption bracket, the PS, State Department for Infrastructure, Ministry of Transport, Infrastructure, Housing and Urban Development ought to have obtained a fresh approval from the CSs National Treasury in line with Paragraph 20 of the Part II of the First Schedule to the VAT Act. Attempts to bring it within the tax bracket through any other way would have been illegal. This perhaps explains why the Respondent rightfully declined to act on its request to issue the Appellant with exemption certificate.
54.Moreover, it is now trite that a taxpayer can only be taxed if the statute clearly and unambiguously provides for such taxation. If the letter of the law fails to bring a taxpayer within the tax statute, then such a person shall be free from tax obligations, however unfair and unjust that maybe. This view was supported by the Court of Appeal in Commissioner of Domestic Taxes (Large Taxpayers Officers) v Barclays Bank of Kenya Ltd NRB CA Civil Appeal No. 195 of 2017  eKLR (BBK Case) where it observed as follows:
55.In tandem with the foregoing decision, the Tribunal holds that no document was presented before it that could be read plainly to mean that the Appellant had been exempted from VAT. The document presented only showed that SMEC had been exempted from VAT. The Tribunal would thus be remiss if it tries to look for the intention of these documents and or if it takes it upon itself to overlook documents that plainly and clearly state that only SMEC has been excluded from VAT liabilities. By implication therefore, the Appellant is liable to tax under Section 5(1) of the VAT Act.
56.The Tribunal has also looked at its decision in TAT NO. 165 of 2017 H.P Gauff Ingenieure GmbH & CO KG versus The Commissioner Domestic Taxes where Tribunal found that the supplies made by the Appellant in that case fell within the ambit of financial Aid Funded Project and were therefore tax exempt.
57.However, the facts in Gauff case involved an Appellant who had its head office in Germany and who had signed a contract with the Ministry of Transport for road construction. In this case, the Appellant is a local company and it did not sign a contract with the Ministry of Transport. The National Treasury has also not drafted a specific letter addressed or copied to it and confirming that it was executing a donor funded contract.
58.Paragraph 15 of Gauff case addressed the issue of donor funded projects and it reads as thus:
59.The above passage makes it clear that the Tribunal made the following pertinent observations which the Appellant has not complied with in this case:a.That the tax exemption is not automatic and the National Treasury has to confirm to the sector ministry that this is a donor funded project. The sector ministry would then make an application to the Respondent for necessary processing. In this case the National Treasury has not provided the required confirmation for the Respondent and the Respondent has also not processed any request for the Appellant.b.The request for exemption was to be made before the service is provided based on the quotation and proforma invoice provided by the service provider. In this case the request seemed to have been made after the service was provided.c.The Respondent was required to authorize the Appellant to make supplies on a zero-rated basis. Such authorization has not been issued in this case.
60.The Tribunal also stated in Gauff case at:a.Paragraph 16 that to discharge its duties, the Appellant is required to provide its invoices to KRB to facilitate the processing of tax exemption request before the services are offered. The Appellant did not provide evidence in this matter confirming that it had supplied KRB with its proforma invoices before it executed the contract. It therefore failed in the discharge of its duties.b.Paragraphs 19 and 20 that the Appellant in the Gauff Case had made the application and it was expected that the certificates would be issued in due course. Moreover, the Respondent had not pleaded that the said certificate would be rejected and or not issued. On the other hand, in this case, it is not clear whether the Appellant has followed the right procedure in requesting for its exemption. The Respondent has also expressly stated through its witness David Omondi Okoth that the Commissioner had declined to issue the said exemption certificate. This position was confirmed by the Appellant wo averred in Paragraphs 33 to 35 of its Statement of Facts that that the Commissioner had acted in abuse of power and authority in declining to issue it with the said exemption certificate.
61.It is apparent that apart from its failure to obtain the exemption certificate, the Appellant has also failed to prove or show that it had filed its exemption certificate application before it commenced the provision of services that have given rise to this Appeal.
62.The Appellant did not present any agreement or sub-consultancy agreement that it signed with either the KRB or SMEC in relation to any donor funded project. This would have been the basic point from where the Tribunal could have commenced its consideration on whether the Appellant was involved in a donor funded project.
63.The absence of a specific agreement signed between it and KRB means that an agreement that can give rise to the fact that it had offer consultancy services on a donor funded project is non-existent, for which reasons it cannot benefit from an exemption that is intended for donor funded projects.
64.Based on the above, the Tribunal arrives at the conclusion that the Respondent merely abided by the request for the CS National Treasury and that of PS, State Department for Infrastructure, Ministry of Transport, Infrastructure, Housing and Urban Development when it granted SMEC its exempt status certificate. It therefore acted lawfully and within its mandate in enforcing and implementing the request that had been presented to it.d.Whether the Respondent violated the doctrine of legitimate expectation by excluding the Appellant from exemption letter.
65.The case relied on by the Respondent of Ecobank Kenya Limited vs Commissioner of Domestic Taxes (2012)eKLR stated as follows:
66.The Appellant has not tabled any express promise that it was given by the Commissioner that it would issue it with an exemption certificate. This would have ordinarily been proved vide a letter, a ruling by the Commissioner or a contract. None of these was presented.
67.The Appellant has also not shown:a.That it is a common practice that any person who applies for an exemption certificate would obtain it.b.It had complied with all the pre-approval legal requirements that have been discussed in the foregoing paragraphs of this Judgment so as to be reasonably expectant of a positive decision from the Commissioner.c.There exists a specific law which compels the Commissioner to issue it with the said certificate and from where he has thus obtained its legitimate expectation.
68.The Approval that was issued by the CS National Treasury was also not specific to the Appellant, it would thus not have any legitimate expectation from an approval that neither mention it nor was it directly addressed to it.
69.The Tribunal holds that non-compliance by the Respondent in issuing the certificate sought does not give rise to legitimate expectation. The Supreme Court of India also stated in J.P Bansal v State of Rajastan and Another, Appeal(Civil) 5982 of 2002, which was cited by the Appellant that for a legitimate expectation to arise the Appellant ought to have shown that he was deprived of some advantage or benefit which he had previously been permitted to enjoy and which he expected to continue partaking. He must also have received assurances that this benefit or advantage would not be withdrawn. This was not the case in this matter.
70.The Appellant has not been deprived anything in this dispute nor has anything which it was enjoying previously been withdrawn. The upshot of this is that the claim for legitimate expectation has not been sufficiently proved by the Appellant. The claim is thus dismissed.
71.The upshot of the foregoing analysis is that the Appeal lacks merit and the Tribunal accordingly proceeds to make the following Orders ;-a.The Appeal be and is hereby dismissed.b.The Respondent’s objection decision dated the 15th of June 2021 confirming as assessment for VAT of Kshs 30,818,305.29 be and is hereby upheld.c.Each party to bear its own costs.
72.It is so ordered.