Civil Reference No. 7 of 2004
The appellant, Panafrican Energy Tanzania Ltd, produces and supplies gas for power generation and to industrial, commercial and vehicular customers. The respondent Commissioner General (TRA) issued two notices of amended/adjusted tax assessments totalling substantial sums. The appellant objected to these assessments under section 51(1) of the Tax Administration Act, 2015 (TAA), and simultaneously applied under Regulation 95 of the Tax Administration Regulations, 2016 for a waiver of the mandatory deposit required under section 51(5) of the TAA before an objection can be admitted. The Commissioner refused the waiver, stating the appellant had not shown good reasons, and required payment of the statutory deposit (the greater of the undisputed tax or one-third of the assessed tax) before the objection would be admitted. Aggrieved by this refusal, the appellant appealed directly to the Tax Revenue Appeals Board (TRAB) against the refusal to grant the waiver, invoking section 16(1) of the Tax Revenue Appeals Act (TRAA) and Rule 6(2) of the Tax Revenue Appeals Rules. The TRAB reduced the deposit to 5% of each assessed amount and ordered the objection to be admitted and determined. Dissatisfied, the appellant appealed to the Tax Revenue Appeals Tribunal (TRAT), which upheld the TRAB's decision. The appellant then appealed to the Court of Appeal.
(1) Whether the Tax Revenue Appeals Tribunal erred in upholding the TRAB's findings regarding the sufficiency of reasons advanced for a waiver of the tax deposit under section 51(6) of the TAA. (2) A threshold issue raised by the Court itself: whether an appeal lies to the TRAB against the Commissioner General's refusal to grant a waiver or reduction of the assessed deposit, and whether such an appeal was properly founded under section 16(1) of the TRAA (as amended) or section 53(1) of the TAA.
The appellant, through counsel, initially argued (in grounds later partly abandoned) that the assessments were based on an incorrect tax base amounting to legal/factual uncertainty warranting a waiver, that sufficient evidence of financial hardship had been submitted, and that the Tribunal failed to consider its submissions. At the hearing, only the first ground was pursued. When the Court raised the competency issue, counsel for the appellant conceded that section 16(1) of the TRAA did not support the appeal but argued that section 53(1) of the TAA, which allows appeal against an 'objection decision or other decision or omission' of the Commissioner General, covered the refusal to waive the deposit, and thus the appeal to the TRAB was competent. The respondent's counsel countered that the decision to reduce or waive the deposit is a matter of the Commissioner General's discretion under section 51(6) of the TAA, that such discretionary decisions are final and not appellable to the TRAB, and that any challenge should be by way of judicial review rather than appeal. The respondent further argued that the appellant's grounds for waiver (incorrect tax base, failure to account for tax already paid) were properly matters to be addressed during the objection proceedings themselves, not at the waiver stage.
The Court of Appeal held that the appeal before the TRAB was incompetent. It found that, following the enactment of the TAA, section 16(1) of the TRAA was amended to restrict appeals to the Board to cases involving an 'objection decision' of the Commissioner General made under the TAA — a narrower formulation than the previous provision, which allowed appeals from any 'final determination' by the Commissioner. Since the Commissioner General had not yet made an objection decision (the objection was still pending admission, contingent on payment of the deposit), the appellant's appeal to the TRAB, which arose from the refusal to waive the deposit rather than from an objection decision, did not fall within section 16(1) of the TRAA. The Court did not need to resolve whether section 53(1) of the TAA's reference to 'or other decision or omission' could independently support an appeal, because the cross-reference in section 53(1) mandated compliance with the TRAA's appeal procedure, which the appellant's appeal failed to satisfy. Invoking its revisional jurisdiction under section 4(2) of the Appellate Jurisdiction Act, the Court struck out the incompetent appeal before the TRAB and nullified the proceedings and decisions of both the TRAB and the TRAT. Consequently, the Court found it unnecessary to consider the substantive grounds of appeal regarding the waiver. No order as to costs was made.
The judgment clarifies the scope of appellate jurisdiction of the Tax Revenue Appeals Board following amendments introduced by the Tax Administration Act, 2015, confirming that appeals to the Board under section 16(1) of the TRAA (as amended) are confined strictly to 'objection decisions' of the Commissioner General, and do not extend to ancillary decisions such as a refusal to waive or reduce the statutory deposit required under section 51(5) of the TAA. The decision underscores that procedural preconditions for objections (including the deposit requirement and any waiver thereof) are distinct from, and not equivalent to, objection decisions themselves, and thus disputes over waiver refusals cannot be appealed to the Board until an actual objection decision is rendered. It also illustrates the Court of Appeal's willingness to invoke its revisional powers under section 4(2) of the Appellate Jurisdiction Act to correct jurisdictional defects in the tribunals below sua sponte, even where the parties themselves did not raise the competency issue, thereby reinforcing the principle that jurisdictional competence is foundational and may be examined by the appellate court at any stage.'
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