Orica Ghana Limited v Commissioner-General, Ghana Revenue Authority

Judgment

p. 1Source page 1IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA A.O. 2026 CORAM: M ENSAl -1-DATSA (MRS.), JA (PRESIDING) AHMED (l\1RS), JA ARMAH-TETTEH, JA ORICA GHANA LIMITED YRS. 2ND JANUARY, 2026 THE COMMISSIONER-G RA - RESPONDENT/APPELLANT MENSAH-DA TSA, JA. ·rhis is an appeal by ppellant (hereafter refened to as Appellant) against the judgmen , Accra, Commercial Division dated 19th July, 2022 ( as an ap favour of the Appellant/Respondent (hereafter referred to as Re The grounds o a'~e stated at page 203 of the Record of Appeal as follows: a. The J l:1dgment 1s against the weight of evidence . b. The decisio_n ofthe High Court to accept as authentic the disputed photocopied VAT Relie • Purchase Orders (VRPOs) is against the weight of evidence. c. The kligh e ourt erred in law by holding that the Respondent erred in apportioning of the Appellant's business income into manufacturing and management service. • I

p. 2Source page 2'1N\fK9 :iO 3)11\H3S 1\fDIOnr \fN'1H9 :10 3)1AH3S WDIOnr '1N'1H9 :10 3)1AH3S wrnonr '1N'1H9 :10 3)1AH3S 1'1fl)IOnr Particulars of error of law 1. The High Court misc onstrued the meaning and effect of Article 296 ( c) of the 1992 Constitution on the exercise of discretionary po er. 11. 111. IV. The High Court mis construed the meaning and effeGt of�ction 58( 4) of the Internal Revenue Act, 2015 (Act 896) on tre�m .ent at business activities of a company. " The High Comi ened in law by misconstruing the meaning and legal effect of regulation 15( 4) (a) (iii) and (b) of the Minerals and Mining Regulations, 2012 (L.I. 2177) on certificates of competency, business licences and permits. The High Court ened in law by misoem truing the legal effect of Section 34 of the Income Tax Act 2015 (Act 896) on an ti-avoidance 1·ules. v. The decision of the High Cou e hotocopies of the VRPOs in dispute is against thew • uced. At the same page 203 of the Record ellant stated another ground ( c) as follows: The High Court erred in law b� 0lding that the Respondent ened in depriving and/or denying the Appellant lo ation ince tive as a manufacturing business. Particulars of error 1. The High law by construing Respondent's conduct of apportioni siness into manufacturing and management service 1 anagement as recharacterization of its business. We noted that none of the Coonsel for the paiiies argued this second ground (c) so we deem it abandoned ana will not address it. The reliefs soug�b;Y. the Respondent/Appellant from this Comi are as follows: I. An order setting aside the entire judgment of the High Court dated 19/07/22. II. Any other order(s) as this Honourable Court may deem fit. &tl'flflil> tRU£ �oPY -<J �-

p. 3Source page 3The Appellant/Respondent is a limited liability company incorporated under the laws of Ghana and engaged in the business of manufacturing, assembling, and selling of bulk commercial explosives . The Respondent / Appellant is the head of the Ghana Revenue f\Ut o ity (GRA), a statutory body responsible for tax administration and revenue collection ·.'/i. Ghana. The GRA 's core tasks include the auditing of business a&ivities of: companies to ascertain their tax liabilities . The brier facts of this matter are that sometime in 2017, the A:rwellant conducted a lax audit or the Respondent's business for the ~ d 2010 to 2016 years of assess ment. The Appellant under the tax laws grants exem12tions and/or incentives to certain types of businesses . The Respondent has been ·n the ining, manufacturing and supply of mining equipment for several • s nature of work, is entitled to some reliefs which it enjoys. The Appellant app01iioned the inc ent into income derived from rnanulacturing acti vities and incom from n- anufacturing activities. According to the Respondent by doing so, t e Appellant enied it the full location incentive to which the Respondent was entritled uader the Income Tax Act, 2015 (Act 896). It staled that the Appellant also rejected P. otocopies of VAT Relief Purchase Orders (VRPOs) which had earlie • b en Qbta· ~a, verified and initialed by its officer in the e of US$6,620,789.87 on the ground that they were photocopies and a t:(_Commissioner-General was not under obligation to accept photocopies of VRPOs . The Respondent herein ols>jected to the tax assessment and received an objection decision. It then apP,ealed o the High Court on 15th November 2021 against the objection of the Appe 1 nt herein on the following grounds: I. 11. The ~espondent erred in law by denying the Appellant its full entitlement of location incenti ve under paragraph 3(6) of the First Schedule to the Income Tax Act, 20 5 (Act 896). he Responaent erred in law by apportioning the Appellant's business income info manufacturing and management service contrary to A1iicle 296 (c) of the 1992 Constitution of the Republic of Ghana. 3 lf\£01RUE coPl - ~ •••••••••• I"". "L ACCAA Of 1'PP~ •

p. 4Source page 4111 . The Respondent erred in law by denying the Appellant the use o Value Added Tax (VAT) credits which had accrued prior to the 2013 year of assessment. 1 v. The Respondent erred in law by denying the Appellant the use of its legitimate income tax credits . v. The Respondent erred in law by rejecting photocopies of the Purchase Orders (VRPOs) contrary to secti Revenue Administration Act, 2016 (Act 915) and section 166 Act, 1975 (NRCD 323). The Respondent herein prayed the High Court for the following reliefs: 1. A declaration that the Respondent by apportioning the Appellant's business income into m management service contrary to paragraph 3 ( 6) of the Fir ncome Tax Act, 2015 (Act 896) and Article 296 (c) oft ion of the Republic of Ghana . ii. A declaration that the Respo by depriving and/or denying the Appellant location incenti e as a manu acturing business. 111. A declaration that the Respondent e ed ih law by depriving the Appellant of Value Added Tax (VAT) eredits ofUS$653,412.69 which had accrued prior to the 2013 year of ass 1v. A declaration that t red in law by depriving the Appellant of income tax credit 9 arising from overpayment of tax due to the Appel I ant i1 assessment. v. A declaratio pies of the VAT Relief Purchase Orders Vt. Vll. Vlll . (VRPOs) at ccordance with section 91 of the Revenue Adrninistr (Act 915) and section 166 of the Evidence Act, I 975 (NR An order directing the Respondent to consider the VAT Relief Purchase Orders (:VRPOs~ of an amount ofUS$6,620,789 .87 in the computation of the Appellant's tax iability . An order granting the direct tax credit of US$59 l ,404. 79 and indirect tax credit ofUS$653,412.69 due the Appellant for the tax audit period. An order for the Respondent to issue a revised tax assessment of the Appel !ant for the 2010 to 2016 years of assessment taking into consideration al I the reliefs granted by this Honourable Court. 4 IFIED TRUE. C~P: ~

p. 5Source page 5vNitH9 JO n!AH35 Wl)IQOI VNVH9 JO 3)UIU3S wrnonr VNVH9 JO 3)1AU3S Wl)IQfil VNVH9 JO 3)1AU3S Wl)IQfil 1x. An order directing the Respondent to refund any tax credits owing to the Appellants as a res_u_lt of th~ revised audit within 90 days f~ ~ I the date of final judgment, failing which the Respondent shall pay mle es on any ensuing tax credits. x. Costs, including Lawyer's fees. x 1. Any other order(s) that the Comi may deem fit. The learned High Court Judge delivered her judgment on t upholding the tax appeal against the Appellant herein . She made no order as to costs. The Respondent therein being dissatisfied with the said jt1dgment has appealed. Rule 8 ( 1) of the Comi of Appeal Rules, 1997 ( s that an appeal shall be by way of re-hearing. The law that appeal is by way of rehe irmed in several cases including Mary Tsotso Laryea & 4 Laryea [2018] 123 GMJ 169, Koranteng II & Ors v. Klu [1 O, Tuakwa v. Bosom [2001- 20021 SCGLR 61 and Gregory v. GMJ 1. We wi I l discuss the grounds of appea in the same order both Counsel for the paiiies did. Due to the fact that tax r 1 t ers are technical in nature , we have decided to reproduce a substantial po1iiom of: tne wr~tten submission of both Counsel for the parties to assist in unders rand our decisions . Ground (b ): The decisio photocopied VAT Re • e evidence. ourt to accept as authentic the disputed rders (VRPOs) is against the weight of In arguing this ~} eu d of the appeal learned Counsel for the Appellant contended that a review oft e VAT returns of the Respondent revealed declarations in respect of relief supplies of VAT. He explained that relief supplies are sales that are generally rel 1eved of V.AT through a VRPO for taxpayers within the Mining and Petroleum indust (y. € asserted that it is the duty of the Respondent to insist that their customers /~lients attach VRPOs as a VAT waiver in order that they could be entitled to VAT waiver failing which the Respondent would be made to pay the relevant VAT on the issued invoice. He contended that in this matter, some of the VRPOs could ot be validated to activate the waiver hence their rejection. Counsel stated that such supplies are generally classified as Zero-rated, Exempt, Relief or

p. 6Source page 6.'o'N'o'H9-:IO 3Jl/\H:IS ,vIJianr 'o'N'o'H9 :10 3JII\H3S 1'o'Dtanr 'o'N'o'H9 :10 3ll/\H3S 1"Dtanr 'o'N'o'H9 :10 3lll\H3S wD1anr Standard Rate supplies. He asserted that when the total of relief supplies declared on the VAT returns is not thoroughly confirmed, supply types could be wrongly characterized and it could negatively affect indirect tax paymen hat this technique of auditing is crucial to the Appellant as such actim1s and inac i0ns are usually mechanis~ns taxpayers use to evade taxes. Learned Counsel for the Appellant contended that the Relief Supplies declared by the Respondent on the VAT returns were critically vetteti and it emerged that the rnrnrnnt of relief supplies declared was more than the amount confirmed. Thus, the excess relief supplies which constituted overstatement of VRPOs were treated as Standard Rate Supplies . He added that the VRPOs lia coul not be validated were not accepted. Counsel for the Appellant argued that th is ground of appeal is premised on the authenticity or otherwise photocopies of VRPOs. !·le quoted Sections 41(1), (6) to (8), an alue Added Tax Act 2013, (Act 870) as amended. He submitte • is enjoined by law to keep a duplicate copy of the issued tax in o'ce a d not a photocopy of it. Moreover an application for claim of input mmst be u p01ied by original VAT invoices, indicating the name and VAT re , istration number of suppliers, which should not be more than six months old. He a sert-ed hat the Respondent did not provide all the VRPOs required to fully auhenticate the ctleclarations of relief supplies on the VAT returns and its applicat' e stipulated period of six months so the /\ppellant had no o ct the overstated VRPOs in its final Audit Report. He relied 01 v. The Republic [1972] 2 GLR 262, quoted Order 21 Rule 12 ivil Procedure) Rules 2004, (C.I. 47), Sections 41(2), 48(1 I) (a) f the Value Added Tax Act 2013, (Act 870) and Sections 165, 1 f the Evidence Act, 1975 (NRCD 323). He submitted that the refusa ant to accept scanned copies of initialed VRPOs is in line with Section a, (b) and (c) of Act 870. In his response, learned Counsel for the Respondent contended that there was no ground on the authenticity or otherwise of the photocopied VRPOs before the Comi below, neither zy the Com1 invited to make any determination on the authenticity or the photocopied VRPOs. He emphasized that the authenticity of the photocopied V R POs were never questioned either during the objection process or before the 6 ACCM

p. 7Source page 7Court below. He submitted that the VRPO is not a tax invoice as contem lated under Section 4 l or Act 870 and regulation 21 of the Value Added Tax Regulations, 2016 ( L. I. 2243 ). He asserted that assuming the erroneous interpretation give to ection 41 (2) by the Appellant is adopted, the responsibility of retaining a copY, cloes not arise in the case of the Respondent because the Respondent was a recip" e,nt of the VRPOs from their customer and not the issuer of the same. He urged the Court to adopt the Respondent's interpretation to the effect that section 41(2) of Act 870 does not apply to the Respondent under the cun-ent circumstances. Counsel argued that photocopies constitute "copy" under tax law and also "duplicates" under Section 164 of the Evidence Act, 1975 (NRCD 323). He explained that once the invoice or VRPO is an accurate reproduction which is similar or identical to the original, it constitutes a copy of the original under the tax laws and a duplicate under NRCD 323. Counsel for the Respondent relied on Sect t 915 and Section 26 of NRCD 323 to support his submissio1 that the officers of the /\ppel !ant obtained and initialed th without any reservations, the authenticity of the initialed documen ,s i conclus-i¥ely presumed. He added that the Appellant also never raised any co~ rns regarding their authenticity. He submitted that the Appellants assertion that the refusa to accept photocopied VRPOs is to prevent recycling of invoices 1 unfounded because VRPOs have unique serial numbers so taxpayers can me VRPO twice. Relying on the case of d. v. Takoradi Flour Mills Ltd. [2011] DLSC 2650 learned espondent argued that failure to admit the photocopies of the unfair to the Respondent. He stated that the Respondent would ay the face value of the VRPOs despite having complied with t charging VAT and accepting VRPOs in lieu of the payment of ti , d. I ,earned Counse, for the Respondent contended that the Appellant's emphasis on "original VAT i voice" is misleading because Section 48(l)(a)(ii) of Act 870 requires th possession of a tax invoice to claim an input tax and not an "original" tax invoice as the Appellant seeks to infer. Also, the said Section 48 relates to the claim of iriput tax which is defined under Section 65 of Act 870 as "tax payable by a taxable person in respect of an acquisition of a taxable supply of goods and services or import". Counsel explained that from the definition of input tax it does not include 7 ER'IIFIED t~! C~PY ..-----...----. ,.. . ........ REGlSTAA R ~~•o.::..:,• •,:_• "'{ ;,auR:;·aF APPl:AL. ACC

p. 8Source page 8:vNVH9 :10 3JIJ\l:13S 1vD1anr VNVH9 :to 3JIAH3S ,vrnanr VNVH9 :10 3JIAH3S wD1anr VNVH9 :10 3JIAH3S w1J1anr YR.PO because VRPOs are not acquired as a result of an acquisitio /, of a taxable supply of goods and services but as a result of a supply of goods a~ services to a person who is exempt from tax. He concluded that Section 48( 4)(.Q) ot ct 870 as quoted by the Appellant in reference to the claim of input tax cloes not affect the Respondent 's claim regarding the recognition ofVRPOs. Both Counsel for the paiiies cited the same cases including Itichoice Ghana Ltd. v. I ntcrnal Revenue Service (2011] 2 SCGLR 783 to af irm tliat a tax statute is to be construed strictl y and nothing is to be implied . It is trite that a tax can only be imposed where there is a c ear and express word for that purpose and that nothin g is to be implied. /\t page 198 of Vol. 2 of the Record of Appeal , the learned High Comi Judge said: "Importantly, Respondent did not re y part of Act 870 which defines the copy mentioned in meaning duplicate a nd excluding photocopy. The photocopied VRPOs h(J_vj,n met the threshold requir ements in the Evidence Act, and the Respond ents havi g not disputed that they had earlier authenticated the origina;s bJy initialing same as provid ed by Section 91 (J) (a) c111d (c) cdAc t 9 J 5, nothiKJg-s t nds in the way of this Court in holding that the Respondent shout id VRPO 's in its assessm ent of the Appellant 's tax Ii We have carefully c ts and circumstances of this matter. After evaluating the sub • ounsel for the paiiies which we have already reproduced herein , we are satisfied that the learned High Court Judge 's decision to accept the photoCOJ;l • eel V.A T Relief Purchase Orders (VRPOs) is not against the er cleeision is legally right and we endorse same. ground of appeal fails. ig Comi erred in law by holding that the Respondent erred in apportionin g of the Appellant 's business income into manufacturing and management se ·vice. The Appellant listed several instances of the error of law. In arguing the appe al learned Counsel for the Appellant reproduced Paragraph 3(1) and (6) of the First Schedule of Act 896 on location incenti ve. He stated that the

p. 9Source page 9·"NVH9 .:10 3Jll\ll3S ,vrnonr VNVH9 :10 D1All3S ,vrnonr VNVH9 :10 D1All3S ,vrnonr VNVH9 :10 3'.>IAH3S ,vrnonr rebate of' 50% was specifically created as an incentive to motivate manufacturing businesses to be located outside of the regional capitals which woultl in turn create jobs for the youth in the rural community and help check rural-urban drift or migration. Counsel asserted that the Respondent is engaged in providing mining support and quarrying services as an additional business activity:. He contentled that the Respondent contracted with its client to perform two dj,tinct usiness activities which cannot be termed inseparable and for which reascm t Respondent would describe the provision of services as an integral part of the manufacturing business. He stated that the Respondent's records and other accompanying documentations revealed that the Respondent has two streams of income ; income from sale of the manufactured explosives and income from management services (a non­ manufacturing activity) . Counsel asserted tha the Respondent processed the invoices separately, one for manufacture nd another for service activity. He argued that the action by the in separating the invoices defeats the argument that the entire ble and considered as one process. Learned Counsel for the Appella at the Appellant did not deny the Respondent its entitlement to location incenti e as a manufacturing business, the Appellant only limited the location incentive to the pmiion of the chargeable income attributable to the manufacturing ousin€ss. He explained that the Appellant relied on Part 2, Section 1 (2) (6) of the Th.rd Schedule of Act 592 now repealed and Paragraph 3(6) of Act assessing the Respondent. He contended that t ot err in apportioning the chargeable income or Respondent bet ·ed explosives and management services (non- rnanufactured explosives) ancl submitted that its action was consistent with the It was submitted by learned Counsel for the Appellant that the Court below erred in holding that the ppellant did not follow due process in exercising its discretion under Article 296 (a) of the Constitution 1992. He relied on the case of Republic v. Registrar of High Court; Ex Parte Attorney-General [1982-1983] GLR 407 to invite thi Court to overturn the said holding of the Court below. In his response, learned Counsel for the Respondent argued that by "manufacturing business", the law refers to the nature of the business of the entity and not the 9 ~ -- REG\ST .,, •••••••• ccAA ... ····••·•••·•1••0••f APPEAL. A coUR • R

p. 10Source page 10individual activities conducted by the entity. He submitted that while f anufacturing business is not defined by Act 896, Section 133 of Act 896 provides ~hat a business includes a trade and the Courts have held that a trade must involve some commercial activity as well as have a counter paiiy. Counsel cited the cas s of Ransom (Inspector of Taxes) v. Higgs [1974] 1 WLR 1594 and Ensign Tankers (Leasing) Ltd. v. Stokes (Inspector of Taxes) [1992] 1 AC 655 in support o his submissions . I le explained that in the conduct of trading in man factured e plosives, the Respondent provides some other services which are integral, ancil ary, incidental to or connected to its business, such as transporting thee plo~ es to ·ts customers at a lee. He emphasized that Section 58(4) of Act 896 states that all activities of a company are treated as conducted in the course of a sing e business of that company. He asserted that the Appellant is confusing chargeable inco e from a manufacturing business with chargeable income from a tivity or income from manufacturing . Counsel argued that wher distinction between the income eligible for specific tax rates, First Schedule to Act 896 as amended by Act 902 does not er inction in the income of the manufacturing business. He cont location inventive is granted to a manufacturing business and 0f a manufacturing business from rnanul21cturing activity only . Counsel for the Respondent hat the manufacturing of explosives is regulated by the Mineral ulations, 2012 (L.I. 2177). He stated that Regulation 15 of L.I. issuance of certificates of competency, business licences and ed that Regulation 15(4)(a)(iii) and (b) of L.I. 2177 specifical t aut orizes a holder of a ce1iificate of competency to operate an explosives manufae-tur-ing, store, transport and deal commercially with explosives. He argued that it • s hard to imagine that in the light of the expression "manufacturing busi ess1Z.Jthe Appellant would imply that the storage and transportation of; explosives to customers by an explosives manufacturing business, as operated b;y the ReSP.(')ndent must be treated separately . It \,vas contended by learned Counsel for the Respondent that the exercise of the discretion to re-characterize is only warranted by Section 34 of Act 896, by which the Appellant car,i re-characterize or disregard an arrangement that is entered into or carried out as pa1i of a tax avoidance scheme which is fictitious or does not have substantial economic effect; or whose form does not reflect its substance. He 10 __.._.,_, ~'(

p. 11Source page 11V~VH9 JO 3)111113S WIJIOO! VNVH9 l0 3)1AU3S 1Vl)IO0! 11NVH9 JO 3)111113S ,Vl)IOO! 11NVH9 l0 3)1AU3S ,Vl)IOOI asserted that in the case of the Respondent's manufacturing business, no charge of fictitious transaction was labelled against it by the Appellant so it is ~ apricious use or discretion for the Appellant to re-characterize the Respondent's manufacturing business into manufacturing and service management (non-manufaGturing activity). The Appellant's position is that the provision of services such as transportation and delivery by the manufacturing entity does not constitute manufacturing activity so does not fall within the definition of paragraph 3 ( 6) of the First SGhedule to Act 896 which relates to chargeable income of a company from a manufacturing business . Counsel for the Appellant emphasized that income derive from the provision of service cannot be treated as income derived fron/.nanufactm ;'ng. He submitted that i r the decision of the trial Court is allowed to stancl, it V✓- ill open the flood gate for other manufacturing companies to avoid p P,rescribed rate of tax by subsuming other business activities under . The Respondent's case is that it wa s client (Newmont Ghana Company Limited) to supply manu s for blasting of ore. It was rurther contracted by the said client to transRort tfie manufactured explosives upon completion to the site of the client a fill th a illed holes with the said explosives at a service fee. We agree with learned Counse spondent that it would be inaccurate or improper to limit a man s to the single activity of manufacturing which is the process of erials into a finished product when in fact her activities, depending on the product it manu !actures, fort of its objectives as a manufacturing business. We are of the opinion tha it would be best if the Appellant considers each taxpayer's unique circumstances than a one size fits all approach in carrying out its mandate. We emphasize that ou decision in this matter is based on the nature of the business activities canC'<l out by he Respondent herein which may be different from others in the same business. Section 58( 4) of Act 896 states that all activities of a company are treated as conducted in the course of a single business of that company. After evaluating the judgment on appeal, we conclude that : 1. The Higfi: Court Judge did not misconstrue the meaning and effect of Article 296 (c) of the 1992 Constitution on the exercise of discretionary poN rcoP1 11 tf.tt1\f\f.01ttU '.l" ql WR..!:.E.G~\.;e..S,~ ~ - ···{OiiRT"cif P.PPEAt.. ,..cclll-

p. 12Source page 12'1N\fH9 dO :Dlf\lJ3S 1"\fDIOOf \fN\fH9 :iO 3)1J\H3S 1\fl)IOOf \fN\fH9 :iO 3)1J\H3S l\fl)IOOf \fN\fH9 :iO 3)1J\H3S l\fDIOOf 2. The High Court Judge did not misconstrue the meaning and effect of Section 58(4) of the Internal Revenue Act, 2015 (Act 896) on treatment of business activities of a company. 3. The High Comi Judge did not err in law in construing the m€aning and legal clTect of regulation 15(4) (a) (iii) and (b) ofthe ' Minerals and Mining Regulations, 2012 (T ,. T. ? 177) on certificates of t.:01npetency, business licences and permits. 4. The High Cou1i Judge did not err in law in construing the legal effect of Section 34 of the Income Tax Act, 2015 (Act 8@6) on ant' -avoidance rules. 5. The decision of the High Comi Judge to acceut the photocopies of the VRPOs in dispute is not the weight of evidence ad uced. We state that considering the nature of the Respondent's usiness with the client in issue, the Appellant erred in appo1iioning o en 's business income into manufacturing and management service. This ground of appeal fails based on o . Crnund (a): We will discuss the first ground 1.J~appeal that t e judgment is against the weight of evidence, last. A complaint that a ju t the weight of evidence invokes the jurisdiction of this Com of the Comi of Appeal Rules, 1997 (C.I. 19) to rehear the matter evidence led and come to a decision, either in suppo1i of or ag • • om 's findings and decision. Where the decision is not supp01ied b dduced, the appellate Court may vary it or make such orders as t the trial Judge ought to have made. In Republic a , Ex Parte AABA (Substituted by Asmah) [2013-2014] 2 SCG LR l me Court held in Holding 2 that: ··,he ef!!f,.t ofal appeal on the ground that "the judgment is against the weight q/ evidence • was to give jurisdiction to the appellate court to examine the totality of) he evidence before it and come to its own decision on the admitted and undisputed facts. In the instant case, the appellant, by that ground of appeal, was implying that there were pieces of evidence on record which, if applied properly or correctly, could have changed the decision in his{ij~ ,- 12 RtlflED t~J h - ~ ----- ..... REG\ Ser, A .. _ .... uR:;-oF·;..ppEAL-AC I""'

p. 13Source page 13'dN\tH9 ~o ])1/\ll:1S WDIOOf '1N'1H9 :10 3)1J\ll3S wrnanr '1N'1H9 :10 3)1J\ll3S ,Vl)JOnr '1N'1H9 :10 3)1J\ll3S 1'11)100f or that certain pieces of evidence had been wrongly applied against him. The onus in such an instance was on the appellant to clearly_ and properly demonstrate to the appellate court, the lapses in the judgment being appealed against. " There is a rebuttable presumption that a ruling or judgment of a Court of competent jurisdiction is legally right or in accordance with law hence the onus is laced on an Appellant to prove otherwise. In arguing this ground of the appeal learned Counsel or the Appellant relied on several cases including Oppong Kofi & Others v. Attibrukusu III [2011] 1 SCG LR 176, Agyeiwaa v. P & T Corporation (,1,007-2008] SCGLR 985, Oppong v. Ancrfi (2011) I SCGLR 556, Terna Oil Refinery v. 14.frican Automobile Ltd. (201 I) 2 SCGLR 709 and Gregory v. Tandoh iv & n on [2010] SCGLR 971. He contended that the learned High Cami n she used the purposive approach to define the word "manufac • Regulations 15 ( 4) ( a) (iii) and (b ), 207 of the Minerals and Mi • 012 (L.I. 2177), the definition of manufacturing used in the Inter lassification of all Economic Activities, 2020 (ISIC) and submit cturing by reference to the statute in issue means to produce explo . h es through a physical or chemical process from a number of precursor subs sserted that the moment the chemical transformation of materi new products, the manufacturing process is completed and any other activit' es s bsequent to the said products constitutes a di lTcrent set of activities. He suo1· itted that for tax purposes, all activities can be separated. He quoted S ctie1~ 8{4) of the Income Tax Act, 2015 (Act 896) and Section 92( I) of ~ - Counsel asserted that the Respondent did not adduce sufficient evidence to show where the Appellant erred in assessing the tax liability of the Respondent. e asserted that the Appellant continuously reviewed the tax liability of the Respondent where sufficient evidence was provided by the Respondent a d just caused showed. He emphasized that the Appellant has demonstrated that having the mandate to dispense a fair and just tax administration, it fully complie with the tax laws and all other appropriate laws. In his response, learned Counsel for the Respondent quoted the case of the Republic v. Conduah, Ex Parte AABA (Substituted by Asmah) [2013-2014] 2 SCGLR I 032. He argued that instead of the Appellant discharging its duty of demonstr ~~ng

p. 14Source page 14that there were pieces of evidence on record which if this Court considered it would have come to the conclusion that there were some lapses in the judgm nt of the Court below which otherwise would have changed the decision in its favour},..it only nsscrted that it had always been professional in dealing with the Respond~ ncl that the Court below should not have defined the word "manufacturing" as fou din L.I. 21 77, a non-fiscal law purposely. He contended that the only evidence supported by the record is that the Appellant wrongly assumed that rnanuf~ ring business as used in paragraph 3(6) of the First Schedule to Act 896 was the same as a manufacturing activity, and pursuant to that wrong assumption, proceeded to wrongfully exercise a discretion to re-characterize the business income of the Respondent. Section 92( 1) of Act 915 provides that: "Subject to subsection (2), in proce under section 41 to 45 or for the recovery of tax un urden of proof is on the taxpayer or person making provisions of the tax law." •o show compliance with the The burden 1s on the Respondent herein to show just cause and it carried out this duty before the High Court w evr it a pealed against the objection decision of the Appellant. We do not agree witli I-ea e Counsel for the Appellant's asse1iion that the Respondent did not vidence at the High Comito show where the Appellant erred in bility of the Respondent. Section 5 8( 4) of the O 15 (Act 896) states that subject to this Act, all activities of a cor as conducted in the course of a single business of that company. In her very detailed judgment, the learned High Court Judge explained how she came to her decision. We are satisfied that she discharged her duty using adequate cviclcncc on the reco ·d, 1elying on sound legal principles and binding cases. IL is trite that an aflpellate Court would only interfere with the exercise of discretion of the Judge of the lower Comi where the Court below applied wrong principles or the conclusion reached would work manifest injustice or that the discretion was exercised on wrong or inadequate material.

p. 15Source page 15In Osei v. Korang [2013) 58 GMJ 1 at 18 Ansah, JSC stated that "the principles upon which an appellate couii will set aside the findings of fact by a t?ial court are well known and summarized in Koglex Ltd. (No 2) v. Field [2000] SCGLR 175 they are: 1. Where the said findings of the trial court are clearly unsup on record; or where the reasons in supp01t of the finflings are unsatisfactory: see Kyiafi v. Wono [1967] GLR 463 at 466; 11. Improper application of a principle of evidence: see Shakur Harihar Buksh v. Shakur Union Parshad (1886) LR 141 A7; or, where the trial court has failed to draw an irresistible conclusion from the eviaence; see Fofie v. Zanyo 1199212 GLR 475 at 490; 111. Where the findings are based on a n of law; see Robins v. National Trust Co. Ltd. [1927] AC was held that where the finding is so based on an e1Toneous prn2osition oJlaw, that if that proposition is corrected, the finding disappears; n 1 v. Where the finding is inco ial documentary evidence on record ... and every appellat uty to make its own independent examination of the record of proceeding ." Applying all the stated lega • the matter herein, we find no basis to disturb the erudite judgm igh Court Judge. The appeal is therefore nn the judgment of the High Comi, Accra, Commercial Divisio 022. (SGD) GEORGINA MENSAH-DATSA (MRS), JA (Justice of Appeal) ~\f\10 "- ~-~'";;;"R- ·. •, REG\S1' . ...••••• ~ p..CC~ _-,:::;:;;.+--"- -1--. ~-c·o~R;·of ""\>~ • cscn) JENNIFER ANNE MYERS AHMED (MRS), JA I agree: (Justice of Appeal)

p. 16Source page 16(SGD) I also agree: COUNSEL: Prof. Abdallah Ali-Nakyea Ph.D Esq. with Bened·ct Asare Esq. for the Appellant /Respondent. Joyce N. Ampah Esq. with Cecilia Boate