Republic v Commissioner-General, Ghana Revenue Authority, Ex parte Cereal Investment Company Ghana Limited

Judgment

p. 1Source page 1IN THE SUPERIOR JUSTICE CRIMINA~oiiT OF JUDICATURE , IN THE HIGH COURT OF 11™ DAY OF OCTO URT 4, HELD IN ACCRA ON TUESDAY, THE l<WASIWOR TASIAM~ER,JUSTilOlCl, BEFORE HER LADYSHIP COMFORT , E OF THE HIGH COURT . SUIT NO,: CR/0568/2021 THE REPUBUC \ VRS. ct:~,i-~,e.o -rr:,:1~l¥ THE COMMISSIONER GEN. , G.R.A \k-Jtw' ... ••···:.~f:.G.\~::oNOENT '-'\G\-1 er iR• n r ()URi EX PARTE: cR1Mlt-1i.1.1 ~ 0 :,,PLE'I C vi coUR ~ EREAL INVESTMENT COMPANY GH tr'D. - APPUCANT RULING Applicant filed this application on the 24/6/2021 seeking the following reliefs: a. Declaration that on a true and proper interpretation of the provisions of Revenue Administration Act, 2016 (Act 915) in particular section 39, the respondent is bound to adjust an assessment in a manner that ensures that the taxpayer is liable for the correct amount of tax and use best judgement and information reasonably available in the ;naking any tax audits/assessments or adjusted assessments or tax reports. b. A declaration that on true and proper interpretation of the provisions of the Revenue Administration Act 2016 (Act 215), in particular section 39 thereof, the respondent did not ensure that the applicant is liable for the correct amount of tax and did not use its best judgement and Information reasonably available in the making, preparing and Issuing the tax audits

p. 2Source page 2. , • ,. or assessments dllll!d 30" November, 2020, 31• Janua,y 2021 and 1~ \ March, 2021 and the said reports were therefore made in breach of its ' statutory obligations under section 39 of Act 915. ' c. A declaration that the respondent breached Artldes 23 and 296 of the Constitution In that It acted unfairly and unreasonably In issuing a tax audit report dated 16111 March, 2021 as a final report without having taken into account Information reasonably available In making its report. d. An order for an injunction to restrain the Respondent from acting on the tax audit report Issued to the applicant on 18th March, 2021 but dated 1611'1 March, 2021 and demanding for any payments under the said tax audit report. e. A declaration that the respondent effectively waived the payment of 3C% • tax liability requirement under section 42(5) of the Revenue Administration Act 2016 (Act 215) when it issued a revised tax audit report following an application by then applicant for a waiver. f. An order for an injunction tD restrain the respondent from acting on the tax audit report issued to the applicant on the 18th March, 2021 but dated 161t1 March, 2021 and demanding for any payments under the said tax audit report until and unless the Independent tax appeals board to be set up under the Revenue Administration Amendment Act 2020 (Act 1029) has been so set up and the applicant has not within 30 days of the date of its establishment filed an appeal with it. ' • g. An order of certiorari to quash the respondent's tax audit report dated 16th March, 2021. ,. Attached to the application is an affidavit In support and Exhibits.

p. 3Source page 3• • ... The re5pondent flied for preliminary legal objection. The ground d objecHon Is as follows: The Applicant failed to comply With the requirement of Rule 6 sub-rule (2) <:I Order 55 of c.I.47. Order 55 rule 6(2) of C.I. 47 states ORDER 55 Rule fi(2) states w ithin fourteen days after filing the notice of application, the applicant shall file such number of copies of the applicant's statement <:I case as the Registrar shall determine setting out fully his arguments and relevant Statutes or decided cases the applicant wishes the court to consider. The issue is: whether or not the Applicant compiled wtth the procedure as enumerated in Order 55? The application was filed on the 24111 June, 2021. Learned Counsel for the Applicant then filed his statement of case on 10"' August, 2021. Looking at the time the application was flied and the time Applicant filed statement of case, surely he did not comply with the rules and procedure under Order 55 rule 6(2) of C.I. 47. The next question I ask is whether or not this non-compliance renders the application incompetent? The law is that Non-compliance with the rules generally do not render an action Incompetent. The Supreme Court has overruled the decision in Heward Mills v. Heward Mills [1992-93] GBR 239 which held that non-compliance with rules of court renders an action incompetent See Boakye V, Tutuyehene [2007-2008) SCGLR 970, GIHOC V. HANNA ASSI [2005-2006) SCGLR 458 GHANA MEDICAL ASSOCIATION (CHRIS ACKMANN-ACKUMMEY, Interested party) [2012] 49 GMJ 26 SC.

p. 4Source page 4Ord r 8 (1) of gh Cou (C v 1 P oced r ) ul , 2004 (CJ .. 47) allo ttl GOU 0 I of n-comp iances · r o undam n I or go to h roo m o s o unsd ction o infinng m n of . In 1 sta eme n of on Hm fund e a ,,on ncompe en . In ng th s, I f Io _ f , Reg,war of th s court d rm n num r o· ooLI,~ tied by th A ppl can . And, n ord r to do -oe to 1s case befor , e court, the pr I m1 na,y ob ·on by rn cou sel for e as overruled. Bu I is t( e a -e courts ave a duty ensure j _· ce is done in cases befor h m and should o I a d be arcum ve ted by mere chnicalities. See the case of Mozama Disco Christo Church v. lehu Aopiah [2010] 27 MLRG 56 at 77. Bae to the issues befo~e this court. SECTIO 42 of Revenue Ad ministration A ct 20 16 [915J sta es: 1. SubJect to a tax law to ttle co trary, a person ho s dissa sfied ith a tax decision that directly affect that. person may lodge an objection to the decision with he CommIss1oner General -ith n thirty days of being notified of the tax decision. 2. A_n obJection to tax decision shall be n riting and state prec·sety the grounds upon which the object is made .. s. an objection against a tax decision shall not be entertain unless the per:son has (a) int.he case of Import duties and taxes, paid all outstanding taxes including the full amount of the tax in dispute; and (b) in the case of

p. 5Source page 5other taxes, paid all outstanding taxes Including thirty percent of the tax In dispute. (6) Despite sub section (5) the Commissioner General may waive, vary or suspend the requirement of sub section (5) pending the determlnatJon of the objection or take any other actlon that the Commissioner General considers appropriate lndudlng the deposit of security. 43(1) states a~er consideration of an objectlon the Commissioner General may vary the tax decision In wh ole or In part. SECTION 39(1) of the Revenue Adm inistration Act, 2016 states; (1) The Commiss ioner General may adjust an assessment In a manner that ensures that the tax-payer Is /lable for the correct amount of tax in the circumstances to which the assessment relate. (2) The Commissioner General shall use best judgment and information reasonable available In making an adjusted assessment. Learned Counsel for the Respondent submitted that, Applicant did not follow the dispute resolution mechani sms set out In the Revenue AdministraUon Ad, 2016(Act 915). 1e argued that, Section 44 of Act 915 states that; ectlon 44 ( 1) states "A person who is dissatisfied with a decision of the ommlssloner General may, within thirty days appeal against the decision to e Independent Tax Appeals Boards referred to In this Act as "The Appeals Jard" as set out In the Fourth Schedule. (2) A person who Is dissatisfied with

p. 6Source page 6the decision of th Appeals Board ma y appeal ogalnst the ded on to the Court w hin thirty days from the date t, e deos1on was served on the person.# Also, that rule l ,of Order 54 o th a 4 7 states: 'Where n any enactment provision ,s made for an appeal to be ma d to the H igh Court against a decision or order of the Comm1ss on r, the provisions ,:,f this Order shall apply to the appeal'. Section 41 of the Revenu Adm inistration Act. 2016 deflnes a tax decision to mean "tax decisions ( 1) A "tax decision ls a decis on made by the Com m issioner G eneral under a tax law lnduding an assessm ent or om ission but does not lnclude ... A :t 915 defines the court as the High Court. I,~ the case before m e, the App licant was served w ith the tax assessment w h ch Is the decision of the Co m m issioner General. This is in line with section 39 of Act 9'15. The Commi ssioner is bound by law to use best judgement In assessing a tax-payer. Assuming The C-0mm issloner did not use his best Judgement, the Tax-payer is urged to raise an objection. By Section 42 of Act 915, the Tax­ payer is enjoined to pay all taxes and or 30% of the Tax in dispute. Applicant did not show proof of any payment. Hov.ever, the law also allows the Comm issioner General to wa ive the payment and deal with the objection . . There Js no evidence that the 30% tax payment but it is on record that the Commissioner General waived the payment of the 30% and fairty heard the objection of the Applicant .. Applicant was not satisfied with the decision taken by the Commissioner General w ith respect to its objection. He therefore flied this motion of certiorari to quash the decision of the Commissioner-General.

p. 7Source page 7Section 44(l) of act 915 states "A person who Is dissatisfied with a decision of the Commissione G r eneral may within thirty days appeal against the decision to the Independ t T en ax Appeals Board referred to In this Act as 'Toe Appeals Board" as set 1 out n the Fourth Schedule. Section 44(2) states "a person who is di5Satisfred with the decision of the Appeals Board may appeal against the decision to the court within thirty days from the date the decision was served on the person.[S. 44 substituted by section l of act No. 1029 of 2022}. I think with this, the Applicant has jumped the step of appealing to Tax Appeals Board by coming to High Court herein. Learned counsel for the Respondent subm itted that, in the case of BOYEFIO V . NTHC PROPERTIES (1996-971 SCGLR 531. Where it was stated that " ... the law is clear that where an enactment has prescribed a special procedure by w hich something is to be done, it is that procedure alone that has to be followed." Also, in the case of Republic vs. High Court (Fast Track Division); Ex-parte National Lottery Authority (Ghana Lotto Operators Association &. Others Interested Parties) (2009) SCGLR 390, Justice (Mrs.) Dordzie JSC held "No judge has authority to grant immunity to a party from the consequences of breaching an Act of Parliament ... The judicial oath enjoins judges to uphold the law, rather than condoning breaches of Acts of Parliament by their orders. "See also the case of REPUB U C VS. THE HIGH COURT, SEKONDI EX PARTE: NANA BRAFO DADZIE 11 EBUSUAPANYIN S.K. OBENG & 3 ORS [2021] DLSC 10812 at page 9 per Kulendi. The Revenue Administration Act is the 91stt1 Act of Parliame nt assented to 011 the 1ot11 day of August, 2016. This court cannot condone the illegallty o

p. 8Source page 8e procedure a d do n in e ct to d 1 1 h n n. I s ere ore my Jud m n pl can did o I d do Nn procedu und r R nu i~ on ct, 20 6 ore e,c,o,E nd G,. . a ., reHe s A-E a G aie oom ng to cou hen by d,sm·s~ ... t.U"'I .... ' tt r·e:%~ d n F h ch s or ' or~ r or an nju on to restra n It 8 a on Am h reby ordered ,.., ... -.. th n o e mon h from · o . o he App ican. ~ Order as o cost. x ud r:..po . ssued to ap rcan on " 2020 rd 1029) s 1d aud1 R po d nt puts an p ace Tax Appeals Board October, 2022 to deal i e ta ss es (SGD) COMFORT KWASIWOR TASIAME (JUSTICE OF T E HIGH COURT) COUNSEL : KWEKU EYIAH HOLDING RIEF FOR MARIAN EKUA HAYFRON-BENJAMIN FOR THE APPUCA 1 NT - PRESENT DAVID SOWAH KPOBI HOLDING BRIEF FOR MAXWELL OWUSU BOADI FOR THE RESPONDENT - PRESENT REFERENCE • BOAKYE V. TUTUYEHENE [2007-2008] SCGLR 970. • GIHOC V. HANNA ASSI (2005-2006] SCGLR 458

p. 9Source page 9• GHANA MEDICAL INTEREST ASSOCIATION (CHRIS ACKMANN -ACKUMMEY ED PARTY) [2012) 49 GMJ 26 S C . • MOZAMA DISCO CHRI ST O CHURCH V . JEHU APPIAH (201.0) 27 MLRG 56 AT 77. • BOYEFIO V. NTHC PROPERTIES (1996-97) SCGLR 531 . • REPUBUC VS. THE H :iGH COURT , SEKONDl EX PARTE~ Nt.NA BRAFO DADZIE 11 EBUSUAPANYIN S .K . OBENG &. 3 ORS {.2021.1 DLSC 10812.