NATIONAL FOODS LIMITED v ZIMBABWE REVENUE AUTHORITY (380 of 2025) [2025] ZWHHC 380 (8 July 2025)

17 HH 380-25 ITC 4/22 NATIONAL FOODS LIMITED versus ZIMBABWE REVENUE AUTHORITY SPECIAL COURT FOR INCOME TAX APPEALS CHILIMBE J HARARE 22 November 2024 & 8 July 2025 _M. Tshuma_ with _T. Makanga_ for appellant _C.Makorokotera_ with _M. Sinyoro_ for respondent CHILIMBE J INTRODUCTION [1] Taking two leaps per chasm is untenable. That -in my view -was the Supreme Court`s guidance when it ruled, in _Nestle Zimbabwe (Pvt) Ltd v Zimbabwe Revenue Authority_ SC 148-211, that a tax assessment cannot be issued subject to a further audit. An assessment must be final. [2] Based on the same principle of finality of an assessment, appellant raised a point _in limine_ in this appeal noted in terms of s 65 of the Income Tax Act [_Chapter. 23:06_] (“the Act”). The appeal protested the dismissal by the Commissioner General (“Commissioner”) on 29 June 2022, of appellant`s objection to audit findings and assessments. [3] The following amounts were assessed as appellant`s tax obligation ;-(i) income tax at US$3,317,132.23 and ZWL592,226,753.97; non-resident tax on fees in the sum of ZWL386,219,563.52 and non-resident shareholder tax in the sum of ZWL315,700,080.90, for the period 2014 to 2021 and a penalty of 20% for the purported overdue income tax and withholding tax. THE POINT _IN LIMINE_ [4] In brief, appellant contends that respondent, having issued its first set of tax assessments in September 2021, was precluded by law from rendering additional assessments for the same tax period, in March 2022. Or alternatively, that in issuing the second set of assessments, respondent did not observe the conditions in the Act pre-requisite to the such amendment. [5] On the same point, appellant accused respondent of failing to (a) furnish the empowering provision in the Act in terms of which the subsequent assessments had been issued, (b) state the reasons for such issuance and (c) stipulate the its taxpayer`s procedural rights. [6] The respondent`s answer to the point _in limine_ was simple. It averred that having issued the initial set of assessments in September 2021, appellant filed no objection but requested further engagement. The resultant consultations disclosed additional inconsistencies which necessitated issuance of revised or additional assessments in March 2022. [7] Respondent contended that it was sufficiently empowered by the law, as a revenue collector, to take all measures necessary to obtain the taxpayer`s compliance with its obligations. This latitude included the right to re-issue, as often as mandate demanded, additional tax assessments. The assessments also complied in form, nature and substance, with the statutory requirements of a valid assessment. [8] Before turning to the above arguments in greater detail, I will set out the background to this dispute as such is essential to the determination of the point concerned. It is important to draw attention to the fact that this point _in limine_ was argued as a point of law based on the facts set out in the statement of agreed facts forming part of a near-thousand-page long bundle. THE DISPUTE [9] I will refer to the parties as “NFL” (appellant), “Zimra” (respondent) and “Commissioner” for Zimra`s Commissioner General. NFL is an entity registered in terms of the laws of Zimbabwe. It is involved in maize and flour milling; manufacture of various foodstuffs such as breakfast cereals, snacks, and biscuits; stockfeed as well as the pre-packaging and distribution of dry groceries. NFL is a wholly owned subsidiary of National Foods Holdings Limited (NFHL). [10] NFHL itself being part of a bigger conglomerate-Innscor Africa Limited (IAL) listed on the Zimbabwe Stock Exchanged (ZSE). Two entities in the IAL group-Tiger Brands Limited (Tiger Brands) and Afrigrain Trading (Afrigrain)are relevant to the disposal of this dispute. [11] Zimra is a statutory authority established in terms of the Revenue Authority Act [Chapter 23:11] tasked with assessment, collection and enforcement of the payment of taxes leviable under the Income Tax Act [_Chapter. 23:06_] [ “the Act”]. In discharge of such functions, Zimra employs the following processes based on the Act; - 1. Due to a number of reasons which include limitations in capacity and resources, Zimra relies on the self-assessment by the taxpayer to calculate taxable income and income tax in terms of s 37A on the Act. 2. The objective being to place a legal obligation on the taxpayer to calculate and remit to Zimra, the income tax due on net income receded. 3. The self-assessment returns submitted to Zimra in that regard may be subject to an investigation or audit by the authority. These audits may result in adjustment of self-assessments to ensure that tax is payable in compliance with the Act 4. The audit being a verification process in terms of which Zimra engages the taxpayer during an examining covering a number of issues or considerations pursuant to the self-assessment return. The engagement process is designed to accord the parties a proper opportunity to fully address queries or matters arising via written or oral consultations. 5. After the audit, Zimra issues a final position in the form of assessments. The taxpayer is granted a period of 30 days within which to file an objection. This objection must be determined within a period of 3 months. 6. Once the period of 3 months elapses, the objection is deemed to have been disallowed unless a response is issued. In such event, the assessment becomes final. THE SELF-ASSESSMENTS [12] Based on the above framework, NFL submitted, income tax self-assessment returns for the tax years 2014 to 2021.An amount of USD20 742 486.62; ZWL1 201 408 418.04 and USD/ZWL23 023 166.16 was paid in tax during the period. The self-assessment was subjected to an audit which saw Zimra identify what it considered inconsistencies in the tax payments arising from the following matters; - 1. The shareholding, corporate structure and IAL Group relationships in the conduct of business and generation of income by NFL. 2. The business model, market share, procurement structure and management arrangements between NFL and its siblings Tiger Brands and Afrigrain. These were expressed under 3 agreements namely; 1. A Service Level Agreement (SLA) with IAL for the provision of Management Services, 2. A Technical Agreement with Tiger Brands for provision of technical Information and; - 3. Agreements with Afrigrain Trading Limited (Afrigrain) for the sale and purchase of commodities. 3. The management, technical and procurement fees paid under these agreements were disallowed for reasons furnished to NFL. 4. The trading revenues generated by NFL in foreign currency which Appellant is liable to pay tax in foreign currency for the years of assessment 2019 and 2020 as section 4A(1)(c) of the Finance Act [Chapter 23:04] (_“the Finance Act”_) obliges the taxpayer to pay tax in foreign currency on the taxable income it generates in that currency. COMMUNICATION BETWEEN THE PARTIES [13] Zimra`s findings were communicated to NFL on 13 April 2021 via a letter addressed by the Head International Taxation-L. Takawira- to NFL`s Public Officer, Mr.L. Nyandoro. The letter, -captioned **“Review of Tax Matters National Foods Limited :2014-2018”-** contained the following phrase in its final paragraph; - “ _Please note that amended assessments will only be issued to you after we have conclusively dealt with all the issues_ …” [14] The above letter was followed by further exchanges of letters amidst a series of meetings between the parties during year 2021. The same engagements spilled over into 2022. On 2 March 2022, L. Takawira communicated Zimra`s findings, principally on the issues outlined in paragraph _[12]_ above, under cover of a letter referenced: **\- “National Foods Limited: Tax Matters 2014-2021”.** [15] Two days later on 4 March 2022, L. Takawira wrote another letter with the same subject title to NFL`s Public Officer. Takawira referred, and attached -to the latter correspondence - (a) Income Tax, (b) Non-Resident`s Tax on Fees, and (c) Non-Resident Shareholder`s Tax assessments. [16] Zimra issued the assessments stipulated in paragraph _[3]_ above. [17] NFL`s legal practitioners (also of record) responded to the 2 letters from Zimra on 1 April 2022. This letter constituted NFL`s formal objection to Zimra`s tax audit findings. It was a detailed commentary on the matters raised by the tax authority. For purposes of this point _in limine_ , I draw attention to the following issues raised by Mr Manikai, the author of that letter; - 1. _Paragraph 2_ “We refer to your letters of 2 March 2022 and 4 March 2022 respectively and to the Income Tax assessments for the 2014 to 2020 years of assessment being Assessment Number 799,800,801,802,803,804,805,806 and 807 (“the assessments”) and to Schedules of Withholding Tax due in respect of the years 2014 to 2021, both issued on 4 March 2022.” 2. _Paragraph 4_ “It is placed on record that prior to the issuing of the above assessments; 4.1 On the 17th of September 2021 ZIMRA issued three (3) USD assessments for the tax years 2019,2020 and 2021 being Assessments No.1224884,1224885 and 1224886 respectively. We are not certain if these assessments were cancelled by ZIMRA as they were not quoted in the amended Assessments Nos 805 and 807 for 2019 and 2020 tax years. 3. 4.2 On the 30th September 2021, ZIMRA issued twelve (12) assessments for withholding tax for the months June 2020 to July 2021 being assessments number 122152 to 152163.Equally, we are not certain if these assessments were cancelled by ZIMRA. 4. 4.3 This objection pertains to and refers to the Assessments set out in paragraph 2 above, ……. To the extent to which prior assessments set out in paragraph 4 are reposted or amended by those in paragraph 2, then the objection is to be read as contesting these as well.” [18] In its written submissions filed in support of the herein point _in limine_ , NFL`s counsel took the above queries further. He argued that in fact, an objection was filed after Zimra issued the September 2021 assessments. As will be seen shortly, the determination of this point _in limine_ turns on whether or not indeed an objection was filed as claimed. I set out the contention in the written submission below; - _Paragraph 1 of letter dated 28 October 2022 addressed to Zimra by NFL attached to the said written submissions; -_ First Objection filed by NatFoods to the Commissioner General (“Commissioner” or “CG”) dated 15 October 2021 relating to USD tax assessments and difference in the parties interpretation of the relevant laws, being the Charging Act and Taxes Act. [19] I will return to the above issues. Meanwhile, Zimra responded to NFL`s 1 April 2022 objection by a letter dated 29 June 2022 from its Acting Commissioner-Revenue Assurance, Mr E.D. Phiri. The questions raised in paragraph 4 of Mr Manikai`s letter of 1 April 2022 quoted above received no comment. Similarly, Zimra sustained this muteness in the papers herein stating in paragraph 1.25 of its Commissioner`s Case2 that; - “The investigation results letters were sent to the Appellant on 02 March and 04 March 2022 by letters of even date which were accompanied by income tax manual assessments for 2014 to 2020 tax years being assessment numbers 799,800,801,802,803,804,805,806 and 807 as well as Schedules of Withholding Taxes due in respect of the 2014 to 2021 years of assessment.” [20] That aside, Zimra disallowed the issues raised in NFL`s objection, apart from the sixth ground relating to the application of section 16(1)(r) and 26 of the Act for the period prior to January 2017. I set out in paraphrase below, the heads addressed in detail in Mr. Phiri`s determination: - 1. Contestation of the finding directing payment of tax in foreign currency, 2. Averment that the foreign currency tax obligation was settled through payment of an equivalent amount in local currency, 3. Protest that the finding was based on a retrospective application of the law, 4. Finding on the Service Level Agreement on Management Fees, 5. Finding on Technical Fees under the Technical Agreement, 6. Disallowances under the Global Purchase and Sale Agreement, 7. Protest that the finding entailed invoking inapplicable provisions of the Act, 8. Failure to advert to s 98 of the Act before invoking the provisions of s 16(1) (r) /26 of the Act, 9. Inconsistencies in the application of tax principles, including inaccurate computations and erroneous interpretations, 10. Failure to furnish justification for reopening the 2014 tax assessment given the requirements prescribed in s 47 (1) (2) of the Act that additional assessments must be triggered by fraud, misrepresentation or wilful non-disclosure of material facts, 11. Challenge to the 20% tax penalty imposed. [21] Aggrieved by the determination, the NFL raised 17 grounds in its appeal to this court. The said grounds of appeal related to the issues addressed by Mr Phiri in his determination. These being the same matters traversed by the parties during the returns, assessments, and engagements. THE IMPUGNED 4 MARCH 2022 ASSESSMENTS [22] Mr _Tshuma_ for NFL articulated the point _in limine_ as follows; -the 4 March 2022 assessments founding the present appeal were invalid at law. It was a settled position at law in this jurisdiction, submitted counsel, that for a court to exercise jurisdiction over an appeal brought in terms of s 65 of the Act, the assessments concerned must have been validly issued. [23] It was also important to recognise, argued counsel, that the Act empowered Zimra to issue assessments under different circumstances. Section 45 dealt with estimated assessments, s 46 additional tax in the event of a default or omission, s 47 additional assessments as envisaged herein, s 48 reduced assessments and s 49 or assessments in the event of loss. It was important therefore, submitted Mr _Tshuma_ , that the circumstances, statutory provision and requirements pertinent to a particular assessment be clearly stipulated. [24] As regards assessments issued in terms of s 47 (1), Zimra had to overcome the hurdle set out in s 62 (4). This provision fixed a 3-month window for the tax authority to respond to an objection. Once such period elapsed, the objection was deemed to have been disallowed. That position rendered the assessments concerned final. [25] In the present matter, Zimra issued the September 2021 assessments but rendered no determination after NFL lodged an objection. This outcome rendered Zimra _functus officio_. It became barred from dealing with the objection in any manner, shape or form. It could neither revoke, amend, correct, adjust, reduce nor alter the September 2021 assessments. For that reason, the 4 March 2022 assessment were improperly issued and irredeemably invalid. [26] Mr _Tshuma_ further attacked the very assessments themselves arguing that they did not indicate _ex facie_ , the provisions in terms of which they had been issued. Such information was necessary to enable the taxpayer determine if and how to respond/object. Additionally, the March 2022 batch of assessments comprised of 2 sets; -those marked “original” and those endorsed “amended”. [27] These endorsements-in both instances- constituted additional grounds of invalidity. Firstly, the lot marked “original” was rendered invalid because Zimra had issued similar assessments under the September 2021 batch. As such, the March 2022 assessments could not in any manner stand as original. The earlier assessments (i)had not been revoked, or (ii) if Zimra had attempted to do so, had not revoked them entirely3. [28] Secondly, the assessments had in any event, been rendered final under the 3-month window prescribed under the proviso to s 64 (4) (b). As for the lot marked “amended”, Zimra could not resort to that facility without issuing a determination to the objection lodged against the September 2021 assessments. In the same respect, it ought to have satisfied the requirements of s 47 by outlining the basis of re-intervention. [29] As a further criticism, Mr _Tshuma_ submitted that the assessments did not, on the face of it, inform the taxpayer the reasons of Zimra`s assessments. Neither did Zimra stipulate on the face of the assessments concerned, the relevant provision under which they had been issued. This omission infringed the procedural rights afforded to taxpayers as much as it offended the obligation to act in strict compliance with statute [ see _Sabeta v Commissioner General Zimra_ HH 79-12]. [30] A taxpayer must be provided with reasons -including the provision in terms of which they have been assessed as this impacted the objection and nature thereof. This question-argued counsel-had arisen in _Zimra v Nestle_ where the court asked Zimra what provision it had relied on in issuing the additional assessments as such fact was not indicated anywhere on the face of the assessment. This, submitted counsel, was precisely the position with the assessments in casu. [31] There were assessments marked “amended” yet lacked previous assessment numbers. [example at record page 270] Further, Zimra had issued a swathe of schedules instead of proper assessments [at record page 272]. This attempt suggested that the schedules had been issued in terms of s 26 rather than s 47 of the Act. Yet in September 2021, Zimra had issued additional assessments for this obligation. [32] Mr. _Tshuma_ submitted that the assessments did not comply with the statutory definition applicable at the time of issue. Alive to the fact that it could not issue assessments for withholding tax, Zimra had instead elected to issue schedules. In essence, counsel`s argument was that the assessments purportedly issued in March 2022 were all invalid. He relied in the main, on the Supreme Court authority of _Nestle Zimbabwe v ZIMRA_ [“SC 148-21”]. I will revert shortly to this authority and its import. [33] Mr _Makorokotera_ for Zimra, contested the conclusion that Zimra became _functus officio_ once it issued the September 2021 assessment. Such a view would effectively stymie Zimra in the exercise of its statutory function on revenue collection. The Act permitted Zimra, in terms of 47 (1) of the Act to issue additional assessments. This provision stated thus; - _47 Additional assessments_ (1) If the Commissioner, having made an assessment on any taxpayer, later considers that— (a) an amount of taxable income which should have been charged to tax has not been charged to tax; or (b) in the determination of an assessed loss— (i) an amount of income which should have been taken into account has not been taken into ac-count; or (ii) an amount has been allowed as a deduction from income which should not have been allowed; or (c) any sum granted by way of a credit should not have been granted; he shall adjust such assessment so as to charge to tax such amount of taxable income or to reduce such assessed loss or to withdraw or vary such credit, and if any tax is due either additionally, or alternatively, call upon the taxpayer to pay the correct amount of tax: Provided that— (i) no such adjustments or call upon the taxpayer shall be made if the assessment was made in accordance with the practice generally prevailing at the time the assessment was made; (ii) subject to proviso (i), no such adjustment or call upon the taxpayer shall be made after six years from the end of the relevant year of assessment, unless the Commissioner is satisfied that the adjustment or call is necessary as a result of fraud, misrepresentation or wilful non-disclosure of facts, in which case the adjustment or call may be made at any time thereafter; (iii)the powers conferred by this subsection shall not be construed so as to permit the Commissioner to vary any decision made by him in terms of subsection (4) of section _sixty-two_. [34] Mr _Makorokotera_ proffered a further argument. Firstly, in his written submissions, counsel suggested, if I understood him correctly, that the first batch of assessments had drawn no objection from NFL. I set out below, counsel`s remarks in that regard; - _Paragraph 35 of Zimra`s written submissions_ “The Jurisdiction of the Respondent had not been ousted by anything. The income that had been omitted in the previous assessments had not been omitted as a result of a practice generally prevailing. The tax years under review were not yet prescribed **and finally no objection had been filed as of that time so there was no decision on an objection in terms of section 62(4) that had been made by that time**. Respondent was well within its rights therefore to issue the Assessments in question.” [35] He explained, during his oral submissions, that following the issuance of the September 2021 assessments, the parties had mutually agreed to obviate the filing and determination of an objection. They instead resolved to engage in extended consultations over the contentious issues. This process led to the Zimra discovering further anomalies which warranted a revision of the assessments in terms of s 47 of the Act. [36] And so Zimra proceeded to issue revised or additional assessments in terms of s 47 under cover of the two letters dated 2 and 4 March 2022.These being the letters which invited the Manikai objection of 1 April 2022. The objection confirms, argued Mr _Makorokotera_ , that prior to that date, none had been filed- contrary to the averment by Mr _Tshuma._ [37] Effectively, after the September 2021 assessments, there was no objection before the Commissioner which called for a response. It was counsel`s further submission that NFL filed a request that parties engage for purposes of reconsideration of tax issues followed by the withdrawal of the 2021 objection. [38] He argued that in any event, the so-called objection to the September 2021 assessments had not been placed before the court. On that basis, the Commissioner, being empowered by s 47 of the Act, had merely exercised that right. Accordingly, in the absence of an objection and determination thereof, the Commissioner was not rendered _functus officio_. [39] Mr _Makorokotera_ argued that Zimra correctly can resort to s 47 (1) (a) (b) and (c) of the Act where it discovers that there was income that had not been subjected to tax and required to be properly treated via an adjustment to the assessment. Counsel recognised that in seeking to proceed in terms of s 47 of the Act, Zimra was alive to the limitations imposed by s 62 (4) as read with the proviso to s 47. Such limitations were inapplicable and thus the March 2022 assessments were validly issued. [40] Mr._Makorokotera_ urged the court to disregard the attacks by counsel for NFL that the assessments were insufficiently worded, prefaced and informed. The assessments contained the relevant information prescribed by s 2 as read with s 51 of the Act. The assessments under consideration were of the same nature and import as the ones in contention in _Delta v Zimra_ SC 62-24 where the Supreme Court prescribed the essentials of a valid assessment as follows at page 16; - “The aforementioned authority [ _Barclays Bank of Zimbabwe Limited_ v _ZIMRA_ 2004(2) ZLR 151 (H) at 151 C-E] explains what a valid assessment contains. If a notice of assessment complies with the requirements set out above, it is valid. In the present case, the Notices of Assessment contained the following: 1. The appellant’s taxable income; 2. The credits to which the appellant is entitled to; 3. Tax payable by the appellant; 4. A notice that any objection to the assessment must be lodged within 30 days. It is therefore apparent that the validity of a notice of assessment does not depend on the minute details of the internal wording of the notice.” [41] The definition of a valid assessment referred to in _Delta v Zimra_ (supra) was set out as follows in _Barclays_ _Bank of Zimbabwe Limited_ v _ZIMRA_ at 151 C-E, as follows; - “It is clear from the definition section that an assessment should determine and contain (i)income and (ii) credits to which a person is entitled. This is not disputed by the respondent. In para 6 of its Heads of Argument the respondent clearly laid out the requirements of an assessment. In addition, in terms of s 51 of the Act, a notice of assessment should be issued whenever an assessment is carried out. Among other things s 51 of the Act stipulates the following: (i)Section 51 (2) – a notice of assessment and of the amount of tax payable shall be given to the tax payer. (ii)Section 51(3) – the commissioner shall give the taxpayer notice that any objection to the assessment shall be sent to the commissioner within 30 days after the date of such notice.” On close scrutiny of annexure, A, it is apparent that it states the taxable income and credits to which the applicant is entitled. Annexure A contains the sums due to the respondent in the form of taxes, penalties and interest. A correct description of a notice and the inclusion in the notice of the key requirements of a notice specified in ss 2 and 51 (2) of the ITA validates the notice. Sections 2, 51 (2) of ITA and s 31 (5) of VATA do not concern themselves with the, details which can be found in a notice other than the specified aspects.” [42] The basis of the assessments was set out in the covering letter of 12 May 2022 by Zimra to NFL. This satisfied the requirements of s 37A (1) (13) to furnish a statement of the reasons behind the issuance of such assessment. As regards the schedules on withholding tax Mr _Makorokotera_ submitted that it sufficed for Zimra to issues the assessments in that format. The reason being that there was need to raise neither a deduction nor credit. [43] Counsel took the view that the decision of SC 148-21 was distinguishable from the present matter. The critical distinction being that in SC 148-21 an objection was lodged leading to a determination. Herein, the September 2021 assessments had not been met by a determination. Further, in SC 148-21 _,_ the assessments were issued “subject to audit” which tainted their definitiveness and rendered them invalid. THE LAW [44] It is also appropriate to recall the Supreme Court`s guidance in _Zimbabwe Revenue Authority v Triangle Limited_ SC 59-23, where MATHONSI JA retraced briefly the key principles of tax law and legislation. The learned Judge of Appeal observed as follows during a survey of the applicable authorities [ at pages 10-11]; - “Therefore, it becomes manifestly clear that _the court a quo, and indeed this Court, exercise jurisdiction in order to simply uphold the meaning of the fiscal legislation in question._ The approach is laid down in _Commissioner of Taxes_ v _C W (Pvt) Ltd_ 1989 (3) ZLR 361 (SC) at 372 that: “Generally speaking, where taxation is concerned, it has to be acknowledged that justice and equity have little significance. _If the language of the statute is plain the court must give effect to it, even if the result to the taxpayer is harsh and unfair_.” [_the underlining is for emphasis_] The learned authors C Whitehouse and E Stuart-Buttle in _Revenue Law–Principles and Practice_ , 6 ed (1988), at p 3 make a pertinent observation about tax legislation. They state: “ _Fiscal legislation is complex and detailed. In part this is inevitable since, above all, tax legislation should be certain: persons should know whether they are or are not subject to tax or duty on a particular transaction or sum of money_. ... In a famous passage, Rowlatt J in _Cape Brandy Syndicate v IRC_(1921) expressed this rule as follows: ‘...It is urged... that in a taxing Act clear words are necessary in order to tax the subject. Too wide and fanciful a construction is often sought to be given to that maxim, which does not mean that words are to be unduly restricted against the Crown, or that or that there is to be any discrimination against the Crown in those Acts. _It simply means that in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing to be read in, nothing to be implied. One can only look fairly at the language used...’”_ Certainty is the lifeblood of tax law. Taxpayers are entitled to know exactly what taxes they must pay and how those taxes are computed. One of the means by which certainty is achieved in tax law is by bestowing to words used in fiscal legislation, their clear grammatical meaning.” [ _Italicised for emphasis_] [45] Against that guidance, I commence with the question whether the point _in limine_ is potentially dispositive of the matter. My response is in the affirmative. The position is settled in this jurisdiction that an invalid assessment generates no basis to invite the court`s jurisdiction (See SC 148-21). [46] Similar questions on the propriety of raising as a _in limine_ as well as validity of an assessment were subject of the court`s attention in _Zimbabwe Revenue Authority v Nestle Zimbabwe (Pvt)(Ltd)_ SC 70-24 [ “ _Zimra v Nestle_ ”]. The Supreme Court, per MUSAKWA JA, held that the validity of an assessment could be properly raised as a point in limine because it was potentially dispositive of a dispute. [47] The learned Judge of Appeal referred with approval to the earlier decision of SC 148-21, and quoted, at page 5, the below observation in _Zimbabwe Revenue Authority v Triangle Limited_ (supra) [ at page 11] that; - “Given the principles upon which tax law subsists such as strict adherence to fiscal legislation and the principle of certainty, _the consequences of the invalidity of an assessment are fairly obvious. The moment an assessment fails to comply with the law, it is a nullity.”_[ Underlined for emphasis] [48] In SC 148-21, MAKONI JA expressed the position at page 11in the following terms that; “In view of the above _the assessments are null and void as they were issued contrary to the requirements of the Act. They were a nullity and cannot create any obligation to pay tax. What this means is that there were no proper assessments for the court a_ __quo__ _to relate to. Consequently, there is no proper appeal before this court_.” [ Underlined for emphasis] [49]. This authority has been followed in numerous decisions in the jurisdiction apart from _Zimra v Nestle_ (supra) In _Zimra v Triangle_ MATHONSI JA recast the principle behind the effect of an invalid tax assessment as follows at page 11; - “This case concerns compliance with the law regulating the issuance of assessments and the validity of the additional assessments that were issued by the appellant. _In no uncertain terms, the Act provides for what the law considers to be an assessment_. In terms of s 2 thereof, “assessment” means “(a) the determination of taxable income and of the credits to which a person is entitled in terms of the charging Act; or (b) the determination of an assessed loss ranking for deduction; and includes a self-assessment in terms of section thirty-seven A”. Section 51 of the Act also provides for assessments and the recording thereof. Assessments must be made by the Commissioner or under his direction. _There must be notice to the taxpayer of the assessment_ and, if applicable, of the amount of tax payable. In the notice of assessment, _the Commissioner is required to give notice to the taxpayer that any objection must be sent to him within thirty days of such notice_. See in general _Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority_ 2004 (2) ZLR 151 (H). **The need for any assessment to be valid has, of late, been emphasised by this Court consistently**. For good measure, the position was given befitting recognition in the fairly recent case of _Nestle Zimbabwe (Pvt) Ltd v Zimbabwe Revenue Authority_ SC 148–21.” [ Underlined and bolded for emphasis] [50] See also _Paper hole Investments (Pvt) Ltd v Zimbabwe Revenue Authority & 2 Ors_ HH 149-24 and DUBE JP`s remarks in _JK Motors (Pvt) Ltd v Zimbabwe Revenue Authority_ HH 762-22; - “ _10._ _The courts have already pronounced that an assessment must be issued in terms of the law and that where it is a nullity, it cannot create any obligation to pay tax, its existence being paramount before it can be challenged by way of objection or appeal_ , see the _Nestle_ v _ZIMRA_ SC 148-21;_TL_ v _ZIMRA_ HH 413-20, _Barclays Bank of Zimbabwe_ v _ZIMRA_ HH _2004 (2) ZLR 151 (H)._ [ Underlined for emphasis] [51] The above cited authorities state the position with clarity. If the assessments are ruled invalid, the matter ends there. The point _in limine_ as stated, devolved to one key aspect; - did NFL file an objection to the September 2021 assessments? If it did, what then was its effect on the subsequent or March 2022 assessments? [52] Mr _Makorokotera_ , argued that no objection was filed. Mr _Tshuma_ took a different view. Each counsel stood firm in his respective conviction on that point. But none took the trouble to resolve the matter with ease; Mr _Tshuma_ could have availed the objection itself, and Mr _Makorokotera_ could have delivered, unequivocal written confirmation from the tax authority that none was filed. [53] I need not resolve the question of whether an objection was filed to the September 2021 assessments. For the simple reason that I am not placed, given the matter being argued, to do so. In the absence of evidence, there is no way in which the contestation can be offset. The statement of agreed facts did not advert to this aspect. Which means that there is a dispute of fact on a critical aspect of the matter. It may be cured either by the parties redrawing their statement, or leading evidence. [54] This issue brings to fore the position articulated in _Triangle v Delta_ and _Sabeta v Commissioner General Zimra_ (Supra) to the effect that there must be certainty in tax law, and that a tax authority must act within the strict, straight and narrow of the applicable legislation. It would have greatly assisted matters had Zimra placed on record the non-receipt of an objection. [55] The precision required in tax matters stated in the authorities cited above would require that evidence be placed before the court to confirm that the objection was indeed lodged. It must be recalled that an objection is a statutory measure whose compliance-in form and nature-must satisfy the requirements of a valid objection set out in s 62 (1) to (3) of the Act. [56] The same principle applies to the other side of the same argument. Namely the contention by Mr. _Makorokotera_ that because a request for re-engagement rather than an objection was received after September 2021, Zimra resorted to s 147 of the Act in issuing re-assessments. Apart from the batch of letters (inconclusive on the point) on record, there is nothing to demonstrate that Zimra proceeded in terms of the provision concerned. [57] Again, neither the statement of agreed facts nor the respondent`s case herein advert to that procedure having been taken. The simplest Zimra could have done, as indicated in _Sabeta v Commissioner General Zimra_ , was to produce a letter which recorded that following further engagement, re-assessments would be conducted in terms of s 47 of the Act. [58] Such statement could have been inserted in the letters of 2 and 4 March 2022 addressed by Zimra to NFL. My conclusion therefore is that I cannot again, make a finding at this stage that the assessments of 4 March 2022 were a consequence of a s 47 amendment. As that finding, as noted above, reverts to the unresolved question of whether or not an objection was filed. The two aspects or are inseparable. [59] Having said that, I proceed to examine Mr. _Tshuma_ ’s alternative arguments attacking the _ex facie_ validity of the assessments. I believe this argument remains relevant despite my views on the objection and its consequence above. Because if Zimra issued assessments that are afflicted by incurable defects _ex facie_ , such assessments would still stand as invalid whether or not they were issued under the correct provision of the Act. The matter would end there. [60] Mr _Makorokotera,_ in defence of the _ex facie_ validity of the assessments, sought to rely on the decision of _Delta v Zimra_ [ see paragraph _[38]_ above] on the essentials of a valid assessment. But with respect to counsel, his argument that the procedural rights could be communicated to a taxpayer under a covering letter were not sustainable. The Supreme Court has been consistent on the need to accord the taxpayer its procedural rights stipulated as follows in s 51 (3) of the Act that; - 51(3) The Commissioner **shall** , **in the notice of assessment** , **give notice to the taxpayer** that any objection to the assessment must be sent to him within thirty days after the date of such notice. [61] There are 3 requirements issuing from the above provision. First, the Commissioner must comply. Second, and in the notice of assessment itself, and third, stipulate the taxpayer`s procedural rights. This provision was further elaborated as follows in _Barclays Bank v Zimra_ at page 154; - “In addition, s 51 _requires the taxpayer to be given due notice of the assessment and the tax payable_ _**in the manner stipulated in that section**_. There should be no doubt as to whether the document sent by the Commissioner to a tax payer is an assessment in view of the taxpayer’s right to object within 30 days. Annexure A is not headed “Notice of assessment” nor “assessment” and _does not give 30 days’ notice for objection as is required by the Act_. Further, the document cannot be said to constitute an assessment as it falls short of the definition of assessment in terms of s 2 of the Act. In the process of serving the taxpayer with an assessment and hearing objection, _the Commissioner should comply with the provisions of the Act as his administrative acts have far-reaching consequences of a garnishee on the taxpayer_.” [Underlined and bolded for emphasis] [62] Mr _Makorokotera_ did not suggest that the letter dated 4 March 2022 which accompanied the assessments of even date was itself a notice of assessment. Which means that those notices and schedules which did not stipulate _ex facie_ , the taxpayer`s procedural rights were issued in violation of s 51 (3) of the Act.In that regard, those assessments from page 272 to 286 become invalid for such reason. [63] I now come to those assessments which survive this procedural scythe. These are found on pages 263-271.The blight afflicting these assessments, according to Mr. _Tshuma,_ was that some were issued as original assessments, contrary to the averment that the Commissioner was effecting revisions authorised in terms of s 47 of the Act. [64] The Commissioner-as correctly submitted by Mr _Makorokotera_ , is empowered to revisit an “assessment” in terms of s 47 of the Act. “Assessment per s2 of the Act denotes but “a determination.” Which determination is recorded in the form of assessments notices issued to taxpayers. [65] A closer reading of s 47 (1) suggests that additional assessments can only derive from and attach themselves to previously issued assessments. Whilst the Commissioner may be at large regarding the matters she may examine in the exercise of powers under s 47, she must, when compiling her revised assessments, return to and adjust the previously issued assessments. [66] Thus whether they bear the endorsement “amended” or “original”, the March 2022 assessments hinge on the propriety or otherwise of the Commissioner`s conduct in terms of s 47 of the Act. As already noted, this issue turns on the objection allegedly lodged following the September 2021 objection. In that respect, the averment that the assessments marked “amended” and “original” were invalid for want of compliance with s 47 of the Act cannot sustain. DISPOSITION [67] The appellant NFL sought to persuade the court to dispose of the matter on the basis of a point _in limine_. But for the point _in limine_ to attain objective, it needed to prevail in all aspects raised. My findings are that NFL has partially succeeded in impeaching a number of assessments as invalid. To that extent, I will set aside as invalid, the schedules rendered under the assessments of 4 March 2022. [68] But some assessments survived the onslaught. In that respect, the point _in limine_ will fail. On costs, I will let each party bear its own costs given the partial success on both sides. It is therefore ordered that 1. The assessments itemised in Roman Numerals below, dated 4 March 2022, each titled “ _Schedules of Withholding Taxes Due in Terms of section 30 of the Income Tax Act [Chapter 23:06]_ ”, appearing on the record page numbers indicated and bearing the total taxable amounts shown respectively, be and are hereby withdrawn; - 1. 272 ZWL 2,711,617.68 2. 273 ZWL 408,158.76 3. 274 ZWL 2,236,418.52 4. 275 ZWL 2,161,486.56 5. 276 ZWL 1,791,983.52 6. 277 ZWL 3,063,384.12 7. 278 ZWL 34,508,194.68 8. 279 ZWL 3,228,567.24 9. 280 ZWL 927,691.68 10. 281 ZWL 2,771,730.12 11. 282 ZWL 2,628,626.28 12. 283 ZWL 2,272,487.52 13. 284 ZWL 3,871,655.76 14. ## 285 ZWL 42,171,091.50 15. ## 286 ZWL 328,347,653.28 2. The point _in limine_ raised on behalf of appellant be and is hereby dismissed. 3. Each party to bear its own costs. _Dube, Manikai and Hwacha_ -appellant`s legal practitioners. _Sinyoro and Partners_ -respondent’s legal practitioners. **[Chilimbe J___8/7/25]** 1 Hereinafter cited as “SC 148/21”. 2 Page 68 of the record. 3 Because the subsequent assessments were marked “original” and “amended” implying in the latter case, a revisit to the earlier assessment.