Free State Development Corporation v The Commision for the South African Revenue Service
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | PE Molitsoane J |
| Judgment Date | 30 March 2021 |
| Docket Number | Vat 1999 |
| Hearing Date | 19 March 2021 |
| Court | Tax Court |
| Citation | 2021 JDR 0731 (FB) |
Molitsoane J:
This is an interlocutory application. The applicant seeks to amend its Statement of Grounds of Appeal, filed in terms of Rule 32 of the Rules promulgated under section 103 of the Tax Administration
2021 JDR 0731 p2
Molitsoane J
Act, 28 of 2011.Reference to a Rule or Rules in this judgment refers to the Tax Court Rules.
On 12 June 2020 the applicant, appellant in the main case, lodged an appeal in this court in terms of Rule 32 against the decision of the respondent to charge it in-put VAT. The Statement of the Grounds of Appeal was filed by way of an affidavit.
The respondent accepted this statement with the proviso that the evidence insofar as the document was presented in the form of an affidavit was not accepted.
On 29 January 2021 the applicant filed a supplementary affidavit, which is the subject of this application. On 2 March 2021 the Respondent filed a Notice of Irregular Proceedings in terms of the Uniform Rule 30.
The applicant withdrew the filing of the supplementary affidavit and approached this court for the following relief:
"(1) That the Court condone the filing of a supplementary affidavit on behalf of the Applicant, attached to the application as Annexure "A";
(2) That the applicant be allowed to use the supplementary affidavit in their submissions;
(3) That the applicant pay the costs of this application;
(4) That the respondent pay the costs of this application, only if opposed."
2021 JDR 0731 p3
Molitsoane J
The respondent opposes this application on the following grounds:
That the application is fatally flawed or irregular;
That the Tax Rules do not provide for the amendment of an affidavit;
That the Tax Court proceedings being of an action in nature, do not permit that Statements of Grounds of Appeal being submitted in the form of an affidavit; and
Prohibition from importing the Uniform Rules into the Tax Court Rules.
The applicant contends that Rule 32(1) does not prescribe a form in which the statement of the grounds of appeal must be in. The applicant contends that in essence, that it is immaterial if the statement is in the form of a statement or affidavit. The applicant thus contends that opposing the use of an affidavit to file the statement of the grounds of appeal would thus amount to emphasising form over substance. The applicant contends that Rule 35 makes provision for amendment of the statement of grounds of appeal. The applicant contends further that the amendment sought to be effected does not introduce a ground of appeal that constitutes a new ground of objection against a part or amount of the disputed assessment not objected to. The applicant lastly contends that since Rule 35 of the Tax Rules is silent in dealing with an affidavit, the applicants seeks to invoke Uniform Rule 6(5)(e) to file supplementary affidavit or a further affidavit.
2021 JDR 0731 p4
Molitsoane J
It is contended by the respondent that the applicants elected to file the Statement of the grounds of appeal...
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