D (PVT) LTD v COMMISSIONER-GENERAL, ZIMBABWE REVENUE AUTHORITY

HIGH COURT, HARARE

[Opposed Application HH 378-16]

January 22 and June 22, 2016*

FOROMA J

Revenue and public finance  – Income tax  – Interest on tax overpaid  – Payment by Zimbabwe Revenue Authority of interest on amount of tax overpaid.

To avoid the consequences of garnishee, the applicant had paid the respondent under protest the sum of US$ 698 864.48 being interest demanded by respondent on the grounds that applicant had under estimated its provisional tax payments for the years 2009 and 2010. The applicant then challenged in the High Court the right of the respondent to payment of the interest in case no. HC 9715/12. The High Court held that the applicant had no obligation to pay the interest as the respondent was obligated to waive payment of that interest. In compliance with the High Court order to refund the interest, the respondent credited the applicant with the amount of that interest. Applicant then demanded interest on the unlawfully demanded interest by mounting the present application seeking an order that respondent pay to it interest on the sum of US$ 698 864.48 either at the 10 per cent per annum rate set out in the Income Tax Act [Chapter 23:06] or at the rate of five per cent per annum set out in the Prescribed Rate of Interest Act [Chapter 8:10].

Held, that essentials for the Commissioner of Taxes’ liability for interest on the delay of the refund of overpayment are set out in terms of s 48 (3) of the Income Tax Act.

Held, further, that since the underlying cause of the overpayment of tax was an underestimation of the provisional tax by the applicant, the respondent is exempt from paying interest on the overpayment at the expiry of the 60 days period.

Case cited:

Meman & Anor v Controller of Customs & Excise 1987 (1) ZLR 170 (S), referred to

Legislation considered:

Income Tax Act [Chapter 23:06], ss 48 (3), 58, 207

Prescribed Rate of Interest Act [Chapter 8:10]

D Ndawana, for the applicant

T Magwaliba, for the respondent

FOROMA J:

The applicant in this matter filed an application against the respondent seeking the following declaratur  –  (1) it is declared that the respondent is obliged to pay interest to the applicant at the rate of 10 per cent per annum on the sums and for the period calculated in Annexure J to the founding affidavit. (2) it is ordered that the respondent pay the costs of this application. Annexure J is a schedule of interest calculation which is reproduced below:

D (Pvt) Ltd

D (Pvt) Ltd v ZIMRA HC 9715/12 Interest Refund

Interest CALCULATION

Date Paid

Refund Date

Amount

Days

Rate

Interest

11 September 2012

25/03/15

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.

Please click here to login