Discretion extra
Discretion extra judicial power can be summarized as one of the important powers where commissioner were having huge powers over tax payers and they were deciding issues according to their own reason and not reality. Example in issues which making assessment.
They
were discretionary extra judicial power because commissioners were vested
powers to decide and handling matters of tax dispute as court.
They
were discretionary extra judicial power because commissioners may direct anyone
to pay tax even of the business does not qualify to pay tax.
They
were discretionary extra judicial power because commissioners acted as court so
if one want to raise objections would have failed (objections failed to be
proceed or archived) since the power were of commissioner and there were no else
to bring the claims.
They
were discretionary extra judicial power because the tax payers were harass
while enforcing tax.
Example,
Tax Revenue Appeals Board and,
Tax Revenue Appeals Tribunal are example
of extra judicial power mechanism since they perform features of the court
while they are not court in reality.
Section
94 (1) of the income tax act, 2004 provide that extension of time to file
return of income, under this section commissioner had powers to (a) may on
terms and conditions as the commissioner thinks appropriate including as to
payment of security and where reasonable cause is show, extended the date by
which the estimate or returns is to be filed. (b) shall serve the person with
written notice of the commissioner's decision on the application 93 (1-2)
Section
95 of the income tax act 2004 provide for jeopardy assessment but nowadays from
the income tax act cap 332 there is no this power on
Section
96 of the income tax act 2004, provide for adjusted assessment 96 (1-3)
Section
(97) of the income tax act 2004, provide powers of commissioner for notice of
assessment 97 (a-e)
Section
101 (1) of the income tax act 2004, provide powers for commissioner in making
or misleading statement.
Section
103 of the income tax act 2004, provide powers of commissioner to make
assessment or interest, penalties for which a person is liable under this division.
Section
119 of the income tax act 2004, provide powers for commissioner in compounding
offences. 119 (1-4)
c)
Section 95 provide powers for commissioner to provide extension of time to file
return
1)
The powers were not provide equal to petitioner (tax payers), this is when
power for the commissioner to extend time to file return because the
commissioner had power to extend he may sometime make bias to his friend to
extend time in paying tax do this creates inequality among tax payers hence
petitioner raised concern because the powers were not providing equality to tax
payers hence decide to challenge for powers to removed since they were not
providing equality to tax payers.
2) On
the issue of jeopardy assessment, under jeopard assessment it has no difference
much with best judgement but here is when the tax payers wanted to leave the
city or has become bankruptcy then the commissioner assessed him (tax payer)
without the tax payers files return according to his best judgement has raised
concern and petitioner challenged powers to be removed on the hands of
commissioner to taxes.
3)
On the issue of adjusted assessment as provided under section 96 of income tax
act of 2004 provide that the commissioner had given powers to adjusted
assessment because at any time he had that power the commissioner may some
unreasonableness harass the tax payers to pays tax any time he want since he
had that power of doing so this creates concerns to petitioner since the
commissioner may adjusted assessment unreasonableness to tax payers so
petitioner (tax payers) challenged this power because it was not given them free
area to conduct their business in peaceful way due to the harassment done by
the commissioner for the tax.
4)
On the point of making notice of assessment as provided under section 97 of
income tax act 2004 commissioner had powers of making notice of assessment
because he has those powers he may sometime make an assessment without serve
written notice of the assessment since he had powers, he may not state the
grounds for making assessment, he may not provide the time, place and manner of
objecting to the assessment due to powers he had so there challenges of
commissioner result to petitioner (tax payers) to raise a concern in challenges
these powers so as to have organs responsibles for dealing with this matter or
to enforce the commissioner when breach this law at the material time or course
of his action so as justice to be achieved.
5)
On the point of commissioner in making penalty for false making or misleading
statement as provided under section 101 (1) of income tax act of 2004 that
since commissioner had powers in making penalties he may sometime adjust the percent
to tax payers in paying tax so this decision of commissioner raise concern to people
since many were paying tax which was not correct to their business hence
challenges these powers to be amended so as to get laws that will follow
principles of the constitution as provided under Constitution of United
Republic of Tanzania of 1977, Article 138 (1-2) that the tax has to be paid in
accordance with the law of constitution provided.
By summing
up Discretionary extra judicial power were bias since they rely on single
person and that single person had powers on multi controlling such as
performing duties and features to act as a judiciary by dispensing justice
because the decision were violates tax payers right they decide to challenge
the power hence the amendment were achieved and new days there are different
machineries such as Tax Revenue Appeals Board (TRAB) Tax Revenue Appeals
Tribunal (TRAT) court of appeal of Tanzania all these deals with challenges
facing petitioner (tax payer) after the decision of commissioner general these
decision when the tax payers is aggrieved he may follows these institutions to
attain his rights.
REFERENCES
Statutes
·
The Income Tax Act cap 2004
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