Commissioner of Internal Revenue v. Sumisetsu Philippines, Inc.

EN BANC [C.T.A. EB CASE NO. 1261. July 25, 2017.] (C.T.A. Case No. 8374) COMMISSIONER OF INTERNAL REVENUE , petitioner , vs. SUMISETSU PHILIPPINES, INC. , respondent . [C.T.A. EB CASE NO. 1370. July 25, 2017.] (C.T.A. Case No. 8374) SUMISETSU PHILIPPINES, INC. , petitioner , vs. COMMISSIONER OF INTERNAL REVENUE , respondent . DECISION UY , J p : Before the Court En Banc are the consolidated Petitions for Review docketed as CTA EB No. 1261 entitled "Commissioner of Internal Revenue, Petitioner, versus Sumisetsu Philippines, Inc.,Respondent" filed on January 20, 2015; 1 and CTA EB No. 1370 entitled "Sumisetsu Philippines, Inc.,Petitioner, versus Commissioner of Internal Revenue, Respondent" filed on November 9, 2015. 2 In CTA EB No. 1261 the Commissioner of Internal Revenue (CIR) assails the Decision dated September 22, 2014 3 and the Resolution dated December 19, 2014, 4 both rendered by the Third Division of this Court (Court in Division) in CTA Case No. 8374, entitled "Sumisetsu Philippines, Inc.,Petitioner, versus Commissioner of Internal Revenue, Respondent," the dispositive portion of which respectively read as follows: HTcADC Decision dated September 22, 2014: " WHEREFORE ,the Petition for Review is hereby PARTIALLY GRANTED .Respondent is hereby ORDERED to REFUND or ISSUE A TAX CREDIT CERTIFICATE to petitioner the amount of Php6,155,193.95 representing its unutilized excess input VAT for the four quarters of taxable year 2009. SO ORDERED ." Resolution dated December 19, 2014: "In view thereof, respondent's Motion for Partial Reconsideration (Re: Decision promulgated 22 September 2014),is hereby DENIED for lack of merit. Now anent petitioner's "Omnibus Motion" to submit Annexes "A" to "M," after a perusal of the attached documents, the Court finds the same to be in order. Thus, the "Omnibus Motion 2. To Permit Presentation of Evidence with Respect to the Attached Documents," is hereby GRANTED .While the Omnibus Motion (1. For Partial Reconsideration of the Decision dated 22 September 2014; and 3. To Admit into Evidence and Consider for Purposes of Resolving this Motion the Attached Documents)," is hereby HELD IN ABEYANCE . CAIHTE WHEREFORE ,let a Commissioner's hearing before Atty. Christine C. Maza-Guarin be SET on January 20, 2015 at 1:30 p.m. SO ORDERED ." Additionally, in the Supplemental Petition for Revie w filed on February 1, 2016 in CTA EB No. 1261, 5 the CIR further assails the Amended Decision dated October 6, 2015 6 and Resolution dated January 15, 2016, 7 likewise rendered by Court in Division in the same case, the dispositive portion of which respectively states: Amended Decision dated October 6, 2015: " WHEREFORE ,in view of the foregoing, petitioner's 'Omnibus Motion (1. For Partial Reconsideration of the Decision dated 22 September 2014; and 3. To admit into Evidence and Consider for Purposes of Resolving this Motion the Attached Documents)' is hereby PARTIALLY GRANTED .Accordingly, the Decision of the Court promulgated on September 22, 2014 is hereby AMENDED and MODIFIED to the extent that respondent is ORDERED TO REFUND or ISSUE A TAX CREDIT CERTIFICATE in favor of petitioner the total amount of P6,349,500.15, representing its unutilized excess input VAT for the four quarters of taxable year 2009. SO ORDERED ." Resolution dated January 15, 2016: " WHEREFORE ,premises considered, the instant 'Motion for Partial Reconsideration (Re: Amended Decision promulgated 6 October 2015)' is hereby DENIED for lack of merit. Consequently, the Amended Decision dated October 6, 2015 is hereby UPHELD and AFFIRMED . SO ORDERED ." As regards CTA EB No. 1370 filed on November 9, 2015, 8 Sumisetsu Philippines, Inc. (Sumisetsu) likewise assails the same Decision dated September 22, 2014 9 and Amended Decision dated December 19, 2014. 10 THE FACTS Sumisetsu is a corporation duly organized under Philippine Laws, with principal office at the 8th Floor of GC Corporate Plaza, 150 Legaspi Street, Legaspi Village, Makati City. It is registered with the Bureau of Internal Revenue (BIR) for value-added tax (VAT) purposes, with Certificate of Registration No. 8RC0000019593. On the other hand, the CIR is the head of the BIR, holding office at the BIR National Office, Diliman, Quezon City. In the course of its business, as contractor for electrical and mechanical services, Sumisetsu purchased various materials and paid for the applicable input VAT thereon. aScITE During the calendar year 2009, Sumisetsu allegedly entered into numerous contracts, which included, among others, the contract to provide (as it did actually provide) electrical and mechanical services to a range of clients, majority of whom were registered with the Philippine Economic Zone Authority ("PEZA") pursuant to Republic Act No. 7916 and non-resident foreign entities. On February 16, 2011, Sumisetsu filed a claim for refund or request for issuance of tax credit certificate in the amount of P16,053,102.32 with the BIR, representing its unutilized input VAT for the four taxable quarters of 2009. On June 13, 2011, Sumisetsu received the Letter of Authority (LOA) dated May 19, 2011 from the BIR requesting for submission of certain documents. On June 17, 2011, Sumisetsu submitted to the BIR the documents listed in the LOA. However, as of October 15, 2011, the CIR has not acted on its claim for refund or request for issuance of tax credit certificate. Hence, Sumisetsu filed a Petition for Review before the Court in Division on November 10, 2011 docketed as CTA Case No. 8374 . On December 6, 2011, the CIR filed his Answer ,interposing certain Special and Affirmative Defenses, which include, among others, the defense that the amount of P16,053,102.32 allegedly representing its unutilized input VAT for the year 2009 was not properly documented; that there is no record of Sumisetsu ever submitting complete documents to substantiate its administrative claim for refund. Far from complying with the checklist of requirements, Sumisetsu merely alleged in the petition for review that it submitted complete documents in support of its administrative claim for refund although it merely submitted six (6) sets of documents as indicated in its letter dated 15 February 2011. Sumisetsu's failure to submit documents supporting its claim for refund makes its administrative claim for refund pro forma .Such failure to comply with a condition precedent prior to the institution of its petition for review makes it dismissible for absence of jurisdiction on the part of the Honorable Court. Allegedly, as claims for refund partake the nature of exemptions, the same should be strictly construed against the claimant and cannot be allowed unless granted in the most explicit and categorical language. On September 22, 2014, the Court in Division rendered the assailed Decision 11 partially granting a tax refund or issuance of tax credit certificate in favor of Sumisetsu in the amount of P6,155,193.95, representing its unutilized excess input VAT for the four quarters of taxable year 2009. The Court in Division likewise ruled that the administrative and judicial claims were timely filed by Sumisetsu. On October 14, 2014, the CIR filed his Motion for Partial Reconsideration (Re: Decision promulgated 22 September 2014) ; 12 while Sumisetsu filed its Omnibus Motion (1. For Partial Reconsideration of the Decision dated 22 September 2014; 2. To Permit the Presentation of Evidence with Respect to the Attached Documents; and 3. To Admit into Evidence and Consider for Purposes of Resolving this Motion the Attached Documents) . 13 In the Resolution dated December 19, 2014, 14 the Court in Division denied the CIR's Motion for Partial Reconsideration ,while Sumisetsu's Omnibus Motion (2. To Permit the Presentation of Evidence with Respect to the Attached Documents) was granted. On the other hand, resolution of Sumisetsu's Omnibus Motion (1. For Partial Reconsideration of the Decision dated 22 September 2014 ; 3. To Admit into Evidence and Consider for Purposes of Resolving this Motion the Attached Documents) was held in abeyance. DETACa On January 20, 2015, the CIR filed before the Court En Banc his Petition for Review dated January 14, 2015, which was docketed as CTA EB No. 1261 , 15 assailing the said Decision dated September 22, 2014 and Resolution dated December 19, 2014. In the Resolution dated February 9, 2015, 16 the Court En Banc ordered Sumisetsu to file its comment to the CIR's Petition for Review (CTA EB No. 1261).In compliance, Sumisetsu filed its Comment (on Petition for Review dated 14 January 2015) on March 16, 2015. 17 Thereafter, in the Resolution dated April 14, 2015, the Court En Banc directed both parties to file their respective memoranda within thirty (30) days from receipt thereof. 18 On May 5, 2015, the CIR filed a Manifestation ,stating that he is adopting the Arguments/Discussions raised in his Petition for Review . 19 On the other hand, Sumisetsu filed its Memorandum on June 8, 2015. 20 Thereafter, in the Resolution dated June 30, 2015, 21 the Court En Banc submitted the CIR's Petition for Review for decision. However, pursuant to the Court En Banc 's Resolution dated September 24, 2015, 22 the Resolution dated June 30, 2015, submitting the CIR's Petition for Review in CTA EB No. 1261 for decision, was recalled, considering that CTA Case No. 8374 was still active (at that time) with the Court in Division and that the complete docket of the said case was still with the Court in Division. In the meantime, the Court in Division issued the Resolution dated July 2, 2015, 23 admitting petitioner's Exhibits "SSS","TTT-1","UUU-1","VVV-1","WWW-1","XXX-1","YYY-1","ZZZ-1","AAAA-1","CCCC","DDDD","EEEE","EEEE-1",but denying the admission of its Exhibits "RRR" and "BBBB-1." Thereafter, the Court in Division issued the assailed Amended Decision dated October 6, 2015, 24 which partially granted Sumisetsu's Omnibus Motion (1. For Partial Reconsideration of the Decision dated 22 September 2014 ; 3. To Admit into Evidence and Consider for Purposes of Resolving this Motion the Attached Documents) and ordered the CIR to refund or issue a tax credit certificate in favor of Sumisetsu the modified amount of P6,349,500.15, representing its unutilized excess input VAT for the four quarters of taxable year 2009. Subsequently, the CIR filed before the Court in Division his Motion for Partial Reconsideration (Re: Amended Decision promulgated 6 October 2015) on October 26, 2015, 25 while Sumisetsu filed its Comment (On Motion for Partial Reconsideration dated 26 October 2015) on November 23, 2015. 26 On October 26, 2015, Sumisetsu filed before the Court En Banc a Motion for Additional Time to File Petition for Review ,praying for an additional period of fifteen (15) days from October 24, 2015, or until November 8, 2015, within which to file its Petition for Review. 27 The Court En Banc granted Sumisetsu a final and non-extendible period of fifteen (15) days from October 24, 2015, or until November 8, 2015, within which to file the said Petition for Review. 28 On November 9, 2015, 29 Sumisetsu filed its Petition for Review before the Court En Banc . 30 This case was docketed as CTA EB No. 1370. 31 HEITAD In the Resolution dated November 26, 2015, 32 the Court En Banc motu proprio consolidated CTA EB No. 1370 with CTA EB No. 1261, considering that both cases are appeals from the Decision dated September 22, 2014 and Amended Decision dated October 6, 2015, which were rendered by the Court in Division in CTA Case No. 8374. The Court in Division issued the assailed Resolution dated January 15, 2016, 33 denying the CIR's Motion for Partial Reconsideration (Re: Amended Decision promulgated 6 October 2015) for lack of merit and for being pro forma . On February 1, 2016, the CIR filed a Supplemental Petition for Review in CTA EB Case No. 1261, 34 seeking the partial reversal and setting aside of the Amended Decision dated October 6, 2015 and the Resolution dated January 15, 2016 rendered by the Court in Division. In the Resolution dated February 23, 2016, 35 the Court En Banc ordered the CIR to file its comment to the Petition for Review in CTA EB No. 1370, while Sumisetsu was directed to file its comment to the CIR's Supplemental Petition for Review .In compliance, Sumisetsu filed its Comment on the Supplemental Petition for Review dated 27 January 2016 in CTA EB No. 1261 on March 10, 2016, 36 while the CIR filed its Comment (Re: Petition for Review) on March 14, 2016. 37 Thereafter, in the Resolution dated April 18, 2016, the Court En Banc directed both parties to file their respective memoranda within thirty (30) days from receipt thereof. 38 On May 2, 2016, the CIR filed a Manifestation ,stating that he is adopting the arguments raised in his Supplemental Petition for Review in CTA EB No. 1261 filed on February 1, 2016 and the arguments raised in his Comment to the Petition for Review in CTA EB No. 1370 filed on March 14, 2016 as his Memorandum. 39 On the other hand, Sumisetsu filed its Memorandum on May 30, 2016. 40 Consequently, in the Resolution dated June 9, 2016, the consolidated cases were deemed submitted for decision by the Court En Banc . 41 Hence, this Decision. aDSIHc ISSUES AND ASSIGNMENT OF ERRORS For CTA EB No. 1261 : The CIR assigns the following issues in his Petition for Review and Supplemental Petition for Review ,to wit: "WHETHER OR NOT THE THIRD DIVISION OF THE HONORABLE COURT ERRED IN GRANTING [Sumisetsu's] CLAIM FOR REFUND IN THE REDUCED AMOUNT OF P6,155,193.95 42 ALLEGEDLY REPRESENTING CREDITABLE INPUT VAT PAID AND ATTRIBUTABLE/ALLOCATED TO EFFECTIVELY ZERO-RATED SALES FOR THE FOUR QUARTERS OF TAXABLE YEAR 2009." 43 "WHETHER OR NOT THE THIRD DIVISION OF THE HONORABLE COURT ERRED IN ALLOWING [Sumisetsu] TO PRESENT EVIDENCE AFTER A DECISION HAD ALREADY BEEN RENDERED." 44 The CIR's arguments: In his Petition for Review , CIR contends that Sumisetsu failed to substantiate its claim that it is entitled to the tax refund/credit. According to the CIR, Sumisetsu did not comply with the invoicing and accounting requirements laid down in Sections 113, 114 and 236 of the NIRC of 1997, as amended. Additionally, the CIR claims that Sumisetsu failed to prove that it has strictly complied with the submission of all supporting and relevant documents provided under RMO (RMO) No. 53-98 and other existing rules and regulations to warrant the grant of the application for refund. The CIR likewise argues that no valid administrative claim was filed on account of Sumisetsu's failure to submit documents in its administrative claim for tax refund/credit. Hence, the Court in Division has no jurisdiction to entertain the instant petition for review. In his Supplemental Petition for Review ,the CIR argues that the Court in Division should not have granted Sumisetsu's Omnibus Motion to present additional evidence in support of its motion for partial reconsideration. The CIR maintains that the documents presented were neither newly discovered nor inadvertently omitted due to fraud, accident, mistake or excusable negligence which would merit the reopening of the case. According to the CIR, to allow the presentation of such evidence is not a mere relaxation, but rather, is a blatant violation of the rules of procedures, and should not be countenanced in any court. Sumisetsu's counter-arguments: Sumisetsu counter-argues that it submitted all the relevant documents in support of its claim for refund and that RMO No. 53-98 is merely illustrative of the documents to be submitted to the BIR by a taxpayer seeking an input VAT refund or issuance of a tax credit certificate but it does not contain an exclusive enumeration of the documents to be submitted nor does it require strict compliance in order for the application to be honored. ATICcS Allegedly, the purported absence of certification of non-filing of claim of tax refund with the Board of Investments, Department of Finance, and Special Economic Zones, Freeport Zones does not affect Sumisetsu's application for refund because it is only the CIR who has the authority to decide on Sumisetsu's claim for refund. Sumisetsu also avers that the Court in Division correctly acquired jurisdiction over Sumisetsu's Petition for Review filed on November 10, 2011 as its Petition for Review was filed well within the reglementary period and that it had complied with the invoicing and accounting requirements provided by law and duly substantiated the input VAT claim allowed by the Court. Furthermore, Sumisetsu contends that the Court in Division correctly ruled that the CIR's Motion for Partial Reconsideration was pro forma and did not toll the running of the reglementary period to appeal and consequently, the CIR has lost his right to appeal the Amended Decision. Finally, as regards petitioner's arguments in his Supplemental Petition for Review , Sumisetsu maintains that the Court in Division was correct in allowing it to present additional evidence in the Resolution dated December 19, 2014. It points out that the CIR allegedly failed to timely question the Court in Division's Resolution and even allowed Sumisetsu to present its evidence, the CIR was represented by counsel during the commissioner's hearing for the marking of Sumisetsu's additional evidence on January 20, 2015 and February 10, 2015; the CIR did not question the presentation of Sumisetsu's evidence in his Original Petition and Motion for Partial Reconsideration, but only in his Supplemental Petition. Sumisetsu emphasizes that this Court is not strictly governed by the technical rules of evidence. For CTA EB No. 1370 : Upon the other hand, Sumisetsu raises this sole issue in its Petition for Review ,to wit: "5.1.1 Whether Sumisetsu is entitled to refund or credit for its Input VAT payments attributable and allocated to services rendered to PEZA-registered entities for the year 2009 in the aggregate amount of P13,491,223.78." 45 Sumisetsu's arguments: Sumisetsu argues that it is entitled to a tax refund or tax credit certificate for input VAT payments attributable and allocated to its zero-rated sales in the amount of P13,491,223.78. Allegedly, it has complied with the requirements for claiming the refund of its unutilized input VAT, pursuant to Section 112, in relation to Section 106 (A) (2) (A), both of the NIRC of 1997, as amended. ETHIDa According to Sumisetsu, its services rendered to entities exempt under special laws are zero-rated and that it need not substantiate the input VAT directly attributable to VATable sales amounting to P6,899,036.26 because the law does not expressly require substantiation of input VAT directly attributable to VATable sales to claim input VAT attributable to zero-rated sales. If at all, Sumisetsu has allegedly, properly presented the input VAT claimed directly attributable to VATable sales amounting to P6,899,036.26. The CIR's counter-arguments: The CIR counter-argues that it is incumbent upon Sumisetsu to prove that it is entitled to the refund sought as it has the burden of proof to establish the factual basis of its claim for tax credit or refund. In this case, the CIR claims that Sumisetsu fell short of proving the veracity of its claim for refund. Failure to prove the same is fatal to its claim for tax refund. The CIR avers that it is well-settled principle in taxation that claims for refund are construed against the claimant as they partake the nature of an exemption from taxation and it is incumbent upon Sumisetsu to prove that it is entitled thereto. Finally, the CIR stresses that exemptions from taxation are highly disfavored in law and he who claims exemption must be able to justify his claim by the clearest grant of organic and statutory law. In the instant case, Sumisetsu failed to discharge its burden in establishing its claim for tax refund or credit. THE COURT EN BANC 'S RULING The Court En Banc finds no merit in the consolidated Petitions for Review. CTA EB No. 1261 Sumisetsu submitted complete documents in its administrative claim for tax refund/credit. The CIR argues that no valid administrative claim was filed on account of Sumisetsu's failure to submit documents in its administrative claim for tax refund or credit. Hence, the Court in Division allegedly had no jurisdiction to entertain Sumisetsu's Petition for Review in CTA Case No. 8374. We disagree. Section 112 of the NIRC of 1997, as amended by Republic Act (RA) No. 9337, 46 governs the rules on taxpayer's claim for refund of unutilized input VAT, the pertinent portion of which reads: "SEC. 112. Refunds or Tax Credits of Input Tax . (A) Zero-rated or Effectively Zero-rated Sales. Any VAT-registered person, whose sales are zero-rated or effectively zero-rated may, within two (2) years after the close of the taxable quarter when the sales were made, apply for the issuance of a tax credit certificate or refund of creditable input tax due or paid attributable to such sales, except transitional input tax, to the extent that such input tax has not been applied against output tax: Provided, however , That in the case of zero-rated sales under Section 106(A)(2)(a)(1), (2) and (b) and Section 108(B)(1) and (2), the acceptable foreign currency exchange proceeds thereof had been duly accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP): Provided, further ,that where the taxpayer is engaged in zero-rated or effectively zero-rated sale and also in taxable or exempt sale of goods or properties or services, and the amount of creditable input tax due or paid cannot be directly and entirely attributed to any one of the transactions, it shall be allocated proportionately on the basis of the volume of sales: x x x xxx xxx xxx (C) Period within which Refund or Tax Credit of Input Taxes shall be Made . In proper cases, the Commissioner shall grant a refund or issue the tax credit certificate for creditable input taxes within one hundred twenty (120) days from the date of submission of complete documents in support of the application filed in accordance with Subsection (A) hereof. TIADCc In case of full or partial denial of the claim for tax refund or tax credit, or the failure on the part of the Commissioner to act on the application within the period prescribed above, the taxpayer affected may, within thirty (30) days from the receipt of the decision denying the claim or after the expiration of the one-hundred-twenty-day period, appeal the decision or the unacted claim with the Court of Tax Appeals. xxx xxx xxx." (Emphasis Supplied) Based on the foregoing, the CIR is granted 120 days within which to decide the taxpayer's claim for refund or tax credit. Such 120-day period commences to run "from the date of submission of complete documents in support of the application" for tax credit certificate or refund. Moreover, the taxpayer is granted a 30-day period to appeal to this Court the decision or inaction of the CIR after the 120-day period. 47 Indeed, this 120+30-day period provided under Section 112 (C) of the NIRC is mandatory and jurisdictional. 48 Upon perusal of the records, We agree with the findings of the Court in Division that Sumisetsu's letter filed on June 17, 2011 with the BIR, 49 attaching its supporting documents for its administrative claim for tax refund or credit, is the reckoning point in determining the date of submission of complete documents. Bearing in mind that the burden to prove entitlement to a tax refund is on the taxpayer, it is presumed that in order to discharge its burden, the taxpayer, in this case Sumisetsu, had attached complete supporting documents necessary to prove its entitlement to a refund in its application, absent any evidence to the contrary. 50 Furthermore, it must be emphasized that the determination of what is complete document for purposes of refund rests on the taxpayer. In Pilipinas Total Gas, Inc. vs. Commissioner of Internal Revenue , 51 the Supreme Court held as follows: cSEDTC "x x x. Thus, taking the foregoing changes to the law altogether, it becomes apparent that, for purposes of determining when the supporting documents have been completed it is the taxpayer who ultimately determines when complete documents have been submitted for the purpose of commencing and continuing the running of the 120-day period .After all, he may have already completed the necessary documents the moment he filed his administrative claim, in which case, the 120-day period is reckoned from the date of filing. xxx xxx xxx Then, except in those instances where the BIR would require additional documents in order to fully appreciate a claim for tax credit or refund, in terms what additional document must be presented in support of a claim for tax credit or refund it is the taxpayer who has that right and the burden of providing any and all documents that would support his claim for tax credit or refund. After all, in a claim for tax credit or refund, it is the taxpayer who has the burden to prove his cause of action. As such, he enjoys relative freedom to submit such evidence to prove his claim." (Underscoring supplied) Considering that no counter evidence was presented by the CIR, the supporting documents submitted by Sumisetsu for its administrative claim for refund are deemed complete. In this connection, Sumisetsu's, failure to present Certification from the Board of Investments, Department of Finance, Special Economic Zones/Freeport Zones, to prove that no other claim for refund has been filed for refund, is of no consequence. After all, the CIR can easily verify whether Sumisetsu filed other claims for refund in the said government agencies by exercising his power granted to him by Section 5 (B) of the NIRC of 1997, to wit: "SEC. 5. Power of the Commissioner to Obtain Information, and to Summon/Examine, and Take Testimony of Persons . In ascertaining the correctness of any return, or in making a return when none has been made, or in determining the liability of any person for any internal revenue tax, or in collecting any such liability, or in evaluating tax compliance, the Commissioner is authorized: AIDSTE xxx xxx xxx (B) To obtain on a regular basis x x x from any office or officer of the national and local governments, government agencies and instrumentalities, including the Bangko Sentral ng Pilipinas and government-owned or -controlled corporations, any information such as, but not limited to, costs and volume of production, receipts or sales and gross incomes of taxpayers, and the names, addresses, and financial statements of corporations, mutual fund companies, insurance companies, regional operating headquarters of multinational companies, joint accounts, associations, joint ventures or consortia and registered partnerships, and their members;" (Emphasis supplied) Correspondingly, counting one hundred twenty (120) days from June 17, 2011, which was the date of submission of complete documents, the CIR had until October 15, 2011 to decide Sumisetsu's claim. Since no action was taken by the CIR, Sumisetsu had thirty (30) days from October 15, 2011 or until November 14, 2011 to elevate the judicial claim. Sumisetsu filed its Petition for Review on November 10, 2011 which was docketed as CTA Case No. 8374. 52 Clearly, Sumisetsu's Petition for Review in CTA Case No. 8374 before the Court in Division was filed well within the period prescribed by law. Thus, the Court in Division is endowed with jurisdiction to entertain the said Petition for Review . RMO No. 53-98 is not a benchmark in determining whether the documents submitted by a taxpayer are actually complete. Additionally, the CIR argues that Sumisetsu failed to prove that it has strictly complied with the submission of all supporting and relevant documents provided under RMO No. 53-98 and other existing rules and regulations to warrant the grant of the application for refund. The Court finds the said argument bereft of merit. In Pilipinas Total Gas, Inc. vs. Commissioner of Internal Revenue , 53 the Supreme Court ruled as follows: "As can be gleaned from the above, RMO No. 53-98 is addressed to internal revenue officers and employees, for purposes of equity and uniformity, to guide them as to what documents they may require taxpayers to present upon audit of their tax liabilities . Nothing stated in the issuance would show that it was intended to be a benchmark in determining whether the documents submitted by a taxpayer are actually complete to support a claim for tax credit or refund of excess unutilized excess VAT. As expounded in Commissioner of Internal Revenue v. Team Sual Corporation (formerly Mirant Sual Corporation) : 54 The CIR's reliance on RMO 53-98 is misplaced. There is nothing in Section 112 of the NIRC, RR 3-88 or RMO 53-98 itself that requires submission of the complete documents enumerated in RMO 53-98 for a grant of a refund or credit of input VAT. The subject of RMO 53-98 states that it is a 'Checklist of Documents to be Submitted by a Taxpayer upon Audit of his Tax Liabilities x x x.' In this case, TSC was applying for a grant of refund or credit of its input tax. There was no allegation of an audit being conducted by the CIR. Even assuming that RMO 53-98 applies, it specifically states that some documents are required to be submitted by the taxpayer 'if applicable.' SDAaTC Moreover, if TSC indeed failed to submit the complete documents in support of its application, the CIR could have informed TSC of its failure, consistent with Revenue Memorandum Circular No. (RMC) 42-03 .However, the CIR did not inform TSC of the document it failed to submit, even up to the present petition. The CIR likewise raised the issue of TSC's alleged failure to submit the complete documents only in its motion for reconsideration of the CTA Special First Division's 4 March 2010 Decision. Accordingly, we affirm the CTA EB's finding that TSC filed its administrative claim on 21 December 2005, and submitted the complete documents in support of its application for refund or credit of its input tax at the same time. [Emphasis included. Underlining Ours.] As explained earlier and underlined in Team Sual above, taxpayers cannot simply be faulted for failing to submit the complete documents enumerated in RMO No. 53-98, absent notice from a revenue officer or employee that other documents are required . Granting that the BIR found that the documents submitted by Total Gas were inadequate, it should have notified the latter of the inadequacy by sending it a request to produce the necessary documents in order to make a just and expeditious resolution of the claim. Indeed, a taxpayer's failure with the requirements listed under RMO No. 53-98 is not fatal to its claim for tax credit or refund of excess unutilized excess VAT . This holds especially true when the application for tax credit or refund of excess unutilized excess VAT has arrived at the judicial level. After all, in the judicial level or when the case is elevated to the Court, the Rules of Court governs. Simply put, the question of whether the evidence submitted by a party is sufficient to warrant the granting of its prayer lies within the sound discretion and judgment of the Court." (Underscoring supplied) Applying the foregoing ruling, Sumisetsu's failure to submit all the requirements listed under RMO No. 53-98 is not fatal to its claim for tax credit or refund of excess unutilized excess VAT. The CIR failed to rebut the factual findings of the Court in Division. The CIR argues that Sumisetsu did not comply with the invoicing and accounting requirements laid down in Sections 113, 114 and 236 of the NIRC of 1997, as amended. AaCTcI We are not persuaded. After a perusal of the CIR's Petition for Review in CTA EB No. 1261, this Court notes that the CIR failed to rebut the factual findings of the Court in Division that Sumisetsu was able to substantiate its claim for unutilized input VAT amounting to P6,349,500.15. It is a basic rule that he who alleges must prove what is alleged. 55 In this case, the CIR failed to discharge its burden of disproving the findings of facts made by the Court in Division. Specifically, in the assailed Decision, 56 the Court in Division found, based on the Final Report dated February 20, 2013 of the Court-commissioned Independent Certified Public Accountant, 57 that the amount of P985,663.88 was not properly substantiated by VAT invoices or receipts prescribed under Sections 110 (A) and 113 (A) and (B) of the NIRC of 1997, in relation to Sections 4.110-1, 4.110-8 and 4.113-1 of Revenue Regulations No. 16-05; and that the amount of P971,751.79 failed to meet the substantiation requirements under the aforesaid provisions. Considering that the Court in Division made the said findings, it behooves the CIR to specifically pinpoint which of the remaining VAT invoices or receipts of Sumisetsu failed to comply with the invoicing and accounting requirements under the law. The general averment of the CIR that Sumisetsu failed to comply with the said requirements cannot constitute a reversible error on the part of the Court in Division for being unsubstantiated, too vague, highly speculative, and uncertain. As between the above-stated findings of the Court in Division and the general averment of the CIR, the former must perforce prevail. The Court in Division did not err in allowing Sumisetsu to present additional evidence. In his Supplemental Petition for Review ,the CIR argues that the Court in Division erred in allowing Sumisetsu to present evidence after a decision had already been rendered. We disagree. Sumisetsu's Omnibus Motion (2. To permit the Presentation of Evidence with Respect to the Attached Documents) may be deemed akin to a motion to reopen a case to receive further proofs. Relative thereto, in Cabarles vs. Maceda, et al. , 58 the Supreme Court said: "A motion to reopen a case to receive further proofs was not in the old rules but it was nonetheless a recognized procedural recourse, deriving validity and acceptance from long, established usage. x x x. xxx xxx xxx Generally, after the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only. However, the court, for good reasons, in the furtherance of justice, may allow new evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. A motion to reopen may thus properly be presented only after either or both parties had formally offered and closed their evidence, but before judgment is rendered, and even after promulgation but before finality of judgment and the only controlling guideline governing a motion to reopen is the paramount interest of justice .This remedy of reopening a case was meant to prevent a miscarriage of justice." (Emphasis and underscoring supplied) Based on the foregoing, the Court in Division is empowered to allow new evidence to be presented, even after promulgation of judgment, but before its finality. Thus, We see no reversible error on the part of the Court in Division in allowing Sumisetsu to present new evidence, since at that point the assailed Decision has not yet attained finality. acEHCD Moreover, in Commissioner of Internal Revenue vs. De La Salle University, Inc., etseq. , 59 the Supreme Court held: "We uphold the CTA Division's admission of the supplemental evidence on distinct but mutually reinforcing grounds, to wit: (1) the Commissioner failed to timely object to the formal offer of supplemental evidence ;and (2) the CTA is not governed strictly by the technical rules of evidence . First ,the failure to object to the offered evidence renders it admissible, and the court cannot, on its own, disregard such evidence. The Court has held that if a party desires the court to reject the evidence offered, it must so state in the form of a timely objection and it cannot raise the objection to the evidence for the first time on appeal. Because of a party's failure to timely object, the evidence offered becomes part of the evidence in the case. As a consequence, all the parties are considered bound by any outcome arising from the offer of evidence properly presented. As disclosed by DLSU, the Commissioner did not oppose the supplemental formal offer of evidence despite notice. The Commissioner objected to the admission of the supplemental evidence only when the case was on appeal to the CTA En Banc .By the time the Commissioner raised her objection, it was too late; the formal offer, admission and evaluation of the supplemental evidence were all fait accompli . We clarify that while the Commissioner's failure to promptly object had no bearing on the materiality or sufficiency of the supplemental evidence admitted, she was bound by the outcome of the CTA Division's assessment of evidence. Second , the CTA is not governed strictly by the technical rules of evidence. The CTA Division's admission of the formal offer of supplemental evidence, without prompt objection from the Commissioner, was thus justified. Notably, this Court had in the past admitted and considered evidence attached to the taxpayer's motion for reconsideration. In the case of BPI-Family Savings Bank v. Court of Appeals , 60 the tax refund claimant attached to its motion for reconsideration with the CTA its Final Adjustment Return .The Commissioner, as in the present case, did not oppose the taxpayer's motion for reconsideration and the admission of the Final Adjustment Return .We thus admitted and gave weight to the Final Adjustment Return although it was only submitted upon motion for reconsideration. EcTCAD We held that while it is true that strict procedural rules generally frown upon the submission of documents after the trial, the law creating the CTA specifically provides that proceedings before it shall not be governed strictly by the technical rules of evidence and that the paramount consideration remains the ascertainment of truth. We ruled that procedural rules should not bar courts from considering undisputed facts to arrive at a just determination of a controversy." (Underscoring supplied) In this case, except for Exhibit "RRR",the CIR offered no objection on the formal offer of Sumisetsu's exhibits. 61 These latter exhibits were admitted and considered by the Court in Division in arriving at the Amended Decision. Thus, in view of the pronouncements in the foregoing jurisprudence, the Court in Division did not err in allowing Sumisetsu to present supplemental evidence. The CIR's Motion for Partial Reconsideration of the assailed Amended Decision is not pro forma. Sumisetsu, in its Comment to the Supplemental Petition for Review ,argues that the Court in Division correctly ruled that the Motion for Partial Reconsideration of the assailed Amended Decision filed by the CIR is pro forma on the ground that the motion failed to specify the findings and conclusions alleged to be contrary to law or not supported by evidence and that it merely reiterated the arguments raised in his previous pleadings. Hence, it did not toll the running of the reglementary period to appeal. Consequently, Sumisetsu maintains that the CIR already lost his right to appeal the assailed Amended Decision with the Court En Banc . We are not convinced. Contrary to the ruling of the Court in Division in its Resolution dated January 15, 2016, a careful reading of the Motion for Partial Reconsideration filed by the CIR on October 26, 2015 62 shows that the CIR has specified the findings and conclusions alleged to be contrary to law or not supported by evidence, to wit: "With all due respect, respondent humbly manifests that petitioner failed to substantiate its claim that it is entitled to the refund being prayed for. Petitioner failed to comply with the invoicing and accounting requirements laid down in Sections 113, 114 and 236 of the NIRC of 1997, as amended, and its implementing regulation under RR 16-2005 .In addition, petitioner was not able to prove that it has strictly complied with the submission of all supporting and relevant documents provided under Revenue Memorandum Order (RMO) No. 53-98 and other existing rules and regulations to warrant the grant of the application for refund ." xxx xxx xxx For failing to comply with the submission of required documents, the aforesaid application for refund must likewise fall. xxx xxx xxx Likewise, petitioner failed to prove that no other claim for refund has been filed with the Board of Investment, Department of Finance, BOC, Special Economic Zones/Freeport Zones as no Certifications from said agencies were neither presented by petitioner during the administrative stage nor before the Honorable Court during its presentation of evidence. SDHTEC xxx xxx xxx "Again, the Honorable Court of Tax Appeals cannot exercise its appellate power to review and therefore has no jurisdiction to entertain the instant petition for review because no valid administrative claim was filed with respondent on account of petitioner's failure to submit documents in its administrative claim for tax refund/credit ." (Emphasis supplied) As can be gleaned from the foregoing, it is clear that the CIR has duly raised the issues in his Motion for Partial Reconsideration which he wanted to be reconsidered, interposing his arguments against the assailed Amended Decision. Moreover, We do not subscribe to the Court in Division's conclusion that the Motion for Partial Reconsideration is pro forma on the ground that it merely reiterated the arguments raised in his previous pleadings. Although We agree that the arguments raised in the Motion are mere reiterations of matters which have already been considered and resolved by the Court in Division, We cannot, however, declare that the said Motion is pro forma and conclude that the assailed Amended Decision has become final and executory with respect to the CIR. Apropos , the rule against pro forma motions should not be very strictly applied in tax cases before this Court, for the reason that the Rules of Court is only suppletory in character before the same. 63 In Republic of the Philippines vs. International Communications Corporation (ICC) , 64 the Supreme Court ruled that the mere fact that a motion for reconsideration reiterates issues already passed upon by the court does not, by itself, make it a pro forma motion. Moreover, in the case of Marikina Valley Development Corporation, et al. vs. Hon. Napoleon R. Flojo, et al. , 65 the Supreme Court has underscored the destructive effect of the literal application of the pro forma doctrine, to wit: HSAcaE "We note finally that because the doctrine relating to pro forma motions for reconsideration impacts upon the reality and substance of the statutory right of appeal that doctrine should be applied reasonably, rather than literally. The right to appeal, where it exists, is an important and valuable right. Public policy would be better served by according the appellate court an effective opportunity to review the decision of the trial court on the merits, rather than by aborting the right to appeal by a literal application of the procedural rules relating to pro forma motions for reconsideration." In view thereof, in the absence of a showing that the Motion for Partial Reconsideration filed by the CIR before the Court in Division was merely intended for delay, the same cannot be considered outright as pro forma .Consequently, said motion tolled the running of the reglementary period of appeal and the assailed Amended Decision of the Court in Division did not become final and immediately executory with respect to the CIR. Nevertheless, We cannot say the same with regard to Sumisetsu. CTA EB No. 1370 An appeal to the Court En Banc must be preceded by the filing of a timely motion for reconsideration or new trial with the Court in Division. For Sumisetsu's failure to file a motion for reconsideration of the assailed Amended Decision dated October 6, 2015 rendered by the Court in Division, the instant appeal of Sumisetsu must be dismissed. In the very recent case of Asiatrust Development Bank, Inc. vs. Commissioner of Internal Revenue, etseq. , 66 the Supreme Court held: "Section 1, Rule 8 of the Revised Rules of the CTA states: SECTION 1. Review of cases in the Court en banc . In cases falling under the exclusive appellate jurisdiction of the Court en banc, the petition for review of a decision or resolution of the Court in Division must be preceded by the filing of a timely motion for reconsideration or new trial with the Division. Thus, in order for the CTA En Banc to take cognizance of an appeal via a petition for review, a timely motion for reconsideration or new trial must first be filed with the CTA Division that issued the assailed decision or resolution. Failure to do so is a ground for the dismissal of the appeal as the word 'must' indicates that the filing of a prior motion is mandatory, and not merely directory . The same is true in the case of an amended decision . Section 3, Rule 14 of the same rules defines an amended decision as '[a]ny action modifying or reversing a decision of the Court en banc or in Division.' As explained in CE Luzon Geothermal Power Company, Inc. v. Commissioner of Internal Revenue , 67 an amended decision is a different decision, and thus, is a proper subject of a motion of reconsideration . In this case, the CIR's failure to move for a reconsideration of the Amended Decision of the CTA Division is a ground for the dismissal of its Petition for Review before the CTA En Banc .Thus, the CTA En Banc did not err in denying the CIR's appeal on procedural grounds. AScHCD Due to this procedural lapse, the Amended Decision has attained finality insofar as the CIR is concerned. The CIR, therefore, may no longer question the merits of the case before this Court. Accordingly, there is no reason for the Court to discuss the other issues raised by the CIR. As the Court has often held, procedural rules exist to be followed, not to be trifled with, and thus, may be relaxed only for the most persuasive reasons." Thus, since there is no indication that Sumisetsu filed a motion for reconsideration of the assailed Amended Decision, the latter has attained finality insofar as Sumisetsu is concerned. Correspondingly, Sumisetsu may no longer question the merits of the case before the Court En Banc . WHEREFORE ,in light of the foregoing considerations, the Petition for Review and Supplemental Petition for Review filed by the CIR in CTA EB No. 1261 is DENIED for lack of merit; while the Petition for Review filed by Sumisetsu in CTA EB 1370 is DISMISSED for its failure to file a motion for reconsideration of the assailed Amended Decision dated October 6, 2015 before filing the said Petition for Review . Accordingly, the assailed Decision dated September 22, 2014, the said Amended Decision dated October 6, 2015, and the Resolutions dated December 19, 2014 and January 15, 2016, all rendered by the Court in Division in CTA Case No. 8374 are AFFIRMED . SO ORDERED. (SGD.) ERLINDA P. UY Associate Justice Juanito C. Castaeda, Jr.,Lovell R. Bautista, Caesar A. Casanova, Esperanza R. Fabon-Victorino, Ma. Belen M. Ringpis-Liban and Catherine T. Manahan, JJ. ,concur. Roman G. del Rosario, P.J. and Cielito N. Mindaro-Grulla, J. ,see Concurring and Dissenting Opinion. Separate Opinions DEL ROSARIO , P.J.,concurring and dissenting opinion : I concur with the ponencia in denying the Petition for Review and Supplemental Petition for Review filed by the Commissioner of Internal Revenue (CIR) in CTA EB No. 1261 thereby affirming the Court in Division's assailed Amended Decision which granted a refund in favor of Sumisetsu in the amount of Php6,349,500.15 representing Sumisetsu's unutilized excess input VAT for the four quarters of taxable year 2009. HESIcT With due respect to my esteemed and learned colleague, the Honorable Associate Justice Erlinda P. Uy, the point of my dissent pertains to the ponencia's dismissal of Sumisetsu's appeal for its failure to file a motion for reconsideration or a motion for new trial of the Court in Division's Amended Decision before filing its Petition for Review before the Court En Banc ,citing Asiatrust Development Bank, Inc. vs. Commissioner of Internal Revenue/Commissioner of Internal Revenue vs. Asiatrust Development Bank, Inc. (Asiatrust case) . 1 According to the ponencia ,in so far as Sumisetsu is concerned, the Amended Decision has attained finality and correspondingly, Sumisetsu may no longer question the merits of the case before the Court En Banc . On this point, I wish to reiterate the disquisition I made in my Concurring and Dissenting Opinion in the consolidated cases of Commissioner of Internal Revenue vs. Fort Bonifacio Development Corporation and Fort Bonifacio Development Corporation vs. Commissioner of Internal Revenue 2 anent the requirement to file a motion for reconsideration of an amended decision: "A careful perusal of the Asiatrust case reveals that the Supreme Court, in declaring that a motion for reconsideration of an amended decision is a condition precedent to an appeal to the Court En Banc ,is confined to its finding that the CIR failed to file a motion for reconsideration of the Court in Division's amended decision, which granted an entirely new relief in favor of Asiatrust. The procedural propriety of Asiatrust in filing a motion for reconsideration of the amended decision is not an issue resolved therein. Interestingly, the Asiatrust case cites CE Luzon Geothermal Power Company, Inc. vs. Commissioner of Internal Revenue (CE Luzon case) where the Supreme Court did not declare as fatal the non-filing by CE Luzon of a motion for reconsideration of the amended decision which increased the amount of refund granted in favor of CE Luzon from P14 Million to P17 Million. The facts of the case (which are similar to the present case) reveal that CE Luzon directly appealed the Court in Division's amended decision before the Court En Banc even as it remained unsatisfied with the increased amount of refund granted in its favor [in the amended decision]. Truth to tell, the Supreme Court , despite CE Luzon's non-filing of a motion for reconsideration of the Court in Division's amended decision before filing an appeal with the Court En Banc , proceeded to rule on the substantive aspect of CE Luzon's claim .On the other hand, with regard to the CIR who filed a motion for reconsideration of the Court in Division's amended decision, the Supreme Court ruled that the same does not constitute a second motion for reconsideration since, in so far as the CIR is concerned ,the amended decision which modified and increased CE Luzon's entitlement to a refund or tax credit certificate, is a different decision which is the proper subject of a motion for reconsideration on the part of the CIR. The pronouncement of the Supreme Court is quoted hereunder: AcICHD 'At the outset, the Court deems it proper to address CE Luzon's claim that the CIR filed a "second" motion for reconsideration of the CTA Division's January 19, 2010 Amended Decision .Considering that a second motion for reconsideration is a prohibited pleading and, thus, did not toll the period to file an appeal, CE Luzon maintained that the June 24, 2009 Decision had long become final and executory. Under Section 3, Rule 14 of the Revised Rules of the Court of Tax Appeals, an amended decision is issued when there is any action modifying or reversing a decision of the CTA En Banc or in Division. Pursuant to these parameters, it is clear that the CIR's motions for partial reconsideration i.e. ,(a) motion for partial reconsideration of the June 24, 2009 Decision; and (b) motion for partial reconsideration of the January 19, 2010 Amended Decision assailed separate and distinct decisions that were rendered by the CTA Division. Notably, its amended decision modified and increased CE Luzon's entitlement to a refund or tax credit certificate in the amount of 17,277,938.47. Essentially, it was therefore a different decision and, hence, the proper subject of a motion for reconsideration anew on the part of the CIR .Thus, CE Luzon's procedural objection must fail.' (Boldfacing supplied) From the foregoing, it is clear that the pronouncement in the Asiatrust case should not be construed in a way where the rule against the filing of a second motion for reconsideration is nullified. Note should be made that Section 3, Rule 14 of the Revised Rules of the Court of Tax Appeals ("RRCTA") merely specifies the proper 'denomination' of the Court's action modifying or reversing a previously issued Decision. Thus, the provision reads: caITAC 'SEC. 3. Amended Decision . Any action modifying or reversing a decision of the Court en banc or in Division shall be denominated as Amended Decision .' (Boldfacing supplied) The fact that an amended decision is eventually issued does not necessarily deviate from its nature, which may in certain instances, be strictly a mere resolution of a motion for reconsideration .If the amended decision results from a re-evaluation of the parties' respective positions which the Court originally rejected but which it eventually considered as meritorious (in whole or in part),I submit that a second motion for reconsideration of the amended decision is unwarranted. To allow a second motion for reconsideration raising the same ground which the amended decision already considered would render the proscription against a second Motion for Reconsideration meaningless even as it would result to unnecessary delay in the disposition of cases. Section 7, Rule 15 of the RRCTA is clear on this aspect, viz. : 'SEC. 7. No second motion for reconsideration or new trial . No party shall be allowed to file a second motion for reconsideration or for new trial or decision, final resolution or order.' Parenthetically, it would be inconsistent to the concept of speedy determination of controversies to allow much more require a party litigant to rehash, amplify or recycle in a second Motion for Reconsideration matters and arguments, which s/he had already presented in Court and which, necessarily have been considered in the amended decision. After all, the movant should have embodied in the first motion for reconsideration all supporting arguments relative to the assailed original decision pursuant to Section 3, Rule 15 of the RRCTA." (Citations omitted) Relative to Sumisetsu's motion for reconsideration and eventual filing of a Petition for Review before this Court En Banc ,records disclose the following: September 22, 2014 Court in Division promulgated a Decision partially granting the Petition for Review of Sumisetsu by ordering the CIR to refund in Sumisetsu's favor the amount of Php6,155,193.95; 3 October 14, 2014 Sumisetsu filed its Omnibus Motion (1. For Partial Reconsideration of the Decision dated 22 September 2014; 2. To Permit Presentation of Evidence with Respect to the Attached Documents; and 3. To Admit into Evidence and Consider for Purposes of Resolving this Motion the Attached Documents). December 19, 2014 the Court in Division issued a Resolution granting, inter alia ,Sumisetsu's Motion to Permit Presentation of Evidence with Respect to the Attached Documents, and holding in abeyance Sumisetsu's Motion for Partial Reconsideration of the Decision dated 22 September 2014, and To Admit into Evidence and Consider for Purposes of Resolving this Motion the Attached Documents; 4 TAIaHE October 6, 2015 the Court in Division promulgated the assailed Amended Decision partially granting Sumisetsu's Omnibus Motion thereby modifying its September 22, 2014 Decision by ordering the CIR to refund in Sumisetsu's favor the increased amount of Php6,349,500.15 ; November 9, 2015 Sumisetsu filed its Petition for Review before the Court En Banc which was docketed as CTA EB No. 1370; Based from the above-mentioned factual antecedents, I submit that Sumisetsu correctly invoked the jurisdiction of the Court En Banc by filing the present Petition for Review to assail the Amended Decision of the Court in Division. Sumisetsu clearly observed the condition precedent required under Sec. 1, Rule 8 of RRCTA 5 when it filed its Omnibus Motion (1. For Partial Reconsideration of the Decision dated 22 September 2014; 2. To Permit Presentation of Evidence with Respect to the Attached Documents; and 3. To Admit into Evidence and Consider for Purposes of Resolving this Motion the Attached Documents) within fifteen (15) days from its receipt of the Court in Division's Decision dated September 22, 2014. The Amended Decision already considered the arguments raised in Sumisetsu's Omnibus Motion, including the additional documents presented by Sumisetsu. Sumisetsu may not file another Motion for Reconsideration to assail the Amended Decision since the Court in Division already made a favorable action on its Omnibus Motion, albeit not in the total amount as prayed for in its Petition for Review before the Court in Division. Clearly, the filing of a motion for reconsideration by Sumisetsu assailing the Court in Division's Amended Decision would have been in the nature of a second motion for reconsideration, the filing of which is prohibited under Section 7, Rule 15 of the RRCTA . Notwithstanding Sumisetsu's correct invocation of the Court En Banc's jurisdiction by filing its Petition for Review, Sumisetsu failed to present compelling reason for the Court to modify the assailed Amended Decision. Hence, the Petition for Review filed by Sumisetsu in CTA EB No. 1370 must be denied for lack of merit. All told, I vote to DENY the CIR's Petition for Review and Supplemental Petition for Review and Sumisetsu's Petition for Review, both for lack of merit. MINDARO-GRULLA , J.,concurring and dissenting opinion : I concur with the ponencia dismissing Sumisetsu Philippines, Inc. (Sumisetsu)'s petition for review. It must be taken into account that Sumisetsu filed its petition for review relative to the Court Third Division's Amended Decision. The proper remedy to assail the Division's Amended Decision is a Motion for Reconsideration or a Motion for New Trial, and not a Petition for Review before the Court En Banc .It is noted that an amended decision 1 is an entirely new decision, modifying or reversing the previous decision, and the review of cases in the Court En Banc must be preceded first by a motion for reconsideration or for a new trial, to wit: ICHDca "RULE 8 PROCEDURE IN CIVIL CASES SECTION 1. Review of cases in the Court en banc . In cases falling under the exclusive appellate jurisdiction of the Court en banc ,the petition for review of a decision or resolution of the Court in Division must be preceded by the filing of a timely motion for reconsideration or new trial with the Division." Availing of the wrong remedy, the prescriptive period to appeal on the assailed Amended Decision did not toll, thus, making it final and executory in the case of Sumisetsu. However, with all due respect to my esteemed colleague, the Honorable Associate Justice Erlinda P. Uy, even on the assumption that the Petition for Review filed by Sumisetsu is proper, it must be given scant consideration. Sumisetsu mainly relies on the Independent Certified Public Accountant (ICPA) Report that it has complied with all the requirements under Section 112, in relation to Section 106 (A) (2) (A) of the National Internal Revenue Code (NIRC) of 1997. It argues that the ICPA Report clearly provided that it did not claim the unutilized input VAT for 2009 as credits against its output VAT liability for the subsequent quarters of taxable year 2010 and 2011. It also alleges error on the part of the Division in disregarding as evidence the photocopy of PEZA registration of Miyano Philippines, Inc. (Miyano) and failure to submit the Securities and Exchange Commission Certification of Non-registration and Articles/Certificate of Foreign Incorporation/Association/Registration of Misuzu Erie Corporation (Misuzu) and Japan Create Co. Ltd., (Japan Create) to prove that these companies are qualified for zero-rating. Sumisetsu asserts that the submission of a mere photocopy does not strip Miyano of its benefit as a PEZA-registered entity, and the rule on exception laid down in Section 3, Rule 130 of the Rules of Court will apply in the presentation of a photocopy of Miyano's PEZA certification. Sumisetsu insists that based on ICPA Report, both addresses of Misuzu and Japan Create are in Japan, thereby obviously asserting that these companies are doing business outside the Philippines. cDHAES In the case of First Lepanto Taisho Insurance Corporation v. Commissioner of Internal Revenue , 2 the CTA En Banc explained that: "[t]he report submitted by the ICPA is but a tool or guide to aid the Court in the resolution of the case. The determination of the merit or the probative value of such report is still within the province of the Court. Secondly, the Court is free to adapt (sic) or disregard, completely or partially, the findings of the ICPA. It can even make its own audit and evaluation of the documents pertinent to the case presented during the trial in order to intelligently resolve the conflict brought before it." At this juncture, this Court echoes the ruling of the Supreme Court that "it is fundamental that the findings of fact by the CTA in Division are not to be disturbed without any showing of grave abuse of discretion considering that the members of the Division are in the best position to analyze the documents presented by the parties." 3 As to the photocopy of Miyano's PEZA Certification that was rejected by the Division as evidence to prove its PEZA registration, under the best evidence rule, the original document must be produced whenever its contents are the subject of inquiry. 4 The rule is encapsulated under Section 3, Rule 130 of the Rules of Court, as follows: "Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office." When the original as best evidence is not available, secondary evidence may be allowed to be presented in Court, but before a party is allowed to adduce secondary evidence to prove the contents of the original, the offeror must prove the following: (1) the existence or due execution of the original; (2) the loss and destruction of the original or the reason for its non-production in court; and (3) on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. 5 In the case at bar, Sumisetsu must first present to the Court proof of loss or other satisfactory explanation for the non-production of the original PEZA Certification of Miyano. Sumisetsu failed to do so. Even so, what was presented is a mere photocopy, unauthenticated by its executor. In the absence of the original document, the next best evidence to prove the contents of the document is a certified true copy of such. Thus, the photocopied PEZA Certification is in violation of Rule 130 of the Rules of Court, even if his Court would consider it as secondary evidence. As to mere assumption that Misuzu and Japan Create are non-resident foreign corporation doing business outside the Philippines because of their addresses, the Supreme Court in the case of Accenture, Inc. vs. Commissioner of Internal Revenue ("the Accenture Case") , 6 ruled: TCAScE "Accenture argues that based on the documentary evidence it presented, it was able to establish the following circumstances: 1. The records of the Securities and Exchange Commission (SEC) show that Accenture's clients have not established any branch office in which to do business in the Philippines. 2. For these services, Accenture bills another corporation, Accenture Participations B.V. (APB),which is likewise a foreign corporation with no "presence in the Philippines." 3. Only those not doing business in the Philippines can be required under BSP rules to pay in acceptable currency for their purchase of goods and services from the Philippines. Thus, in a domestic transaction, where the provider and recipient of services are both doing business in the Philippines, the BSP cannot require any party to make payment in foreign currency. xxx xxx xxx Accenture failed to discharge this burden. It alleged and presented evidence to prove only that its clients were foreign entities. However, as found by both the CTA Division and the CTA En Banc ,no evidence was presented by Accenture to prove the fact that the foreign clients to whom petitioner rendered its services were clients doing business outside the Philippines . As ruled by the CTA En Banc , the Official Receipts, Intercompany Payment Requests, Billing Statements, Memo Invoices-Receivable, Memo Invoices-Payable, and Bank Statements presented by Accenture merely substantiated the existence of sales, receipt of foreign currency payments, and inward remittance of the proceeds of such sales duly accounted for in accordance with BSP rules, all of these were devoid of any evidence that the clients were doing business outside of the Philippines ." (Italics in the original; Underlining supplied.) Applying the foregoing, the documents presented in Accenture Case were not enough to establish that an entity is a non-resident foreign corporation doing business outside the Philippines, more so with the mere presumption based on address. While Sumisetsu alleges that its clients are non-resident foreign corporations, still the Court cannot give weight to such bare allegation. 7 Mere allegations are not equivalent to proof. 8 To reiterate: ASEcHI "A taxpayer claiming a tax credit or refund has the burden of proof to establish the factual basis of that claim. Tax refunds, like tax exemptions, are construed strictly against the taxpayer." 9 To emphasize, the recent case promulgated by this Court is in point, to wit: "Time and again, We have consistently held in a plethora of cases 10 that for an entity to be considered a non-resident foreign corporation doing business outside the Philippines, the said entity must be supported at the very least by the Certification of Non-Registration of Corporation/Partnership duly issued by the SEC and proof of incorporation or registration in a foreign country ( e.g. ,Certificate of Incorporation, Memorandum and Articles of Association, and Certificate of Registration) or any other equivalent document." (Emphases in the original.) Likewise, the petition for review filed by the CIR must be dismissed. It must be noted that the CIR never questioned the ruling of the Division as to her Motion for Reconsideration being a pro forma in her Petition for Review. The Rule 11 is settled that a motion, being a pro forma and a mere scrap of paper, does not toll the running of the reglementary period thus making the assailed decision final and executory, with respect to the CIR as well. Considering the wrong remedy of Sumisetsu, and the filing of a pro forma Motion for Reconsideration on the part of the CIR, the assailed Amended Decision has already attained finality. Without any case to appeal before this Court, it is but proper to dismiss both petitions for lack of jurisdiction. WHEREFORE, I vote to DISMISS both Petitions for Review filed by the Commissioner of Internal Revenue in CTA EB No. 1261 and Sumisetsu Philippines, Inc. in CTA EB No. 1370 for lack of jurisdiction. Footnotes 1. EB Docket (CTA EB No. 1261),pp. 1 to 19. 2. EB Docket (CTA EB No. 1370),pp. 7-22. 3. Penned by Associate Justice Lovell R. Bautista, and concurred in by Associate Justice Esperanza R. Fabon-Victorino. Associate Justice Ma. Belen M. Ringpis-Liban was on leave. EB Docket (CTA EB No. 1261),pp. 22 to 55. 4. Penned by Associate Justice Lovell R. Bautista, and concurred by Associate Justice Esperanza R. Fabon-Victorino and Associate Justice Ma. Belen M. Ringpis-Liban; EB Docket (CTA EB No. 1261),pp. 56 to 59. 5. EB Docket (CTA EB No. 1261),pp. 113 to 126. 6. Penned by Associate Justice Lovell R. Bautista, and concurred by Associate Justice Esperanza R. Fabon-Victorino and Associate Justice Ma. Belen M. Ringpis-Liban. EB Docket (CTA EB No. 1261),pp. 129 to 135. 7. Supra .EB Docket (CTA EB No. 1261),pp. 136 to 139. 8. EB Docket (CTA EB No. 1370),pp. 7 to 26. 9. EB Docket (CTA EB No. 1370),pp. 29 to 62. 10. EB Docket (CTA EB No. 1370),pp. 63 to 69. 11. Division Docket (CTA Case No. 8374) Vol. 2, pp. 1084 to 1117; EB Docket (CTA EB No. 1261),pp. 22 to 55; EB Docket (CTA EB No. 1370),pp. 29 to 62. 12. Division Docket (CTA Case No. 8374) Vol. 3, pp. 1120 to 1125. 13. Division Docket (CTA Case No. 8374) Vol. 3, pp. 1128 to 1138. 14. EB Docket (CTA EB No. 1261),pp. 56 to 59; Division Docket (CTA Case No. 8374) Vol. 3, pp. 1175 to 1178. 15. EB Docket (CTA EB No. 1261),pp. 1 to 19. 16. EB Docket (CTA EB No. 1261),pp. 64 to 65. 17. EB Docket (CTA EB No. 1261),pp. 66 to 72. 18. EB Docket (CTA EB No. 1261),pp. 79 to 80. 19. EB Docket (CTA EB No. 1261),pp. 81 to 82. 20. EB Docket (CTA EB No. 1261),pp. 85 to 100. 21. EB Docket (CTA EB No. 1261),pp. 105 to 106. 22. EB Docket (CTA EB No. 1261),pp. 108 to 109. 23. Division Docket (CTA Case No. 8374) Vol. 3, pp. 1435 to 1436. 24. EB Docket (CTA EB No. 1370),pp. 63 to 69; Division Docket (CTA Case No. 8374) Vol. 3, pp. 1442 to 1448. 25. Division Docket (CTA Case No. 8374) Vol. 3, pp. 1451 to 1455. 26. Division Docket (CTA Case No. 8374) Vol. 3, pp. 1462 to 1469. 27. EB Docket (CTA EB No. 1370),pp. 1 to 4. 28. EB Docket (CTA EB No. 1370),p. 6. 29. November 8, 2015 fell on a Sunday. 30. EB Docket (CTA EB No. 1370),pp. 7 to 26. 31. EB Docket (CTA EB No. 1370),pp. 7 to 22. 32. EB Docket (CTA EB No. 1261),p. 112; Division Docket (CTA Case No. 8374) Vol. 3, p. 1471. 33. Division Docket (CTA Case No. 8374) Vol. 3, pp. 1473 to 1476. 34. EB Docket (CTA EB No. 1261),pp. 113 to 126. 35. EB Docket (CTA EB No. 1261),pp. 144 to 145. 36. EB Docket (CTA EB No. 1261),pp. 146 to 154. 37. EB Docket (CTA EB No. 1261),pp. 157 to 162. 38. EB Docket (CTA EB No. 1261),pp. 165 to 166. 39. EB Docket (CTA EB No. 1261),pp. 167 to 169. 40. EB Docket (CTA EB No. 1261),pp. 172 to 197. 41. EB Docket (CTA EB No. 1261),pp. 201 to 202. 42. In the assailed Amended Decision dated October 6, 2015, the Court in Division modified its Decision dated September 22, 2014 and increased the amount of tax refund/credit from P6,155,193.95 to P6,349,500.15. 43. CIR's Petition for Review ,EB Docket (CTA EB No. 1261),p. 14. 44. CIR's Supplemental Petition for Review ,EB Docket (CTA EB No. 1261),p. 115. 45. EB Docket (CTA EB No. 1370),p. 11. 46. AN ACT AMENDING SECTIONS 27, 28, 34, 106, 107, 108, 109, 110, 111, 112, 113, 114, 116, 117, 119, 121, 148, 151, 236, 237 AND 288 OF THE NATIONAL INTERNAL REVENUE CODE OF 1997, AS AMENDED, AND FOR OTHER PURPOSES. 47. Silicon Philippines, Inc. vs. Commissioner of Internal Revenue, etseq. ,G.R. Nos. 184360 & 184361, and 184384, February 19, 2014. 48. Refer to Commissioner of Internal Revenue vs. San Roque Power Corporation, etseq. ,GR. Nos. 187485, 196113 & 197156, February 12, 2013. 49. Exhibit "I". 50. CBK Power Company Limited vs. Commissioner of Internal Revenue, G.R. Nos. 198729-30, January 15, 2014. 51. G.R. No. 207112, December 8, 2015. 52. Division Docket (CTA Case No. 8374) Vol. 1, pp. 6 to 21. 53. Supra . 54. G.R. No. 205055, July 18, 2014, 730 SCRA 242. 55. Eastern Assurance and Surety Corporation vs. Con-Field Construction and Development Corporation ,G.R. No. 159731, April 22, 2008. 56. At page 23 to 24 of the assailed Decision. 57. Exhibit "KK". 58. G.R. No. 161330, February 20, 2007. 59. G.R. Nos. 196596, 198841, and 198941, November 9, 2016. 60. 386 Phil. 719 (2000). 61. CIR's COMMENT (ON PETITIONER'S FORMAL OFFER OF EVIDENCE) ,Division Docket (CTA Case No. 8374) Vol. 3, pp. 1426 to 1428. 62. Division Docket (CTA Case No. 8374) Vol. III, pp. 1451 to 1455. 63. Collector of Internal Revenue vs. CTA, et al. ,G.R. No. L-14902, October 31, 1960. 64. G.R. No. 141667, July 17, 2006, citing Cruz v. Villaluz ,G.R. No. L-41684, February 21, 1979, 88 SCRA 506; People v Rodriguez ,G.R. No. 32657, September 1, 1992, 213 SCRA 171; Marina Properties Corp. v CA ,G.R. No. 125447, August 14, 1998, 294 SCRA 273. 65. G.R. No. 110801, December 8, 1995. 66. G.R. Nos. 201530 and 201680-81, April 19, 2017. 67. G.R. Nos. 200841-42, August 26, 2015, 768 SCRA 269, 275. DEL ROSARIO, P.J.,concurring and dissenting opinion: 1. G.R. Nos. 201530 and 201680-81, April 19, 2017. 2. CTA EB Nos. 1410 & 1414, July 11, 2017. 3. CTA EB 1261 Rollo ,pp. 22-55; CTA EB 1370 Rollo ,pp. 29-62. 4. CTA EB 1261 Rollo ,pp. 56-59. 5. Section 1. Review of cases in the Court en banc. In cases falling under the exclusive appellate jurisdiction of the Court en banc, the petition for review of a decision or resolution of the Court in Division must be preceded by the filing of a timely motion for reconsideration or new trial with the Division. (Sec. 1, Rule 8 of RRCTA) MINDARO-GRULLA, J.,concurring and dissenting opinion: 1. Rule 14, Revised Rules of Court of Tax Appeals (A.M. No. 05-11-07-CTA): SEC. 3. Amended decision. Any action modifying or reversing a decision of the Court en banc or in Division shall be denominated as Amended Decision. 2. CTA EB No. 563, March 1, 2011, cited in the case of Philippine National Bank vs. Commissioner of Internal Revenue ,CTA EB No. 1129, August 24, 2015. 3. Republic of the Philippines, represented by the Commissioner of Internal Revenue v. Team (Phils.) Energy Corporation (formerly Mirant (Phils.) Energy Corporation) ,G.R. No. 188016, January 14, 2015 citing Sea-Land Service, Inc. v. Court of Appeals ,G.R. No. 122605, April 30, 2001, 357 SCRA 441, 445-446, cited in Philippine National Bank, Ibid . 4. Herrera, REMEDIAL LAW, Vol. V (1999 ed.),p. 166, cited in Country Bankers Insurance Corporation vs. Antonio Lagman ,G.R. No. 165487, July 13, 2011. 5. Rule 130, Section 5. When original document is unavailable. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. 6. G.R. No. 190102, July 11, 2012. 7. Sitel Philippines Corporation (Formerly Clientlogic Philippines, Inc.) vs. Commissioner of Internal Revenue ,CTA Case No. 7623, March 3, 2010. 8. Ibid. ,citing Philippine National Bank vs. Court of Appeals ,266 SCRA 139. 9. Accenture, Supra note 17. 10. Emerson Electric (Asia) Limited-ROHQ vs. Commissioner of Internal Revenue ,CTA Case No. 8532, October 19, 2015; Deutsche Knowledge Services PTE.,LTD. vs. Commissioner of Internal Revenue ,CTA Case Nos. 8510, 8546 & 8595, October 13, 2015; Deutsche Knowledge Services PTE.,LTD. vs. Commissioner of Internal Revenue ,CTA Case No. 8300, July 10, 2015; Galileo Asia, LLC-Philippine Branch vs. Commissioner of Internal Revenue ,CTA Case No. 8419, June 10, 2015; Chevron Holdings, Inc. vs. Commissioner of Internal Revenue ,CTA Case No. 8436, October 22, 2014. 11. Rule 37, Revised Rules of Court: Sec. 2. xxx xxx xxx A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal .(Underlining Supplied.)