The provisions of a double taxation agreement prevail over domestic tax laws regarding international traffic profits.

[1] This is the applicant's judicial review application seeking inter alia the following reliefs:

(a) an order for certiorari to quash the respondent's decision in raising the notices of additional assessment for the years of assessment 2012, 2013 and 2014 with penalty all dated 23 March 2017 and communicated to the applicant on the same date on the grounds that the said decision of the respondent was illegal, unlawful and/or in excess of authority and had been irrational and/or unreasonable;

(b) a declaration that:

(i) The payment paid by the applicant to Orange Rederiet Aps ("ORAPS") are not subject to withholding tax under s 4A(iii) read with s 109B(1)(c) of the Income Tax Act 1967 (" ITA 1967") as such payments are only taxable in Denmark by virtue of Article IX of the Malaysia- Denmark Double Taxation Agreement (which is gazette vide PU(A) 154/2004) ("Malaysia-Denmark DTA"); and

(ii) as such, there is no basis for the respondent to disallow the deduction claimed by the applicant for the payments made to the ORAPS pursuant to s 39(1)(j) of the ITA 1967.

(c) a declaration that the respondent is bound by and shall give effect to the Malaysian-Denmark DTA which states that profits derived by an enterprise of a Contracting States ie from the operation of ships in international traffic shall be taxable only in Denmark;

(d) a declaration that the respondent is bound and shall give effect to the decisions of the Court of Appeal in Ketua Pengarah Hasil Dal am Negeri v. Damco Logistics Malaysia Sdn Bhd (Rayuan Sivil: W-01-424-11) which affirmed the decision of this Honourable Court that the provisions of the Malaysia-Denmark DTA shall prevail over provisions of ITA 1967 in the event of a conflict, and the subsequent decision of the Special Commissioners of Income Tax and this Honourable Court Maersk Malaysia Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2013] MSTC 10-046 and Thompson Reuters Global Resources v. Ketua Pengarah Hasil Dalam Negeri [2015] MSTC 10-048 which applied the decision of the Court of Appeal in Demco Logistic Malaysia (supra);

(e) a declaration that the respondent is bound by and shall give effect to the decisions of the Special Commissioners of Income Tax, this Honourable Court and the Court of Appeal in Damco Logistics (supra), Maersk Malaysia (supra) and Thompson Reuters (supra) above which held that the business profits of the taxapayers were only taxable in their home countries and not in Malaysia pursuant to the applicable double taxation agreements.

The Salient Facts

[2] The relevant facts in this application are the following:

(i) the applicant is a company with its business among others are the operation and chartering of service vessels in offshore oil and gas industries and also act as agent of the Swire Pacific Offshore Group of companies within Malaysia and its adjacent waters.

(ii) the applicant also had dealings with Orange Rederiet Aps ('ORAPS'), a company within the Swire Group, by providing services within Malaysia and international waters.

(iii) On 6 April 2016, Lembaga Hasil dalam Negeri conducted a tax audit exercise on the applicant.

(iv) On 14 October 2016, the respondent informed the applicant that payment collected and remitted to ORAPS should have been subjected to withholding tax under subsection 4A(iii) of the Income Tax Act 1967 ( ITA 1967). The respondent then informed the applicant that the deduction for payment made to ORAPS is disallowed pursuant to subsection 39(1)(j) of 1967.

(v) The respondent thereafter issued the impugned notices of additional assessment for Year Assessments 2012, 2013 and 2014.

(vi) On 29 December 2016, on a without prejudice basis, ORAPS through the applicant has paid to the respondent the withho