Back
2021 MarsdenLR 3034
HIGH COURT SABAH & SARAWAK KUCHING
TSAI HEN FUI @ CHAI HEN FUI & ANOR – Appellant
Versus
KETUA PENGARAH HASIL DALAM NEGERI – Respondent
[Application For Judicial Review No: KCH-13NCVC-7/3-2021]
The court emphasized adherence to procedural rules in judicial review applications, particularly regarding time limits and the need to exhaust alternative remedies, dismissing the applications for lack of merit.
Headnote:(A) Income Tax Act 1967 – Section 99 – Judicial Review – Applicants sought leave for judicial review against notices of additional tax assessment and extension of time – Court found the 2nd Applicant's delay in filing was not justified; failure to comply with prescribed time renders application out of jurisdiction. – No exceptional circumstances or good reasons to warrant departure from procedural rules were established, following precedent. (Paras 8, 11, 19-22).
(B) Judicial Review – Leave application must demonstrate an arguable case; existence of alternative remedies can be grounds for dismissal of a JR application. (Paras 17-22).
Facts of the case: The Applicants challenged additional tax assessments issued by the Respondent and sought leave for a judicial review after failing to comply with necessary time frames.
Findings of Court: Dismissal of both applications for lack of merit and absence of justification for delay, with costs awarded.
Issues: The primary issues involved were the timeliness of the application and the justification for the delay in filing the judicial review.
Ratio Decidendi: The court reiterated the importance of adhering to procedural rules and the availability of alternative remedies under the Income Tax Act, which must be exhausted before pursuing a judicial review.
Result: Applications dismissed.
JUDGMENT
[1] This is an application for a Judicial Review (JR) made by the Applicants on 30 March 2021. The prayers sought are as follows:
1. that leave be granted to the 1st applicant to apply for judicial review against the respondent for the following reliefs:
(1) an order of certiorari to quash the 5 sets of Form JA notice of additional assessment dated 31 December 2020 issued by the respondent to the 1st applicant for the years of assessment 2000, 2006, 2011, 2012 and 2018 amounting to the total sum of RM1,555,949.39;
(2) alternatively, an order of prohibition to prohibit the respondent from taking any action to claim, demand, sue for or enforce the payment of the said sum of RM1,555,949.39 and any late payment penalty arising therefrom against the 1st applicant until the final determination of the 1st applicant's appeal to the Special Commissioners of Income Tax vide the 1st applicant's 5 sets of Form Q notice of appeal dated 27 January 2021 under s 99 of the Income Tax Act 1967 ;
(3) that the costs of the application be provided for;
(4) such further or other relief as this Honourable Court deems fit.
2. that an extension of time be granted to the 2nd applicant to make this application pursuant to O 53 r 3(7) Rules of 2012;
3. if prayer (2) above is granted, that leave be granted to the 2nd applicant to apply for judicial review against the respondent for the following reliefs:
(1) an order of certiorari to quash the 5 sets of Form JA notice of additional assessment dated 17 November 2020 issued by the respondent to the 2nd applicant for the years of assessment 2000, 2007, 2011, 2015 and 2018 amounting to the total sum of RM582,134.88;
(2) alternatively, an order of prohibition to prohibit the respondent from taking any action to claim, demand, sue for or enforce the payment of the said sum of RM582,134.88 and any late payment penalty arising therefrom against the 2nd applicant until the final determination of the 2nd applicant's appeal to the Special Commissioners of Income Tax vide the 2nd applicant's 5 sets of Form Q notice of appeal dated 14 December 2020 under s 99 of the Income Tax Act 1967 ;
(3) that the costs of the application be provided for;
(4) such further or other relief as this Honourable Court deems fit.
[2] The Application for a JR under O 53 of the Rule of 2021 (ROC 2021) involves two stages, namely the leave stage and the substantive stage.
[3] The matters before the Court are:
a) The extension of time to file JR applied by the 2nd Applicant only, and
b) The leave stage for both Applicants
The Application Of Extension Of Time By The 2nd Applicant
[4] The 2nd Applicant submitted that the delay in filing of JR is not inordinate and that the delay is just one (1) month.
[5] The 2nd Applicant relied on the following cases:
i) KCSB Konsortium Sdn Bhd v. Pengarah Tanah dan Galian Johor ;
ii) MenakaDeivarayan v. Pentadbir Tanah Daerah Bagan Datuk, Perak &Ors, [2021] 7 MLJ 232
In the case of P MaradeveranPeriasamy&Ors v. Suruhanjaya Pilihan Raya & Anor, [2019] 2 MLJ 70, it was held that whether or not to grant an extension of time under O 53 r 3(7) of the ROC 2012 is a matter of discretion and whether there exist "good reasons" for the delay in filing the JR. Having said that, whether or not there are "good reasons" given by the 2nd Applicant will be discussed below.
[6] The reasons of filing the JR out of time are stated in the Applicants' written submission vide Encl 13 as follows:
(1) The 2nd applicant had acted with promptitude and behaved sensibly and reasonably:
(a) He duly lodged his Form Q notice of appeal under s 99 of the ITA within the prescribed time of 30 days.
(b) He entered into an arrangement with the respondent to pay the tax assessed by monthly instalments of RM36,324.00.
(c) The respondent had expressed its willingness to negotiate with the 2nd applicant on this matter in the meantime. However, despite repeated follow-ups by the 2nd applicant's tax agents, Crowe Tax (Sarawak) Sdn Bhd, the respo
