Abdul Malik Ishak J:

This case came up by way of a civil appeal from the decision of the learned Magistrate, Magistrate's Court, Johor Bahru, on a question of law. The learned Magistrate allowed an application for summary judgment by the Government of Malaysia ("respondent") against Teng Chua Huat @ Teng Kwee Chua ("appellant") for the sum of RM5,180.12 being real property gains taxes owed by the appellant to the respondent for the 1982 year of assessment and the order has since been extracted as reflected at pp 4 and 5 of the appeal record. Being aggrieved the appellant now appeals to the High Court.

The brief facts may be stated as follows. The appellant's father by the name of Lee Teng Seng @ Teng Ting Seng held, at one time, 1/2 undivided share in a property known as H.S (D) 8912, Lot 7709, Bandar Johor Bahru and he died on 10 December 1967. On 9 January 1972, the letters of administration of the estate of the appellant's late father were extracted. On 21 December 1978, the appellant's late father's 1/2 undivided share in that property was transmitted to the appellant and the appellant's mother as administrator and administratrix respectively of the estate of the deceased. On 23 January 1980, the appellant's late father's property was transferred to the appellant, the appellant's mother by the name of Low Leng Eng, the appellant's brother by the name of Teng Boon Chua, and the appellant's sister by the name of Teng Ah Moi and these personalities held the property as beneficiaries in equal shares. On 20 June 1981, the appellant and the three other beneficiaries sold the property to Kah Yew Realty Sdn Bhd for the sum of RM118,188. On 5 October 1991, the appellant was assessed the sum of RM4,709.20 being real property gains tax for the disposal of his share in the property as reflected in the statement of claim at p 9 of the appeal record paras. 3 and 4 thereof. In arriving at this assessment, the respondent took into account the date of the acquisition to be 1970 and the date of the acquisition price to be the market value in 1970 which was RM24,000 - this was the market price on 1 January 1970.

The notice of appeal that was dated 24 January 1998 as seen at pp 1 and 2 of the appeal record carried with it three questions of law for this Court to determine and they were as follows:

(1) Whether the notice of assessment that took into account the year 1970 as the date of acquisition of the property and not the year 1980 was bad and wrong in law as it failed to comply with the principles enunciated in the case of Director-General of Inland Revenue v. Ooi Guan Hoe[1997] 3 MLRH 820, [1986] 2 MLJ 385?

(2) Whether the certificate issued by the respondent and not by the Director General runs foul of s 48 (1) of the Real Property Gains Tax Act 1976

(3) Whether the respondent's cover slip form (borang daftar kulit) shows the date of posting of the notice of assessment to the appellant?

Before me, the appellant abandoned issues (2) and (3) and argued on issue (1) and also raised a fresh issue, which was worded thus:

Whether the appellant in raising and relying on the case of Director-General of Inland Revenue v. Ooi Guan Hoe [supra] had in fact raised a triable issue?

In this judgment, I do not propose to examine issues (2) and (3) as they have been abandoned by the appellant. I need only to consider the remaining two issues together as they are related to one another.

The First Issue And The Fresh Issue

This calls for an examination of the case of Director-General of Inland Revenue v. Ooi Guan Hoe [supra], a case decided by the High Court of Penang by his Lordship Mohamed Dzaiddin J (now FCJ). That case was an appeal by the Revenue by way of a case stated against the decision of the Special Commissioners of Income Tax under para 34, Sch. 5 of the Income Tax Act 1967 which was made on 28 April 1983 on one ground and that was that it was wrong in law. I need to quote in extenso the judgment of Mohamed Dzaiddin J (now FCJ) in that case in or