Low Hop Bing J:

Application

This is an application by the applicant for leave to commence proceedings under O. 53 r. 3 of the Rules of the High Court 1980 for an order of certiorari to quash and set aside the notice of assessment in Form J dated 1 August 2003 issued by the first respondent ie, the Director General of Inland Revenue to the applicant for the income tax year of assessment 1998 (& quot;the impugned notice of assessment& quot;).

This application is premised on the ground that the impugned notice of assessment is invalid in that it contains an error of law on the face of it.

I have directed that this ex parte application be heardinter partes.

Background

This has been stated in the applicant's affidavit in support filed herein and must be treated as mere allegations of fact and does not in any way constitute a specific finding of fact by me.

By a sale and purchase agreement dated 27 September 1991, the plaintiff bought three pieces of land viz. Lots 271, 275 and 315 in the mukim of Cheng in the state of Melaka (& quot;the Cheng land& quot;) at the price of RM2,771,423.33 for the purpose of setting up an integrated steel mill, against which the local residents there had protested. Consequent thereto, the applicant built the steel mill on another piece of land in Ayer Keroh, Melaka (& quot;the Ayer Keroh land& quot;).

On 5 March 1997, vide three agreements, the applicant disposed of the Cheng land at RM9,489,577.86 (& quot;the disposal& quot;).

The applicant had submitted to the Inland Revenue Board the relevant notification in Form CKHT1 in respect of real property gains tax for the disposal.

Subsequently, the first respondent issued the impugned notice of assessment for the purpose of subjecting to income tax the gains accrued from the sale thereof.

On 17 January 2002, the applicant wrote to the first respondent stating that the gains on the disposal of the Cheng land should not attract income tax liability.

On 20 August 2003, the applicant wrote another letter to the first respondent requesting the first respondent to review the decision.

On 29 August 2003, the applicant filed both a notice of appeal in Form Q (& quot;the Form Q notice of appeal& quot;) and this application simultaneously.

Respondents Objection

In objecting to the application herein, Cik Suzana bt Atan, learned senior federal counsel, submitted that the application is frivolous and vexatious and an abuse of the process of the court on the ground that there is an alternative remedy of appeal under s. 99 of the Income Tax Act 1967 (& quot;s. 99& quot;), which the applicant has already invoked by filing the Form Q notice of appeal.

It was further stressed that there are no exceptional circumstances to grant leave for judicial review here; and that it would render futile the policy under the Income Tax Act 1967 which provides for an appeal to the Special Commissioners.

Another view taken for the respondent is that there is a duplicity of proceedings in view of this application and the appeal to the Special Commissioners.

Applicant's Response

En. Ahmad Mustafi bin Mohamad, learned counsel for the applicant, echoed the aforesaid ground in urging this court to grant leave for certiorari notwithstanding the filing of the Form Q notice of appeal. Support was sought inR Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 FC; and Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 CLJ 65FC.

He added that the mere availability of an appeal procedure will not automatically shut out an application for certiorari, as, according to him, the application herein is not frivolous or vexatious nor an abuse of the process of the court, as the alternative remedy of appeal to the Special Commissioners does not constitute a wholly adequate machinery for the just disposal of the complaint herein.

Decision Of The Court

Question For Determination

Having carefully considered the aforesai