Gunn Chit Tuan SCJ:

[1] The Department of Inland Revenue claimed that Chong Woo Yit (the taxpayer) was justly and truly indebted to the Government of Malaysia in the sum of RM114,749.03 being additional income tax which was raised on him as follows:

[2] Notices of assessment for the said years of assessment were duly posted in March 1985 to the taxpayer's last known address and was deemed to have been served on him under s 145(2)(c) of the Income Tax Act 1967.

[3] As the taxpayer failed to pay the said sum of RM99,352.54 within 30 days after service of the notices of assessment, late payment increases were imposed in accordance with ss 103(4), 103(5), and/or 103(5A) of the Income Tax 1967 as follows:

[4] The total sum claimed was therefore RM114,749.03 and under s 103(1) of the said Act, tax was payable on the service of the notice of assessment whether or not that person appeals against the assessment.

[5] It was averred in the statement of claim that under s 106 of the said Act, any tax due and payable may be recovered by civil proceedings as a debt due to the Government. As the taxpayer had failed to pay the tax and penalty mentioned above, the Department of Inland Revenue filed a summons-in-chambers on 3 November 1986, to apply for leave to enter summary judgment against the taxpayer for RM112,035.79 being the balance of the amount in the writ of summons, together with interest at the rate of 8% per annum from the date of judgment to the date of payment and costs, less RM2,713.33 paid by the taxpayer in the intervening period.

[6] The grounds for the said application were that under s 142(1) of the Income Tax Act a certificate signed by the Director-General of Inland Revenue giving the name and address of the taxpayer and the amount of tax due from him shall be sufficient evidence of the amount so due and sufficient authority for the Court to give judgment for that amount in a suit under s 106 of the said Act. Moreover, it was stated that there was no defence to the suit.

[7] After hearing the said summons-in-chambers the learned Senior Assistant Registrar granted leave to enter summary judgment for the amount claimed by the Revenue, and the taxpayer appealed against that decision.

[8] Before the learned Judge in the High Court it was contended by the defence that additional assessments made after a lapse of twelve years contravened s 91 of the Income Tax Act and was statute barred. Secondly, it was argued that summary judgment under O 14 r 1(2)(b) of the Rules of the High 1980, was not available because the Revenue's claim was based on an allegation of fraud. Senior Federal Counsel for the Revenue contended that the additional sums were properly made in this case under s 91(3) of the said Act, but before the learned Judge, he however refrained from specifying whether the Director-General had made the assessment because of fraud, wilful default or negligence. In support of his contention that limitation did not apply, Senior Federal Counsel cited the following passage from the Federal Court's judgment in Arumugam Pillai v. Govt. of Malaysia, [1976] 2 MLJ 72 at p 73:

In our judgment, limitation as such does not apply to any proceedings by the Government for the recovery of any tax. This would seem clear from the proviso to s 33(1) of the Limitation Ordinance 1953. Reading s 91 of the Income Tax Act 1967 as a whole it would seem clear that, quite apart from any form of fraud, the words "within twelve years after its expiration" are irrelevant where there has been any wilful default on the part of a taxpayer in disclosing part of his income for any particular year of assessment.