The facts leading to this appeal may be shortly summarized as follows. On 16 March 1985, the Inland Revenue Department ("the Revenue") made additional assessments in respect of the appellant's (taxpayer) income for the previous years of assessments for the following amounts: Year of Assessment 1959 for additional tax of$20.04 Year of Assessment 1961 for additional tax of$15,301.60 Year of Assessment 1963 for additional tax of$1,831.95 Year of Assessment 1964 for additional tax of$4,538.70 Year of Assessment 1965 for additional tax of$7,054.00 Year of Assessment 1966 for additional tax of$62,276.50 Year of Assessment 1968 for additional tax of$8,329.75 Total $99,352.54

It is notable from the above that the additional assessments were made retrogressively, the last mentioned year being a period of 16 years and the first mentioned date going right back to about 26 years from the date on which the actual additional assessments were computed. Notices of the assessments were posted to the appellant on the same date. On 21 December 1985, the Revenue took out a writ of summons against the taxpayer for a sum, which after the addition of penalties for late payments, amounted to $114,749.03.

On 3 November 1986, the Revenue filed a summons-in-chambers for an application under Order 14 for a sum of $112,035.70, being the amount claimed in the writ less $2,713.33 paid by the taxpayer during the intervening period.

After hearing the matter in chambers, the learned senior assistant registrar entered summary judgment for the amount claimed by the Revenue. The taxpayer appealed against that decision.

Substantially the same arguments as raised before the learned senior assistant registrar have been placed before me. Mr. Chong, for the taxpayer, contends that such additional assessments made after the lapse of 12 years contravene the limitation as contained in section 91 of the Income Tax Act and are, therefore, statute-barred. Secondly, he argues that the summary judgment under Order 14 of the Rules of the High Court is not available in this instance because the Revenue's claim is based on an allegation of fraud — see Order 14 rule 1(2)(b).

On the issue of limitation, the senior federal counsel for the Revenue contends that the additional assessments were properly made in the case as they were assessed pursuant to section 91(3) under which provision assessments can be made at any time. He, however, refrained from specifying the para of subsection (3), i.e. fraud, wilful default or negligence, on which the Revenue based these assessements. In support of his contention that assessments can be made beyond the 12-year period, the senior federal counsel cited this passage from the Federal Court judgment in Arumugam Pillai v Government of Malaysia [1976] 2 MLJ 72, in particular at p. 73 where Gill F.J. said:

"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 section 33(1) of the Limitation Ordinance 1953. Reading section 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."

Mr. Chong, however, contends that by the use of the phrase "quite apart from any form of fraud", the court had excluded the provision in subsection (3) relating to fraud from subsections (1) and (3) and thereby rendered it necessary for the Revenue to prove fraud if they wished to go further than the 12-year period mentioned in section 91.

I am unable to accept this argument. To my mind the words "quite apart" referred to in that phrase merely meant "other than" or "besides". So what was intended here is that besides the normal principle applicable to actions based on fraud which enables certain actions to be com