Suriyadi Halim Omar JCA:

[1] This panel had heard the appeal and at the end of the hearing had dismissed it with costs. We thereupon had affirmed the learned judge's decision. In the course of the hearing learned counsel for the appellant had set out the antecedents of the appeal in the following manner:

[2] The appellant had filed an application 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 a Form J notice of assessment dated 1 August 2003, issued by the first respondent to the appellant for income tax year of 1998. It was also ventilated that, before the case could get off the ground, learned counsel for the respondent had registered a preliminary objection. After the exchange of submissions, the learned judge had acquiesced to the objection and thereafter dismissed the appellant's application with costs. Being dissatisfied the appellant had filed the notice of appeal hence the case before us.

[3] I now touch on the factual matrix of the case. The appellant with the intention of establishing a steel mill in Malacca had acquired three pieces of land (hereinafter referred to as the Cheng land). The steel mill was earmarked to be sited on that Cheng land. Regretfully for them, due to various protests by residents against the siting of the steel mill there, what with problems pertaining to the non-conversion of the land title from "agriculture" to "industry" by the Malacca State Government, the appellant had no choice but to relocate the steel mill to another site.

[4] With its purpose in acquiring the Cheng land having been frustrated, and to minimise losses, the appellant had applied to convert the usage to "building". Despite having received the conversion approval, no steps were undertaken by the appellant to develop it. In 1997, the appellant decided to establish a downstream plant called Group Steel Corporation, and in order to help finance its continuing investment, the appellant liquidated its investment in that Cheng land. The three pieces of land bought in 1991 for RM2,771,423.33 was successfully disposed on 5 March 1997 for RM9,489,577.80.

[5] On 2 April 1997, the appellant submitted the relevant notification of its disposal under CKHT 1 to the Inland Revenue Board. On 1 August 2003, the first respondent issued the notice of assessment Form J for the assessment of income tax for year 1998, despite the objection by the appellant that the land was only subject to real property gains tax and not income tax. That Form J, for some strange reason had made a notation that the gains made by the appellant fell under s. 4(a) of the Income Tax Act 1967 by virtue of the authority of TCS v. DGIR [1950-1985] MSTC 209 and H.Co. Ltd v. Cit (kes Undang-Undang Afrika Timur Vol. 1 No. 8). This notation was adverted to as the ground of its application for the certiorari. Being dissatisfied with the assessment in that form, the appellant on 29 August 2003 lodged the relevant prescribed Form Q to the Director General of the Inland Revenue in order to appeal to the Special Commissioners, a course of action undertaken pursuant to s. 99(1) of the Income Tax Act 1967.

[6] Before the Special Commissioners a taxpayer, in this case the appellant, will have all the opportunity to ventilate his disgruntlement, with every opportunity to tender exhibits, and give oral evidence if necessary (Director-General of Inland Revenue v. Lahad Datu Timber Sdn Bhd ; [1978] 1 MLJ 203). If the taxpayer is successful the tax so paid will be refunded in full. A taxpayer has an additional safeguard in that in the event a dispute on questions of law is identified it may be transmitted to the High Court by way of case stated. To dispel any fear of a taxpayer, merely because he has to face such an awesome body in the form of the government, Gill FJ in Sun Man Tobacco Co. v. Government of Malaysia; [1973] 2 MLJ 163 had occasion to state:

The doors of justice are not shut