Augustine Paul FCJ:

[1] The Government of Malaysia (the appellant before us) had obtained judgment in the High Court for the sum of RM290,918.17 being tax due for the Years of Assessment 1984 and 1985 against Yong Siew Choon (the respondent before us), as the executor within the meaning of s 2 of the Income Tax Act 1967 (the Act) of the estate of her late husband Abdul Hamid Tun Azmi (the deceased). She appealed to the Court of Appeal which allowed her appeal on the ground that the appellant had failed to comply with the provisions of O 15 r 6A of the Rules of the High 1980 (O 15 r 6A). Leave was granted to the appellant to appeal to this Court for a determination of the following question of law:

Whether in view of the provisions of the Income Tax Act 1967, O 15 r 6(A) Rules of the High is applicable to an action or proceeding raised under s 106 of the Income Tax Act 1967 in relation to an assessment in the name of an executor as defined in the Act.

[2] The respondent married the deceased on 31 March 1961. He was a partner in the firm of Messrs Shook Lin and Bok and died intestate on 12 January 1984 leaving behind the respondent and their son as dependents. Prior to his death the deceased had paid all the income taxes payable by him up to and including the Year of Assessment 1983. The respondent did not apply for the grant of letters of administration. Notices of Assessment dated 25 August 1984 and 11 June 1986 for the Years of Assessment 1984 and 1985 were posted to the last known address of the respondent who duly completed and returned the forms However, she did not pay the tax that had become payable. Accordingly the appellant commenced proceedings against her for the recovery of the tax due in her capacity as the "Wakil Sah Kepada Harta Pesaka Abdul Hamid Tun Azmi". The respondent contended that she was not the wakil sah of the deceased and as such it was not her responsibility to make the payment to the appellant. She also claimed that the sum of RM280,000 which she had received from the firm of Messrs Shook Lin and Bok upon the demise of her husband was in fact an ex gratia payment which is exempted from taxation.

[3] In dealing with the objection of the respondent that the appellant had no legal right to sue her by merely describing her as "Wakil Sah Kepada Harta Pesaka Abdul Hamid Tun Azmi" the learned High Court Judge said:

Since the plaintiff's claim is based on s 74(1) of the Act, it is necessary to reproduce the same. It reads:

74(1) Where an individual dies in the basis year for a year of assessment, his executors shall be assessable and chargeable to tax for that of assessment, for the following year of assessment and, whenever necessary for any previous year of assessment in respect of the chargeable income of that individual for any such year of assessment; and, where they are so assessable and chargeable, they shall be assessable and chargeable to tax in like manner and to the like amount as the individual would be assessed and charged to tax if he had not died.

[4]Section 2 of the Act defined executor as the 'the executor, administrator or other person administering or managing the estate of a deceased person'. [Emphasis provided]

[5] I reject Jagjit's contention that the words 'wakil sah' have not been referred to in the Act. The agreed documents in the CABD show that it was the defendant who had completed and signed Form B being the 'Return of Income by an Individual' for years of assessment 1984 and 1985. She had declared herself on signing the said forms as the wife of Abd Hamid Tun Azmi (deceased). She explained in Court that she signed the 2 forms because she was told by Ms Pang Siew Lan of Price Waterhouse, the firm of accountants, that prepared the accounts of her husband's estate that if she failed to sign the said forms she would be in trouble. However, this Ms Pang was never called to testify. In the absence of Ms Pang to explain to the contrary I must therefore infer that obviously Ms Pang mus