Hashim Yeop Sani SCJ:

[2] The grounds relied on by the respondent are to be found in para 3 of the statement under O 53 r 1(2) of the Rules of the High (Part B, p 8) which reads:

3. Grounds on which relief is sought-

That the notices of assessment are based on conjecture and have been issued maliciously and as a vindictive act.

[Emphasis Provided]

[3] On 22 April 1986 the learned Judge granted the respondent's application. This appeal is against that order.

[4] In his written judgment the learned Judge was clearly of the opinion that certiorari was available to the applicant and that the additional assessments were "arbitrary" (Part A, p 37) and not authorised by s 91(1) of the Income Tax Act 1967 and the figures were arrived at by "conjecture and surmise" (Part A, p 34). It would also appear that the learned Judge was satisfied that the additional assessments were made maliciously and vindictively because of the strained relationship between the respondent and the second appellant which according to him culminated in the raid on the respondent's office by the Income Tax department on 21 August 1984 led by the second appellant (Part A, p 9).

[5] The first question posed to us was put in the following way, that is whether certiorari would issue where as in this case there is an alternative remedy open to the respondent to appeal to the Special Commissioners under the Income Tax Act which appeal in the present case is pending.

[7] There is said to be a subsidiary rule to the effect that certiorari is not normally issued if the applicant has an alternative remedy available to him because the rationale is that he should first make use of the domestic remedy provided for him instead of invoking the writ jurisdiction.

[8] Encik Abdul Hamid, Senior Federal Counsel submitted that the Courts in this country have been consistent in refusing to grant an order of certiorari where an applicant had not exhausted the domestic remedy available to him. He cited Melayu Raya Press Ltd v. WL Blyth the Colonial Secretary, [1951] 1 MLJ 89 where an applicant for an order of certiorari to quash an order made by the Colonial Secretary withdrawing a licence granted to a company for keeping and using a printing press was refused because the applicants had not exhausted their right of appeal. He also cited Badat bin Drani v. Tan Kheat; [1953] MLJ 67 where an application for an order of certiorari to quash an order of Rent board was dismissed on the ground that the applicant had failed to avail himself to the normal remedy of appeal to the High Court. Similarly in Re Applications of (1) Chong Fye Lee & (2) Toong Hing Loong Tin Mining Co Ltd [1965] 31 MLJ 59 where an application for an order of certiorari to quash orders of the warden of mines, Johor was refused because the applicant could have appealed but did not. Also cited was the Hong Kong and Shanghai Banking Corporation, Ipoh v. Rent Tribunal for