Ian HC Chin J:

The matter herein, which was heard on 10 January 1994, arose as a result of my ruling handed down on 19 July 1993, where I ordered a stay of execution until 10 January 1994. The hearing on 10 January 1994, was to determine whether the stay of execution should continue or not.

In support of the argument for a continuing stay, the defendant filed an affidavit, deposed to by a Tseu Khen Fong on 7 January 1994, disclosing the fact that the Director of Inland Revenue had on 15 September 1993, requested particulars, including "confirmation letters from the relevant buyers", relating to 166 vehicles, and the letter ended with a note that the particulars ought to be supplied immediately so that the defendant's appeal for a review could be settled as soon as possible. The defendant replied, through their tax agents on 21 September 1993, to say that they are preparing the information requested and shall reply as soon as it is completed. Mr. Valentine Willie, Counsel for the defendant, argued that the request for particulars in respect of 166 vehicles take time and the information requested goes as far back as the year 1984; it, therefore, takes time to comply. The defendant requires 6 months to reply. In any event, Mr. Valentine Willie argued, if the Director of Inland Revenue feels that he is not prepared to wait any longer, which means he is going to stick by his assessment, he can simply tell the defendant so, in which event, the plaintiff will also have to say whether they are going to forward the appeal to the Special Commissioners of Income Tax or not. Until that time, the stay of execution should continue, argued Mr. Valentine Willie.

Mr. Abu Samah bin Nordin, Senior Federal Counsel, confined himself to saying that there is no appeal pending before the Special Commissioners and that, therefore, there is no question of a stay of execution pending the disposal of the appeal.

The appeal is still not before the Special Commissioners because it has not been transmitted by the director and it has not been transmitted because he, though not saying so expressly but necessarily by implication, feels that his assessment may be reviewed and thus may dispense with the necessity of an appeal. It cannot be argued that the appeal is still not before the Special Commissioners when the director is responsible for the appeal not being before the Special Commissioners. Mr. Abu Samah Nordin further argued that the defendant has no right to have the appeal forwarded to the Special Commissioners. I am of the opinion that the director must surely decide and say unequivocally that he is not going to forward the appeal to the Special Commissioners and this he has not done. It is only when the director has so decided and the defendant takes no legal step to compel the transmission of the appeal to the Special Commissioners, can it then be said that the appeal is, through no fault of the plaintiff, not before the Special Commissioners and that, therefore, there is no question of a stay of execution before the disposal of the appeal. It is not the case here. The stay of execution is to continue until after the happening of any of the following events:

(1) the director shall have decided not to forward the appeal of the defendant to the Special Commissioners, following which decision the defendant does not, within the time stipulated by law, take legal proceedings to compel the transmission of the appeal to the Special Commissioners; or

(2) the defendant, though he makes an application to the Court to compel the transmission of the appeal following the refusal of the director to transmit the appeal to the Special Commissioners, fails to get an order of the Court for the transmission of the appeal to the Special Commissioners; or

(3) the Special Commissioners rule against the defendant after the hearing of the appeal of the defendant by the Special Commissioners following the transmission by the director to them of the appeal.