Judicial review is permissible even when alternative remedies exist if significant legal questions or issues of illegality arise.

JUDGMENT

Gunalan Muniandy JCA:

Introduction

[1] Muhibbah Engineering Sdn Bhd ['Muhibbah'], the Taxpayer/appellant, a well-known published listed company, has brought this appeal against the decision of the Learned High Court Judge ['LHCJ'] dated 27 July 2020 to dismiss the appellant's Application for Leave for Judicial Review dated 29 January 2020 ['Appellant's Application for Leave'] against the Revenue/ respondent ['respondent'].

[2] The sole issue for our determination in this appeal was whether the LHCJ had erred in law in her decision to dismiss the appellant's Application for Leave to apply for Judicial Review.

Factual Background

[3] The appellant is a public listed company incorporated in Malaysia, principally engaged in the business of providing oil and gas, marine, infrastructure, civil and structural engineering contract work.

[4] On 3 July 2019, the respondent concluded its tax audit and issued its preliminary audit finding letter to the appellant. The respondent disallowed the deduction of the Project Accrued Expenses and adjusted the losses that the appellant surrendered for group relief to its related company, Muhibbah Marine Engineering Sdn Bhd ['MME'] in years of assessment 2015 and 2016 on the basis that the Project Accrued Expenses are provisional in nature

[5] From 1 August 2019 to 13 December 2020, the appellant provided supporting documents and explained to the respondent that the Project Accrued Expenses are expenditure that the appellant had incurred in relation to the works carried out by its subcontractor in the years of assessment 2015 and 2016.

[6] On 7 January 2020, the respondent informed the appellant that it maintained its audit findings and revised tax computations. On 14 January 2020, the appellant emphasised the following:

(i) the Project Accrued Expenses are deductible under s 33(1) of the Income Tax Act 1967 [' ITA ']; and

(ii) the respondent has no basis to invoke both subsections of s 44A(9) of the ITA .

[7] On 20 January 2020, the respondent issued the notices of assessment ("Form J" and "Form G") dated 17 January 2020 for years of assessment 2015 and 2016 and notification of non-chargeability ['NONC'] for year of assessment 2017 dated 20 January 2020 ['Decision'].

[8] The Respondent's Decision was the subject of the judicial review application filed by the appellant on 29 January 2020.

[9] On 27 July 2020, the High Court dismissed the appellant's Application for Leave.

Our Decision

[10] We must at the outset set out the grounds for the High Court's decision to dismiss the Application for Leave which are these:

(a) There is a dispute on facts and that the matter should be referred to the Special Commissioners of Income Tax ("SCIT") for the factual matrix to be ascertained; and

(b) There are no exceptional circumstances that would warrant the grant of leave as there is a statutory appeal provided under ss 99 and 44A(9)(b) of the ITA .

[11] It was acknowledged by the appellant themselves that s 99 of the ITA provides an alternative remedy for aggrieved taxpayers to appeal to the SCIT against an assessment issued by the respondent. However, the appellant took the position that the provision for the said alternative remedy was not a bar to the aggrieved taxpayer. In this regard, the appellant reiterated that the Supreme Court in Government Of Malaysia & Anor v. Jagdis Singh, 1987 MarsdenLR 728 ; 1986 MarsdenLR 317 had recognised that judicial review is available even where there is an alternative remedy in the following exceptional circumstances:

(a) Clear lack of jurisdiction; or

(b) Blatant failure to perform statutory duty; or

(c) A serious breach of the principles justice of natural justice.

[12] Upon being brought to our attention, we have noted that the Court of Appeal had unanimously upheld the High Court's decision in Ketua Pengarah Hasil Dalam Negeri v. Metacorp Development (Rayuan Sivil No: W-01-239-11) that the High Court has the jurisdiction to hear the taxpayer's application notwithstanding the exi