The Special Commissioners for Income Tax in stating a case for the opinion of the High Court under paragraph 38 of Schedule 5 to the Income Tax Act 1967 (hereinafter referred to as "the 1967 Act") on 25th June 1996 transmitted the same to the High Court. In the meanwhile before the matter was disposed off, the Appellant filed a notice of motion on 25th November 1996. This motion was supported by an affidavit affirmed on 20th November 1996 by Phyllis Lee Guat Koey, the Tax Manager of Kassim Chan Tax Services Sdn. Bhd., the Appellant's tax consultant. She deposed that on 30th November 1995 the Applicant filed an appeal with the Special Commissioners of Income Tax against the decision of the Revenue. The Commissioners heard the appeal on 14th and 15th February 1996. She was present during the hearing assisting counsel for the Appellant. During the hearing proceedings she assisted the counsel in the recording of the notes of the proceedings. She tendered a type written note of the proceedings which she had recorded and marked as exhibit "PL-1". By a letter dated 24th April 1996 which was received by the counsel for the Appellant on 2nd May 1996, the Commissioners sent the draft of the purported Case Stated for comment, which includes the proposed finding of facts by the Commissioners. She exhibited the said draft as "PL-2". The counsel for the Appellant proposed several findings of facts to be included in the final Case Stated. She exhibited the said proposal as "PL-3" dated 6th May 1996. The counsel also submitted to the Commissioners "Senarai Pertikaian" - the List of Disputes - dated 13th May 1996 which she exhibited as "PL-4". A copy each of "PL-3" and "PL-4" was also sent to the tax consultant and the Appellant. She alleged that most of the proposed finding of facts in "PL-3" which came out of the hearing before the Commissioners and taken from her copy of the notes of evidence recorded during the hearing before the Commissioners - exhibit "PL-1" - were either omitted or ignored in the final Case Stated prepared by the Commissioners. It is also alleged that the content of exhibits "PL-4" and "PL-3" were not fully included in the Case Stated of the Commissioners. She prayed for the whole content of exhibits "PL-3" and "PL-4" be directed to be included in the Case Stated. The Respondent did not file any affidavit in reply to this affidavit in support of the Applicant.

A date was fixed to hear the said motion of the Applicant/Appellant. On the scheduled date, the learned counsel for the Applicant informed the court that the Applicant in a similar application before Court No. 2 did not succeed with the application as the court ruled that such an application by notice of motion was not proper. The Applicant had since filed an appeal with the Court of Appeal against the said decision and it was due to be heard in about a month in the Court of Appeal. He had requested this court for a short adjournment to await the outcome of the appeal in the matter. The Respondent had no objection and the court considering that the application for adjournment was proper, adjourned the hearing of this application to another date. On the adjourned date of the hearing of this application, the learned counsel for the Applicant informed the court that the applicant in the appeal did not succeed in his appeal in the Court of Appeal. However, the learned counsel for the Applicant, instead of withdrawing this present application informed the court that as a point decided by the Federal Court in E. v. Comptroller General of Inland Revenue (1950-1985) MSTC 106 was not referred to the Court of Appeal in the appeal of the applicant just mentioned, he would like to have this present application argued before me based on the issue raised in the said Federal Court decision. The learned counsel for the Respondent agreed that this present application be argued and it involves other matters than was the matter before Court No. 2 which decision the Court of