Gill CJ (Malaya):

This is an appeal by the defendant from an order of Chang Min Tat J dated 23 August 1973, granting the application of the respondent as plaintiff in the action for leave to sign final judgment for a considerable sum due by the defendant to the respondent for income tax and additional income tax in respect of which notices of assessment had been duly served and demands for payment made.

In granting the plaintiff's application, the learned Judge rejected the defendant's objections to the application, holding that in respect of those objections, even if he reneged from his previous decision in Government Of Malaysia V. Dc [1985] 1 BLJ 106 and Comptroller of Inland Revenue v. NP [1973] 1 MLJ 165 , he would nevertheless be bound by the decision of this Court in Sun Man Tobacco Co. Ltd. V. Government Of Malaysia which upheld the view that by reason of the operation of s. 106(3) of the Income Tax Act, 1967, the Court, to put it bluntly, had only one function to perform, and that was to give judgment in favour of the Government.

Mr. Chandra, who appeared for the defendant, conceded that in respect of the objections in the defence as regards incorrect assessment or premature assessment, the learned Judge was bound by Sun Man's case but he contended that he had raised a constitutional issue in para. 10 of the defence as follows:

'The action of the plaintiff is inconsistent with Article 13(1) of the Constitution and further avers that the plaintiff has been acting under executive powers and as such the proceedings by the plaintiff is ultra vires the Constitution of Malaysia.'

Article 13(1) of the Constitution provides that 'no person shall be deprived of property save in accordance with the law'. On this constitutional issue, the learned Judge said in his grounds of decision that he had in a previous judgment followed the decision of the Supreme Court of Burma in Tinsa Maw Naing v. Commissioner of Police Rangoon & Anor. [1950] Burma Law Reports 17 on the construction of 'in accordance with law and held that when the Constitution speaks of law, it speaks of the will of the legislature enacted in due form, provided that such enactment is within the competence of the legislature.' In the learned Judge's view, there could be no doubt that income tax was deprivation of property in accordance with the law and that the Income Tax Act, 1967 was duly enacted by the legislature, so that taxing could not be said to be inconsistent with the Constitution.

The learned Judge went on to say that the second limb of the objection, in the form in which it was taken, seemed to him to be attacking something impregnable. The view which he took was that where the executive was entrusted with powers conferred on it by enactments duly passed by Parliament, it had to perform executive duties in accordance with its function of governing, and that would mean to exercise the 'executive powers' conferred on it. Taxing therefore could not be ultra vires the Constitution, so long as it was in accordance with law.

The learned Judge concluded that to attack the assessment on the constitutional issue was to say basically that the assessment was 'excessive, incorrectly assessed, under appeal or incorrectly increased' which would be caught by s. 106(3) of the Act. In the result, he dismissed the objection on the constitutional issue and granted the application to sign final judgment.

Subsequently Counsel for the defendant applied for further arguments to be heard on the matter in open Court. The learned Judge's first reaction was to deny the application, but he thought that he would not deprive himself of the pleasure of hearing further arguments. When the matter came up for hearing in open Court, Counsel for the plaintiff applied for an adjournment for two weeks on the ground that no lawyer from his department was free to argue the case. The learned Judge refused the application for adjournment, and then decided to dispense with further ar