John Lee Kien How @ Mohd Johan Lee J:

Introduction:

[1] This Civil Appeal arises from the decision of Special Commissioners of Income Tax ("SCIT") dated 20 February 2024, which dismissed the appeal filed by the appellant, Wong Yung Chun, and upheld the assessment issued by the Respondent, the Director General of Inland Revenue.

[2] The Appellant is the beneficiary owner of 1/10 share of a property held under GM 7101, Lot 5204, Bandar Alor Setar, Daerah Kota Setar, Negeri Kedah ("the said Land") and intended to sell the said Land to Imperio Venture Sdn Bhd ("Imperio Venture") via a Sale and Purchase Agreement ("SPA") dated 9 May 2017.

[3] The Appellant was granted Grant of Probate by the Hong Kong High Court on 12 February 2016 and obtained the resealed Grant of Probate by the Alor Setar High Court on 30 May 2018 for the said Land.

[4] On 12 March 2019, the Appellant, a Hong Kong citizen, received the consent under s 433B of the National Land Code (Act 828) ("NLC") from the Kedah State Government for the transmission and transfer of the said Land.

[5] The transmission and Memorandum of Transfer ("MOT") were subsequently registered at the Kedah Land Office on 26 March 2019.

[6] On 23 February 2020, the Appellant received the real property gains tax notice dated 19 February 2020 ("RPGT Notice 19 February 2020"), which stated the acquisition date as 31 May 2018 with an acquisition value of RM512,600.00 (RM190.00 per sqm) and the disposal date of 31 May 2018 with a disposal value of RM885,718.00 (RM328.00 per sqm, being the SPA price).

[7] Dissatisfied with the acquisition date and the market value stated RPGT Notice 19 February 2020, the Appellant appealed to the SCIT arguing that the acquisition date should be 26 March 2019 the date the said Land was registered onto the Appellant's name after obtaining the consent pursuant to s 433B NLC on 12 March 2019.

[8] The SCIT on 20 February 2024 dismissed the Appellant's appeal and upheld the information stated in RGPT Notice 19 February 2020. The Appellant then filed this appeal ("this Appeal") before this Court .

[9] The issues to be determined by this Court are:

(i) "Whether the acquisition date of the 1/10 share of the property held under GM7101, 5204, Tempat Tanjong Bendahara, Bandar Alor Setar, Daerah Kota Setar, Negeri Kedah is 31 May 2018; and

(ii) Whether the Real Property Gains Tax Assessment Notice for the assessment year 2018 dated 19 February 2020 issued against the appellant according to the acquisition date by the Jabatan Penilaian dan Perkhidmatan Harta ("JPPH") Kedah valued at RM512,600.00 is proper.

Submission By The Parties

[10] The Appellant submits that the acquisition date by a non-citizen is after obtaining the consent pursuant to s 433B under the National Land Code, namely, on 26 March 2019. Only after obtaining the consent, the Appellant could acquire the said Land and has the capacity and ownership to transfer the said Land to Imperio Venture.

[11] In support of his submission, the appellant refers to the Federal Court case of Chor Phaik Har v. Farlim Properties Sdn Bhd; [1997] 3 MLJ 188; [1997] 4 CLJ 393; [1994] 3 AMR 2103, where Mohamed Dzaiddin FCJ (as he then was) held at p 197G:

"...it follows that until his estate has been fully been administered by the administrators and distribution made according to law, the beneficiaries have no interest or property in the Estate of Chor Bah Say so as to give them any title to the said lands. Here, we agree with counsel for the appellant that the beneficiaries of his estate, being vendors of the said lands under the sale agreement could not have covenated to convey any title to the respondents.".

[Emphasis Added]

[12] The Appellant also avers that the Respondent had admitted and agreed with this contention during oral submission before the SCIT.

NP: p 89-90

Hakim: So sekarang ni, Puan Nurul Nasyrah, tadi 26 March 2019 boleh diterima lah sebagai Tarikh acquisition dalam kes ini? LHDN terima?

Pn Nurul: Kami boleh terima, Yang