Ahmad Kamal Md Shahid J:

Judgment

Introduction

[1]The Applicant on 9.12.2020, filed an application for leave to commence judicial review proceeding (Enclosure 1) under Order 53 of the Rules of Court 2012(ROC) seeking, inter alia the following:-

1.1. An order for the Respondent to exercise its power under Section 135Section 127(3A)Income Tax Act 1967(ITA) to set aside or exempt the Notice of Assessment dated 24.11.2020 for the year of assessment (YA) 2009 for the sum of RM 27,601, 234.80 on the grounds that the said Notice of Assessment is illegal, void, unlawful and/or in excess of authority, had been irrational and/or unreasonable, and resulted in a denial of the Applicant’s legitimate expectations;

1.2. A Declaration that the gains arising from the disposal of land by the Applicant to Greenstone Development Sdn Bhd in the YA 2009 are subject to real property gains tax under the Real Property Gains Tax Act 1976 (RPGTA);

1.3. That all further proceedings including the enforcement and effect of the decision be stayed until the full and final determination of the application to quash the decision;

1.4. That all necessary and consequential directions and orders be given;

1.5. That the costs of this application be costs in the cause; and

1.6. All other and further relief which this Honourable Court deems fit and proper.

[2]In essence, the Applicant, Dunia Kukuh Sdn Bhd filed an application for leave to commence judicial review against the Honourable Minister of Finance (Respondent) seeking various reliefs, among others, an order for the Honourable Minister of Finance to exercise his powers under Section 135Section 127(3A)ITA

[3]After the hearing, I dismissed the Applicant’s application for leave to commence judicial review (Enclosure 1). I will now set out the grounds for my decision.

Background Facts

[4]The background facts of this case are extracted from the Statement with suitable modification and are as follows: -

4.1. The Applicant is a company incorporated in Malaysia and is principally engaged in the business of investment property holding.

4.2. On 11.10.2007, the Applicant acquired a parcel of land measuring approximately 23.17 hectares known as H.S(D) 25235, PT 32223 in the Mukim of Sitiawan, District of Manjung, Perak (Land).

4.3. Vide a Joint Venture Agreement dated 26.8.2009 (Joint Venture Agreement) between the Applicant and Greenstone Development Sdn Bhd (Greenstone), the Applicant agreed to dispose of the said land to Greenstone for the latter to undertake housing development projects. The salient terms of the Agreement are, inter alia:

a.The Applicant agreed to allow Greenstone to develop and Greenstone has agreed to develop the said land into a housing estate;

b.The parties hereby agree and expressly declare that the Applicant shall be entitled to either one (1) of the following options (Land Owner Entitlement):

During all material times, the Applicant is the registered owner of the land whereas Greenstone is the beneficial owner.

i.After the conversion and subdivision of the said land into separate building lots the Applicant shall be entitled to 28% thereof together with the buildings to be erected thereon free from all encumbrances; or

ii.A cash payment by way of sale of no less than RM 75,000.000.00 only.

4.4. The Applicant opted for the second option of the Land Owner Entitlement for a cash payment of no less than RM 75,000,000.00, in accordance with the payment terms stipulated by Greenstone.

4.5. The chronology of key events, which are not in dispute, leading to this application is as follows:-