Leong Wai Hong JC:

JudgmentIntroduction

[1]“In this world, nothing can be said to be certain except death and taxes”.

[2]The above is a famous quote from the American statesman Benjamin Franklin in his 1789 letter to Jean-Baptiste Le Roy which said in part –

Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.

[3]In fulfilment of the prophecy of certainty, the Malaysian government via the Lembaga Hasil Dalam Negeri (“LHDN”) has now pursued the Defendant for unpaid tax by applying for summary judgment [Enclosure 42] pursuant to Order 14 of the Rules of Court 2012section 77Income Tax Act 1967

[4]The Defendant raised the following three alleged triable issues -

a)Whether the Notices of Assessment were effectively served and/or deemed to have been served on the Defendant by the Plaintiff;

b)Whether the amounts stated in the Notices of Assessment are conclusive and/or the assessment exercise for years 2010 to 2015 have been completed; and

c)Whether the Certificate of Indebtedness issued by the Plaintiff is defective.

[5]I heard counsel on 17-02-2023 and 20-03-2023 and allowed the summary judgment on 20-03-2023. The Defendant has filed an appeal to the Court of Appeal.

[6]These are my Grounds of Judgment.

Alleged triable issue [a]Whether the Notices of Assessment were effectively served and/or deemed to have been served on the Defendant by the Plaintiff

[7]I begin by examining the relevant sections under the Income Tax Act 1967.

Sections 77, 90 (3), 96(1), 103(2), 106(1) and (3) and 145(1) and (2) (c) of the Income Tax Act 1967

[8]section 77Income Tax Act 1967

Return of income by a person other than a company, trust body or co-operative society

77. (1) Every person, other than a company, trust body or co- operative society to which section 77A applies, shall for each year of assessment furnish to the Director General a return in the prescribed form—

(a)in the case of that person who is carrying on a business, not later than 30 June in the year following that year of assessment; or

(b)in any other case than the case in paragraph (a), not later than 30 April in the year following the year of assessment…

[Emphasis added]

[9]section 90(3)Income Tax Act 1967

(3) Where a person for a year of assessment has not furnished a return in accordance with section 7777A, the Director General may according to the best of his judgment determine the amount of the chargeable income of that person for that year and make an assessment accordingly.

[Emphasis added]

[10]section 96(1)Income Tax Act 1967

(1) As soon as may be after an assessment, other than an assessment under subsection 90(1)91A (1),has been made, the Director General shall cause a notice of assessment to be served on the person in respect of whom the assessment was made.

[Emphasis added]

[11]section 103(2)Income Tax Act 1967

PART VII

COLLECTION AND RECOVERY OF TAX

Payment of tax

103. (1) Except as provided in subsection (2), tax payable under an assessment for a year of assessment shall be due and payable on the due date whether or not that person appeals against the assessment.

(2) Where an assessment is made under section 90(3)919296A, or where an assessment is increased under section 101(2)the tax payable under the assessment or increased assessment shall, on the service of the notice of assessment or composite assessment or increased assessment, as the case may be, be due and payable on the person assessed at the place specified in that notice whether or not that person appeals against the assessment or increased assessment.

[Emphasis added]

[12]Sections 106(1) and (3)Income Tax Act 1967

106. (1) Tax due and payable may be recovered by the Government by civil proceedings as a debt due to the Government.

(2) The Director General and all authorized officers shall be deemed to be public officers authorized by the Minister under subsection 25(1)Government Proceedings Act 1956 [Act 359], in respect of all proceedi