JUDGMENTBY: IAN HC CHIN JC

I The applications

The applications herein are for a stay of execution. Since the two applications pertain to the same legal principles they were heard together. The Suit No T73 of 1991 will hereinafter be referred to as the Mastan case and Suit No T(22)-62 of 1992 as the Jasanusa case. The facts of both cases are not in issue and the issue is whether the facts amount to special circumstances justifying a stay. I will first set out the history and facts of the two cases.

II Facts of case

The Mastan case

Summary judgment was obtained against the defendant on 6 April 1993 for the sum of RM286,002.24 which sum was for taxes additionally assessed to be paid for the years of assessment of 1974, 1975 and 1976, including statutory penalties. The defendant, on 13 April 1993, took out the present application for a stay and in support thereof caused to be filed: (i) two affidavits affirmed by the defendant Datuk Haji Kadir Mohamad Mastan on 12 April 1993 and on 12 June 1993; (ii) an affidavit affirmed by Thayaparan Rasiah on 14 June 1993; and (iii) an affidavit affirmed by Vincent Chia Ka Soon affirmed on 17 June 1993. The facts that can be gleaned from these affidavits can, after some effort, be summarized as follows. Sometime in July 1977, the plaintiff, the Government of Malaysia, served on the defendant, notices of additional assessments for the years of assessment of 1974, 1975 and 1976. The defendants tax agent, by a letter dated 13 July 1977 and addressed to the Director of Inland Revenue (the Director), disagreed with the additional assessments on the grounds that the money earned from the sale of timber had been utilized for development purposes. The letter also requested a standover of the payment of the taxes additionally assessed. The agent also asked for the appeal form (Form Q) to be sent to the defendant. The Director replied by a letter of 8 August 1977 and maintained that the said proceeds of sale were liable to tax because the development was not carried on the land where the timber were extracted and sold but instead, on another piece of land. He however agreed to stand over the tax because there was a case on the same issue pending before the special commissioners. The matter was therefore put in abeyance until 2 April 1988 when the plaintiff wrote to the tax agent of the defendant to inform them that the special commissioners had, on the 29 March 1988, decided that "the net proceeds" paid by the appellant to the trust account fund were not outgoings and expenses wholly and exclusively incurred in the production of gross income and therefore not deductible under s 33(1) of the Income Tax Act 1967, alternatively if payment of "net proceeds" were outgoings and expenses, they constituted expenditure of a capital nature. The letter concluded with a demand for payment of the taxes. The tax agent replied by a letter dated 5 July 1988 and maintained that the taxes were not payable, giving the reason that the said decision of the special commissioners was on different facts and circumstances. The Form Q was again requested for and it was intimidated in the letter that the defendant wished to have the issue resolved by the special commissioners. The deputy director despatched to the tax agent the Form Q by a letter of 20 July 1988. The tax agent did not submit to the Inland Revenue the Form Q until 3 April 1991. On 3 September 1991, the tax agent submitted the amended Form Q to the Director and requested the Director to forward the appeal to the special commissioners. On 26 September 1991, the writ herein was taken out. The writ was served on the defendant on 17 October 1991. Judgment in default of defence was entered on 5 October 1992 but was, by consent, set aside on 9 February 1993. The defendants advocate, on 27 March 1993, wrote to ask that an earlier hearing be obtained for its appeal to the special commissioners. Summary judgment was entered on 6 April 1993. The plainti