Tee Ah Sing JC

This is a notice of motion by the applicants for the following orders:

(a) an order that the first respondent's notice of motion dated 28 February 1995 be dismissed, the applicant's application for judicial review vide ex parte notice of originating motion K25–19–94 being filed within the time prescribed by O 53 of the Rules of the High Court 1980 ('the RHC 1980');

(b) as an alternative to para (a), an order for an extension of time for the filing of the applicant's application for leave to apply for certiorari to quash directions dated 30 November 1987 issued by the first respondent to the applicant pursuant to s 140 of the Income Tax Act 1967 ('the Act'), such extension of time to take effect from the expiry of six weeks from the date of the directions until:

(i) the date of the filing of ex parte notice of originating motion K25– 19–94; or

(ii) such further time that this honourable court may deem fit;

(c) as an alternative to para (a), an order for an extension of time for the filing of the applicant's application for leave to apply for certiorari to quash notices of additional assessment, dated 7 and 8 December 1987, issued by the first respondent to the applicant pursuant to s 91 of the Act, such extension of time to take effect from the expiry of six weeks from the date of the notices until:

(i) the date of the filing of ex parte notice of originating motion K25– 19–94; or

(ii) such further time that this honourable court may deem fit;

(d) an order that the costs of this application and all the costs incidental thereof be made costs in the cause or be paid in accordance with the discretion of this honourable court.

This application is supported by the affidavit of Goh Chee San affirmed on 15 March 1995. The relevant parts read as follows:

(4) On 30 November 1987, the first respondent issued a series of directions ('the directions') to the applicant's then tax agents pursuant to the powers under s 140 of the Income Tax Act 1967 ('the Act'). The directions stated that payments made by the applicant between the years of assessment 1980 and 1987 to the Sabah Foundation (which enjoyed tax exempt status as a charity by virtue of s 44(6) of the Act), would be treated as dividends and hence not be allowed as deductions for tax purposes. I am now shown the affidavit of Susanna Willie sworn on 10 November 1994 and can confirm that the directions issued by the first respondent to the applicant's then tax agents are marked therein as exh SW7.

(5) The payments referred to in para 4 were originally treated by the first respondent as approved donations and were, therefore, allowed as deductions under the Act.

(6) On 7 and 8 December 1987, in purported exercise of the powers under s 91 of the Act, the first respondent issued the applicant a series of notices of additional assessment for the years of assessment 1980 and 1987 ('the notices of additional assessment'). The notices of additional assessment followed the original notices of assessment for the years of assessment 1980 to 1987 ('the original notices of assessment') except that the donations allowed in the original notices of assessment were now treated as dividends and hence were no longer allowed as deductions for tax purposes. (For the year of assessment 1985 the applicant was not originally assessed as being liable to pay income tax. The notice of assessment issued by the first respondent in December 1987 for the year of assessment 1985 was, therefore, the first notice of assessment received by the applicant for that year. For convenience the notice of assessment for the year of assessment 1985 is referred to collectively with the notices of additional assessment as 'the notices of additional assessment').

(8) The applicant's then tax agents lodged a notice of objection against the directions and the notices of additional assessment. I can confirm that this notice of objection is marked as exh SW9 in the affidavit of Susanna Willie sworn on 10 November 1994.