Lord Esher MR in Commissioners of Inland Revenue v.

Angus [1889] LR 23 QBD

579:

“The taxation is confined to the instrument whereby the property is transferred. The
1 transfer must be made by the instrument. If a transfer requires something more than
1 an instrument to carry it through, then the transaction is not struck at, and the
1 instrument is not struck at because the property is not transferred by it.”
1
1 Quoted by Federal Court in in BASF SERVICES (M) SDN BHD v PEMUNGUT DUTI
q SETEM [2010] 5 CLJ 109
1

“It is generally acknowledged that the real substance of a transaction may not
2 successfully be appreciated by mere perusal of a document, or by a hurried gauging
1 of the machinery adapted by the parties of the transaction. Only after going through
1 the exercise of construing the document as a whole may the real substance of that
1 transaction be known and thenceforth ascertain the respective parties’ rights and
1 obligations, and the correctness of the respondent’s adjudication.”
q
1 Federal Court in BASF SERVICES (M) SDN BHD v PEMUNGUT DUTI SETEM
[2010] 5 CLJ 109

“In order to determine whether any, and if any what, stamp duty is chargeable upon
3 an instrument, the legal rule is that the real and true meaning of the instrument is to
1 be ascertained; that the description of it given in the instrument itself by the parties is
1 immaterial …”
1
1 C.C.Gallagher in Highmore’s Stamp Laws 4th edn at p. 7. in BASF SERVICES (M)
q SDN BHD v PEMUNGUT DUTI SETEM [2010] 5 CLJ 109
1

“…the law upon stamp duty altogether a matter positive juris (rules imposed by
4 sovereign on subjects) which involves nothing of principle or reason but subject to the
1 language of the legislature.”
1
1 Federal Court in BASF SERVICES (M) SDN BHD v PEMUNGUT DUTI SETEM [2010]
1 5 CLJ 109
q
1
 Rowlatt J in Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 1 KB
64; 12 TC 358 :
5 “…in a taxing Act one has to look merely at what is clearly said. There is no room for
1 any intendment. There is no equity about a tax. There is no presumption as to a tax.
1 Nothing is to be read in, nothing is to be implied. One can only look fairly at the
1 language used …”
1
q
1
“We accept that for there to be a judicial review of executive action under O. 53 of the
ROC 2012, there must first be a decision by the public authority. That, we discern, is
6 the statutory requirement and well-established legal principle repeated and applied by
1 our courts.”
1
1 Court of Appeal in KETUA PENGARAH HASIL DALAM NEGERI v. MUDAH.MY SDN
1 BHD [2017] 5 CLJ 289
q
1

“A clear principle is reiterated here ie, it is not a rigid rule that whenever there is an
appeal procedure available to the applicant he should be denied judicial review.
7 Judicial review is always at the discretion of the Court but where there are other
1 avenue or remedy open to the applicant it will only be exercised in very exceptional
1 circumstances.”
1
1 Court of Appeal in KETUA PENGARAH HASIL DALAM NEGERI v. MUDAH.MY SDN
q BHD [2017] 5 CLJ 289
1

“The principle that the court retained the power to judicially review the decision of a
public authority, but where there was an alternative remedy of appeal, leave to bring
judicial review proceedings would only be granted in exceptional circumstances would
8
entail the necessity on the part of the respondent to show to our satisfaction the
1
existence of such exceptional circumstances. The effect of the failure by the
1 respondent to establish special circumstances necessarily followed that the legal
1 precept that an alternative remedy was available and yet to be exhausted would
1 therefore return to the forefront for consideration.”
q
1 Court of Appeal in KETUA PENGARAH HASIL DALAM NEGERI v. MUDAH.MY SDN
BHD [2017] 5 CLJ 289
 “At the risk of repeating, as there was no appeal to the Special Commissioners, this
Court has no option but to accept certain facts and conclusions as not reversible (fait
accompli). We cannot alter the view that the payments made by the first respondent
are royalty payments and now be heard to complain, bearing in mind that they have
9 failed to avail themselves, to echo Gill F.J, “of that remedy as laid down by the law”
1 before coming to the courts.”
1
1 Federal Court in KETUA PENGARAH HASIL DALAM NEGERI v. ALCATEL-LUCENT
1 MALAYSIA SDN BHD & ANOR [2017] 2 CLJ 1
q
1

“Guided by those persuasive cases, judicial interference therefore should be on a case

by case basis. As regards this appeal, we also find no statutory provision that demands
the appellant to supply reasons why the first respondent is duty bound to pay the
10
withholding tax.”
01
11 Federal Court in KETUA PENGARAH HASIL DALAM NEGERI v. ALCATEL-LUCENT
1q MALAYSIA SDN BHD & ANOR [2017] 2 CLJ 1
1

“We make the observation that it is for the taxpayer to demonstrate that the transaction
or the arrangement by which the income was produced was so preordained by
11 compliance with the requirements of law or accepted business practices to limit risk
01 exposure, and that the tax savings were purely incidental.”
11
1q Court of Appeal in SYARIKAT IBRACO-PEREMBA SDN BHD v KETUA PENGARAH
1 HASIL DALAM NEGERI [CIVIL APPEAL NO: W-01-177-04/2013]

“Section 113(2) would operate only if there is no prosecution made under s. 113(1).
Thus for the same wrong, that is, making incorrect returns or wrongful information, a
12 person who is not charged under s. 113(1) can be imposed with penalty under s.
01
113(2). Reading the two provisions quite obviously it is implied this provision operates
with or without bad faith.”
11
1q
SYARIKAT PUKIN LADANG KELAPA SAWIT SDN BHD v. KETUA PENGARAH
1
HASIL DALAM NEGERI [2013] 6 CLJ 1032
 “The evidence in this case shows that the revenue board became aware of the
RM18,000,000 claimed as deduction only upon auditing. Not for the auditing the
respondent would not be aware that the deductible rental should be lesser instead.
13 The appellant therefore would be paying less tax. The contention by the appellant that
01 it was made in good faith due to the differing interpretation of the law cannot hold
11 because ignorance of law cannot be a defence.”
1q
1
SYARIKAT PUKIN LADANG KELAPA SAWIT SDN BHD v. KETUA PENGARAH
HASIL DALAM NEGERI [2013] 6 CLJ 1032

“Their Lordships cannot stress too strongly how important it is that, in every Case
Stated for the opinion of the High Court, the Special Commissioners should state
clearly and explicitly what are the findings of fact upon which their decision is based
and not the evidence upon which those findings, so far as they consist of primary facts,
14
are founded. Findings of primary facts by the Special Commissioners are unassailable.
01
They can be neither overruled nor supplemented by the High Court itself…”
11
1q Privy Council in Chua Lip Kong v Director-General of Inland Revenue [1982] 1 MLJ
1 235 quoted by the Court of Appeal in SYARIKAT IBRACO-PEREMBA SDN BHD v
KETUA PENGARAH HASIL DALAM NEGERI [CIVIL APPEAL NO: W-01-177-
04/2013]

“…When the case comes before the Court it is its duty to examine the determination
having regard to its knowledge of the relevant law. If the case contains anything ex
15 facie which is bad law and which bears upon the determination, it is, obviously,
01 erroneous in point of law. But, without any such misconception appearing ex facie it
11 may be that the facts found are such that no person acting judicially and properly
1q instructed as to the relevant law could have come to the determination under appeal.
1 In those circumstances, too, the Court must intervene…”

The Supreme Court in Lower Perak Cooperative Housing Society Bhd quoted by the
Court of Appeal in SYARIKAT IBRACO-PEREMBA SDN BHD v KETUA PENGARAH
HASIL DALAM NEGERI [CIVIL APPEAL NO: W-01-177-04/2013]
 “The doors of justice are not shut to him merely because the claimant is the
Government, but he has to enter the doors of the Special Commissioners first to raise
the plea of non-observance of the principle of natural justice or to establish that the
16 Director General acted arbitrarily and in a non-judicial manner. It is only after he has
01 availed himself of that remedy as laid down by the law that he has a right to come to
11 the courts.”
1q
1 Gill FJ in Sun Man Tobacco Co. v. Government of Malaysia [1973] 2 MLJ 163

“In my opinion, once the Comptroller of Income Tax has made an assessment and
issued a notice of assessment to a taxpayer calling upon him to pay the tax mentioned
17 in the notice, the taxpayer is bound by law to pay such tax within one month even
though he may be dissatisfied with the assessment. Whether the assessment is right
01
or wrong, the tax must be paid notwithstanding any objection or appeal.”
11
1q
Choor Singh J in the case of Comptroller of Income Tax v. A Co. Ltd [1966] 1 LNS 43.
1

“The Act has specifically provided comprehensive provisions on the right and
procedure of appeal for the taxpayers to avail themselves to in the event they were
aggrieved by the act of the appellant. Parliament would not have enacted in vain
18
without any real significance such comprehensive provisions on appeal. It is indeed
01 an alternative remedy within the legislative scheme of income tax legislation that
11 allows any person aggrieved by an assessment to appeal before a body which is
1q dedicated specifically to hear such appeal. It would indeed be an exercise in futility to
1 create such mechanism of appeal if it is not to be complied with.”

Court of Appeal in KETUA PENGARAH HASIL DALAM NEGERI v. MUDAH.MY SDN

BHD [2017] 5 CLJ 289

“This country is now adopting a self-assessment regime. Thus in line with the present
policy where submission of returns are based on self assessment by tax payer, a tax
19 payer must be mindful of his responsibility to submit correct returns and must
01 necessarily do so upon necessary consultation to ensure correct returns are
11 submitted.”
1q
SYARIKAT PUKIN LADANG KELAPA SAWIT SDN BHD v. KETUA PENGARAH
1
HASIL DALAM NEGERI [2013] 6 CLJ 1032
 “Under Order 53 Rule 3(6) RHC 1980, an application shall be made promptly, or within
40 days when grounds for the application first arose, or when the decision was first
communicated. If an applicant is out of time he then must apply for an extension of
20 time. If none is made or no extension of time is granted the judicial review application
01 therefore becomes incompetent.”
11
1q Federal Court in KETUA PENGARAH HASIL DALAM NEGERI v. ALCATEL-LUCENT
1 MALAYSIA SDN BHD & ANOR [2017] 2 CLJ 1

“To decide by way of judicial review that the appellant was right or not in its findings is
in truth questioning the merits of the matter. The proposition that a question pertaining
to the merits of the assessment is a matter better reserved for the Special
21 Commissioners was deliberated in the case of Ta Wu Realty Sdn Bhd, supra, wherein
01
this court held that the Special Commissioners of Income Tax were the proper forum
to decide on the merits of an assessment.”
11
1q
Court of Appeal in KETUA PENGARAH HASIL DALAM NEGERI v. MUDAH.MY SDN
1
BHD [2017] 5 CLJ 289

“The distinction between what is accepted and what is not in the way of reducing the
amount of tax to be paid used to be conveniently described by the terms tax avoidance
and tax evasion respectively. Section 140 (c) of the Act in particular, has the effect of
demolishing that convenient description. The Act now empowers the Director General,
without prejudice to such validity as it may have in any other respect or for any other
22
purpose, where he has reason to believe that any transaction has the direct or indirect
01
effect of evading or avoiding any duty or liability which is imposed or would otherwise
11 have been imposed on any person by the Act, to disregard or vary the transaction and
1q make such adjustments as he thinks fit with a view to counteracting the whole or any
1 part of any such direct or indirect effect of the transaction.”

Court of Appeal in SYARIKAT IBRACO-PEREMBA SDN BHD v KETUA PENGARAH

HASIL DALAM NEGERI [CIVIL APPEAL NO: W-01-177-04/2013]

“The wordings of section 3B of the ITA and sections 3A and 2(3) of LABATA as well
as the Exemption Order are clear and unambiguous. It is trite that when the provisions
23
of law are clear and does not admit any ambiguity, then the provisions must be strictly
01
interpreted.”
11
1q Federal Court in POSITIVE VISION v KETUA PENGARAH HASIL DALAM NEGERI
1