SHAH ALAM (Feb 12): The High Court has fixed April 22 to deliver its decision on whether to grant leave (permission) for a judicial review for Toh Puan Na’imah Abdul Khalid to challenge the Inland Revenue Board’s imposition of RM313.82 million additional tax on her for the year 2018.
Judge Dr Shahnaz Sulaiman fixed the date after hearing submissions and preliminary objections from the Attorney General’s Chambers (AGC) over the granting of leave.
Normally in judicial review applications, the matter is heard ex-parte (from one party only), unless the AGC comes in to make an objection.
In such applications, leave has to be gained first, before the merits of the application can be heard.
The objection was made by Federal Counsel Sheryn Fong, who said that Na’imah could have brought the matter to the Special Commissioner of Income Tax (SCIT) for consideration, rather than going ahead with the judicial review.
However, Na’imah’s counsel, S Saravana Kumar, told Shahnaz that the existence of an alternative remedy, namely bringing the matter to the SCIT, does not bar his client from making the judicial review application, as there are exceptional circumstances in her case.
“This follows that the IRB had committed errors of law that go into the legality of its decision or acted in excess of jurisdiction (to impose the additional tax). Hence, this ought to be corrected by an order of certiorari (to quash an order) by this court.
“The questions involved (in this judicial review application) are purely questions of law which are more appropriately dealt with by this court,” the lawyer said.
Saravana Kumar, who appeared with Nur Amira Azhar and Dharshini Sharma, referred to the decision involving former Prime Minister Datuk Seri Najib Razak, pointing out that in that case, the Federal Court had held that the Income Tax Act (ITA) allows for the right of judicial review.
He said this showed that a judicial review is not ousted by the ITA.
“Specifically, the existence of the appeal procedure in Section 99(1) of the ITA does not preclude or oust the right of judicial review against the determination of a statutory tribunal, namely the SCIT. The ITA allows for full judicial intervention and adjudication,” he said, adding that the right to seek a stay or to resort to a judicial review, if exceptional circumstances exists, remains.
The exceptional circumstances, as argued by Na’imah’s lawyers, are of the existence of double taxation on her, considering that her late husband Tun Daim Zainuddin had allegedly declared his tax and paid additional tax for the years 2017 to 2019.
Saravana Kumar said as granting leave is based on a lower threshold, the application was therefore not frivolous, and Na’imah was entitled to obtain leave.
In the application, Na’imah is seeking to quash the IRB order dated Aug 13, last year, to pay additional taxes, as it is deemed as ultra vires, illegal, void, unlawful, in excess of authority, irrational and unreasonable.
She is also seeking a declaration that the ITA operates on a territorial basis, and it cannot be stretched so far as to require her to give information on assets which are under foreign jurisdiction, when there is no income received in Malaysia.
In addition, Na’imah is seeking a declaration that the ITA is a law on the imposition of tax, and not a law for the disclosure of financial sources used to fund investments. She is further seeking a declaration that the IRB had no basis to arbitrarily deem the assets in foreign jurisdiction were acquired in 2018.
Initially, Shahnaz had ordered Na’imah to pay the sum first, but Na’imah on appeal at the Court of Appeal was granted a stay from paying the sum.
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