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Pengerang Independant V Menteri Kewangan - LNS - 2018!1!1945
Pengerang Independant V Menteri Kewangan - LNS - 2018!1!1945
Pengerang Independant V Menteri Kewangan - LNS - 2018!1!1945
Dan
Dan
Dan
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ANTARA
DAN
JUDGMENT
Introduction
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(ii) the applicant is also a registered person under the Goods and
Services Tax Act 2014 (‘GST Act 2014’) with effect from
1.4.2015.
(iv) the findings of the audit made reveals that there is underpaid
of tax by the Applicant and as such is in breached of section
88 of the GST Act 2014.
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(vi) Dissatisfied with the issuance of the said bill of demand, the
Applicant filed this application for judicial review.
[4] The grounds for the objection made inter alia are as follows :
(ii) the subject matter for review prayed for under paragraph 1
(a) of enclosure which is the decision of the 1 st respondent
contained in the letter dated 25.1.2018 to direct the 2 nd
respondent to issue a bill of demand to the applicant, is not
exibited in the affidavit in support of the application.
[6] The Federal Court in WRP Asia Pacific Sdn Bhd v. Tenaga
Nasional Bhd [2012] 4 MLJ 296, [2012] 4 CLJ 478 explained the
test for leave to commence a judicial review in the following
words :
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[7] This test was followed by a recent case of the Court of Appeal in
Peguam Negara Malaysia v. Nurul Izzah bt Anwar [2017] 5 CLJ
595, where it states :
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[9] In this regard, subsection 43(8) of GST Act 2014 empowers the
2 nd respondent to issue the said bill of demand where the provision
provides :
“Power to assess
[10] Although the Goods and Services Tax Act 2014 has been repealed,
section 4 of the Goods and Services Tax (Repeal) Act 2018
provides inter-alia where there involves any under paid services
tax, it can be collected under the repeal act.
Section 4 states :
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[11] This rights under the repealed law must also includes the right to
appeal against the decision of the Director General under sections
126 and 127 of the Goods and Services Tax Act 2014.
“Right of appeal
“ Jurisdiction of Tribunal
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[13] As regards the present application, it does not falls under any
matters specified in the Fourth Schedule and as such is within the
jurisdiction of the Tribunal.
[14] Further, subsection 5(3) of the Goods and Services Tax (Repeal)
Act 2018 empowers the Customs Appeal Tribunal to hear the
applicant’s appeal. It provides :
“5. (3) Any appeal before the Goods and Services Tax
Appeal Tribunal which is pending immediately before the
appointed date shall, on or after the appointed date,
continue to be heard and decided by the Customs Appeal
Tribunal.”
[16] However, the applicant has failed to exhaust this remedy to appeal
to the Custom Appeal Tribunal but instead has filed an application
for judicial review before this court.
[18] In the case of Robin Tan Peng Heng @ Muhamad Rizal bin
Abduilah (suing as public officer at Penang Turf Club) v. Ketua
Pengarah Kesatuan Keserja Malaysia & Anor [2011] 2 MLJ 457,
it states :
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The doors of justice are not shut do him merely because its
claiman 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
toestablish that the Director-General acted arbitrarily and
in a nonjudicial maner. It is only after he has availed
himself of that remedy as laid down by the law that he has
a right to come to the courts. (Emphasis added.)
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[21] In any event, as judicial review is the discretion of the court, the
application for leave to commence judicial review can be allowed
in an exceptional circumstances as explained by the Supreme
Court in Government of Malaysia & Anor v. Jagdis Singh [1987] 2
MLJ 185, which held :
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[23] The next pertinent issue in this application is with regard to prayer
1(a), where the applicant sought to quash the decision of the 1 st
respondent in a letter dated 25.1.2018 instructing the 2 nd
respondent to issue the bill of demand to the applicant.
[24] The said letter dated 25.1.2018 by the 1 st respondent was not
exhibited in the applicant’s affidavit-in-support. As such, the
material document which is the basis of the relief sought by the
applicant in prayer 1(a) and pertinent for this court to consider
whether to quash the said decision, is not before the court.
At page 631-
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Conclusion
(NORDIN HASSAN)
Judge
High Court Special And Appellate Powers
Kuala Lumpur High Court.
COUNSEL:
For the applicant - Vijey M Krishnan & Willian Wong; M/s Raja, Darryl
& Loh
Advocates & Solicitors
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WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 MLJ 296,
[2012] 4 CLJ 478
Robin Tan Peng Heng @ Muhamad Rizal bin Abduilah (suing as public
officer at Penang Turf Club) v. Ketua Pengarah Kesatuan Keserja
Malaysia & Anor [2011] 2 MLJ 457
Tuan Haji Sarip & Anor v. Patco Malaysia berhad [1995] 3 CLJ 627
Goods and Services Tax Act 2014, ss. 126, 127, Fourth Schedule
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