The units were the applicant’s stock in trade and the applicant received income from the sale of the units. The applicant’s case is anchored on the ground that the contributions were made in the course of the applicant’s business. In any event, they were incurred for the purpose of earning profit. In so far as the applicant is concerned, the unsold Bumiputera quota units had to be released to non-Bumiputera units to prevent the applicant from incurring losses in their business. [15] The condition precedent under the Agreement is that the applicant had to pay 7.5% of the unit’s sale price to Tabung. If the amount is not paid, the Bumiputera quota will not be released and the applicant will incur losses. [16] In any event, learned counsel for the applicant submitted that the contributions made to the Tabung are revenue and not capital in nature. In Syarikat Jasa Bumi (Woods) Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2000] 2 MLJ 317 CA, the Court of Appeal made a distinction between creating intangible assets and S/N 0rcrU6HAOEapuqqiz0ZyzA producing income. In short, learned counsel contended that capital expenditure is a thing that is going to be spent once and for all. However, income expenditure is a thing that is going to recur every year. [17] Applying the proposition to the facts of the case, learned counsel for the applicant submitted that the contributions are revenue expenditure. The reason is, according to learned counsel, the contributions did not bring into existence any form of long-lasting asset to the applicant’s business. Section 44(6) of the ITA [18] In the alternative, learned counsel submitted that the contributions are deductible under s 44(6) of the ITA. The section provides a deduction for any gift of money to the government, state government, or local authority. A gift is described as a transaction unsupported by valuable consideration; see Sabah Berjaya Sdn Bhd v Ketua Pengarah Jabatan Hasil Dalam Negeri [1999] 3 CLJ 587 CA. [19] Learned counsel contended that the applicant made the contributions pursuant to the Agreement to release the Bumiputra units. Upon contributing to the State Government of Johor, the State Government has the discretion on whether to release the Bumiputera unit status to non-Bumiputera or otherwise. Even after the contribution is made to the State Government, according to learned counsel, there is no guarantee that the Government will release the status of the units to non-Bumiputera. The Revenue’s Response [20] The Revenue took umbrage in the filing of this application for judicial review to quash the DGIR’s decision in the issuance of the NAA. To begin with, according to the learned Senior Revenue Counsel (“SRC”), the applicant should have addressed its grievances under s 99 of the ITA by appealing to the Special Commissioner of Income Tax. S/N 0rcrU6HAOEapuqqiz0ZyzA [21] Relying on the judgment of the Supreme Court in Government of Malaysia & Anor v Jagdis Singh [1997] CLJ (Rep) 110 SC, the learned SRC submitted that where there is an alternative remedy, as in this case, the order of certiorari may only be issued under “very exceptional circumstances”. The learned SRC then argued that very exceptional circumstances include a clear lack of jurisdiction or blatant failure to perform some statutory duty or in appropriate circumstances, a serious breach of principles of natural justice. [22] The proposition in Jagdis Singh was adopted by the Court of Appeal in Ketua Pengarah Hasil Dalam Negeri v Mudah.My Sdn Bhd [2017] 5 CLJ 283 CA. [23] Having referred to a line of authorities, the learned SRC urged this Court that the onus to prove the existence of special circumstances is on the applicant. According to the learned SRC, the applicant has failed to establish “a clear lack of jurisdiction or blatant failure to perform some statutory duty or in appropriate circumstances, a serious breach of principles of natural justice”. [24] Secondly, the learned SRC submitted that the applicant must be bound by its pleadings. The learned SRC submitted that, under O 53 r 3(1) of the ROC, no other grounds other than those set out in the Statement can be relied upon at the hearing of the substantive stage; Paul Raj Chelladurai v Jabatan Telekom Malaysia Bhd & Ors [2000] 4 CLJ 882 CA. [25] The learned SRC attracted my attention that save for the issue of gift under s 44(6) of the ITA, no mention of s 33(1) was made in the Statement. Analysis [26] Allow me to address the issue of failure to plead first. [27] I take cognisance that in para 2(1)(b) of the Statement, the applicant averred as follows: A declaration that the Respondent is bound by and shall give effect to section 44(6) of the Income Tax Act 1967 (“ITA”) which clearly provides that any gift of S/N 0rcrU6HAOEapuqqiz0ZyzA money made in the basis year to a State Government or a local authority is deductible for that year in arriving at the total income. As I alluded to earlier, the application by the applicant to insert a new relief in the Statement in Encl 36 was dismissed by Ahmad Kamal J. [28] There are two observations that I am going to make on this. They are these. First, in view of the dismissal, the applicant’s case is solely anchored on the original and unamended Statement and nothing more. [29] Secondly, the failure of the applicant to proceed with the appeal at the Court of Appeal could only mean the applicant had accepted the correctness of the decision of Ahmad Kamal J. In Syed Omar Syed Mohamed v. Perbadanan Nasional Bhd [2012] 9 CLJ 557 FC, it was held that a plaintiff's failure to appeal against a Court's decision in striking out his suit meant that the plaintiff accepted the correctness of the decision to dismiss its suit. In delivering the judgment of the apex Court, Zulkefli Makinudin CJ (Malaya) (as the former PCA then was) made the following remarks: We also find that the plaintiff did not appeal against the decision of the learned judge striking out the first suit. The failure to appeal meant that the plaintiff accepted the correctness of the decision to dismiss its suit. Further, the failure to appeal has itself been recognized as an abuse of process because the second suit would be construed as an attempt to circumvent the appeal procedure. [30] I believe the law is trite in that no grounds shall be relied upon and no reliefs sought except those set out in the Statement. The Court of Appeal, in a recent judgment, had the opportunity of analysing a line of high authorities on the need to plead material facts in the Statement for it to be considered by the Court. In Tan Wee Ching v. DA Tong Shi Je Supplies & Services Sdn Bhd & Another Appeal [2022] 5 MLJ 67 CA, the Court of Appeal held that the High Court had erred in law when it decided on an issue not pleaded by the parties. [31] As can be seen in Paul Raj Chelladurai, Siti Norma Yaakob JCA (as the former CJ (Malaya) then was), in delivering the judgment of the Court, held that O 53 r 3(1) (of the then Rules of High Court 1980) S/N 0rcrU6HAOEapuqqiz0ZyzA emphasises the principle that a party is bound by his own pleadings and since that order and rule is mandatory in nature, the omission to plead in the statement was a sufficient reason for the court to conclude for the appeal lacked merits. [32] Since the issue of s 33(1) of the ITA is not pleaded in the Statement, the applicant is barred from raising this at the substantive hearing and I so hold. [33] As to the issue under s 44(6) of the ITA, learned counsel, in his submission, is preoccupied in arguing that the contributions made by the applicant are a gift. With respect, before we can ascertain whether the contributions are a gift or otherwise, it should be noted that the payments were made to the Tabung and not to the State Government of Johor. [34] According to cl 11(e) of the Supplemental Agreement: The Developer shall contribute to the “TABUNG PERUMAHAN BUMIPUTERA NEGERI JOHOR” with the amount equivalent to 7.5% of the price sold to the non Bumiputera or any other amount stipulated by the Government. [35] It has not been shown to this Court that the Tabung is the same entity as the “state government” within the meaning of s 44(6) of the ITA. At the very least, it has not been shown that the Tabung is an institution or organisation or a fund approved for the purposes of s 44(6) by the DGIR. [36] In the absence of a nexus between the contributions and the recipient, as stipulated in s 44(6), I cannot, with respect, hold that they are deductible. [37] In any event, even if we assume for one moment that the Tabung and the State Government of Johor are one and the same, of which no finding is made here, the word “shall” in cl 11(e) denotes mandatoriness in that the applicant is obligated to pay before obtaining the release of the Bumiputera units. It cannot be voluntary, as learned counsel urged me to conclude. [38] In Sabah Berjaya, Gopal Sri Ram, in delivering the judgment of the Court of Appeal, held that: S/N 0rcrU6HAOEapuqqiz0ZyzA Thus, when their Honours in the Australian cases, relied upon by the Special Commissioners and the learned judge, used the expression "voluntary", they did so in order to draw a distinction between transactions that were supported by valuable consideration and those that were not. They were not speaking of the making over of money or property by a person acting under pressure. [39] It is needless to say that mandatoriness and voluntariness are a contradiction in terms. Therefore, I hold that the contributions are a valuable consideration and that s 44(6) of the ITA is not applicable. Findings [40] For the reasons aforesaid, my findings are as follows: