of the ITA to set aside or exempt the Assessments. This application to the respondent was sent via e-mail. The physical copy was sent to the respondent’s office on 18.8.2022. [15] The respondent had not responded to the application sent by the applicant requesting a direction under section 135 of the ITA and/or exempt the taxes arbitrarily raised via the said Assessments under section 127 (3A) of the ITA. Hence, the applicant filed this application seeking leave to commence judicial review proceedings. [16] The applicant’s contention is that the failure of the respondent to respond to the applicant’s application is treated a rejecting the applicant’s application under section 135 of the ITA and/or exempt the taxes arbitrarily raised under section 127 (3A) of the ITA. [17] Before this court proceeds further to consider this application seeking leave, the issue before this court therefore, is whether the failure of the respondent to respond to the applicant’s application can be considered a rejection. [18] On this point, learned Senior Federal Counsel for the respondent submitted that there has been no decision made by the respondent that could be subjected to judicial review, hence this rendered the applicant’s application herein as frivolous and vexatious. [19] The applicant’s stance is that the respondent’s non-response to the applicant’s application amounts to a decision which in turn is amenable to judicial review. It was argued that the failure to respond by the respondent amounted to a rejection by the respondent which led to this application before this court. [20] In this respect, this court made reference to Order 53 Rule 2(4) of the Rules of Court 2012 which is reproduced below: “Any person who is adversely affected by the decision, action or omission in relation to the existence of the public duty or function shall be entitled to make the application.” [21] The applicant, in the considered view of this court, cannot place a legal duty on the respondent where one does not exists. Moreover, it is observed that the applicant did not follow up with the application sent to the respondent prior to filing this application for judicial review. [22] In this regard, reference was made to the Court of Appeal case of Abdul Rahman bin Abdullah Munir & Ors v. Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704 where the court stated the following: “[59] …We also find it ludicrous for the appellants to hold the view that a decision was only arrived at when the first respondent failed to respond to one week time period ultimatum in their letter. The latter was not duty-bound to respond to what we feel, corresponded to a threat. …[61] An application for a judicial review under O 53 of the RHC is intended to impugn a decision. This is central to any judicial review. The appellants contended that there was a “deemed decision” by the first respondent made on 5 January 2005 when it failed to revert to the appellants’ letter of 22 December 2004. [62] It is thus crucial to first identify definitely what the decision is that is sought to be impugned. This has to be the actual date (see Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1). The appellant’s interpretation towards the first respondent’s non response to their letter makes no sense and far stretching one’s imagination. This would give rise to an artificial meaning to the word decision of decision too becomes fictitious which makes the computation of the statutory time limit under 53 of the RHC indeterminable. …[65] Order 53 of the RHC confers jurisdiction on the High Court to entertain an application for judicial review seeking any of the prerogative writs mentioned in para 1 of the Schedule to the Courts of Judicature Act 1964. [66] That jurisdiction may however only be exercised upon obligatory compliance with the imperative requirement of time set under O 53 r 3 of the RHC. …[72] Based on the authorities mentioned above, we are of the view that leave to apply for this judicial review should not therefore have been granted to the appellants since the learned judge had no jurisdiction to allow it in the first place due to the appellants’ unaccountable breach of O 53 r 3(6) of the RHC. [73] We also agree with the learned judge’s finding that the decision as alleged by the appellants is artificial and is thus not susceptible to judicial review” [Emphasis added] [23] In the considered view of this court, the fact that the respondent did not respond or had failed to respond to the applicant’s application, cannot be considered to be a rejection of the applicant’s application pursuant to section 135 and/or section 127 (3A) of the ITA to set aside or exempt the Assessments. [24] The next issue for this court to consider is whether the failure by the respondent to respond to the applicant’s application would amount to an omission which is susceptible to judicial review under Order 53 of the Rules of Court 2012. [25] In the case of Winsome Al-Yatama Sdn Bhd v Pentadbir Tanah Kota Tinggi [2015] MLJU 711, the court held: “[23] The question is whether the non-response by the respondent to the letter of the applicants dated 13 January 2015 by the deadline specified by them on 9 February 2015 can be considered as a form of decision, the act or omission in respect of which can legally attract the public law remedies of judicial review. It is trite law as emphasized by the Federal Court in Ahli-ahli Suruhanjaya Yang Membentuk Suruhanjaya Siasatan Mengenai Rakaman Klip Video Yang Mengandungi Imej Seorang Yang Dikatakan Peguambela dan Peguamcara Berbual Melalui Telefon Mengenai Urusan Pelantikan Hakim-Hakim v Tun Dato Seri Ahmad Fairuz Dato Sheikh Abdul Halim & Other Appeals [2012] 1 CLJ 805, following Council of Civil Service Unions v Minister for Civil Service [1984] 3 All ER 935 that for a decision to be susceptible to judicial review, there must first be a decision by a decision maker or a refusal by him to make a decision, and that decision must affect the aggrieved party. [Emphasis added] [26] Based on the provisions of Order 53 of the Rules of Court 2012 and the authorities cited, this court is of the considered view the failure of the respondent to respondent to the applicant’s application under section 135 and/or section 127 (3A) of the ITA to set aside or exempt the Assessments does not amount to a decision or omission which is susceptible to judicial review. [27] The next issue for this court’s consideration is whether an application under section 135 and/or section 127 (3A) of the ITA to set aside or exempt the Assessments is the proper application in this instance. [28] The applicant made an application under section 135 of the ITA which provides: “The Minister may give to the Director General directions of a general character (not inconsistent with this Act) as to the exercise of the functions of the Director General under this Act; and the Director General shall give effect to any directions so given.” [29] Alternatively, the applicant made an application to the Minister under subsection 127 (3A) which provides: “(3A) The Minister may, in any particular case exempt any person from all or any of the provision of this Act, either generally or in respect of any income of a particular kind or any class of income of a particular kind.” [30] A perusal of section 135 of the ITA indicates that Minister may give to the Director General directions of a general character. There is no mention of a direction under section 135 pertaining to set aside or exempt the assessments imposed by the DGIR. Section 135 of the ITA comes under the heading of Part X Supplemental. [31] Subsection 127 (3A) of the ITA provides that the Minister may exempt a person in a particular case. This section refers to exemptions from tax. With respect, having perused subsection 127 (3A) of the ITA in the Context of the Whole of the ITA, this court is of the considered view that the exemption the Minister may allow is in relation to section 127 itself. It does not mean the Minister has the authority to grant exemptions randomly as he pleases. Hence, this court is of the considered view this provision should not be by the applicant for purpose of obtaining an exemption. [32] Learned Senior Federal Counsel for the respondent submitted that the applicant should have taken the matter up under the Special Commissioner of Income Tax pursuant to section 99 of the ITA. The applicant who was dissatisfied and aggrieved by an assessment should make an appeal to the Special Commissioner of Income Tax for determination. [33] Section 99 (1) of the ITA provides: “(1) A person aggrieved by an assessment made in respect of him may appeal to the Special Commissioners against the assessment by giving to the Director General within thirty days after the service of the notice of assessment or, in the case of an appeal against an assessment made under section 92, within the first three months of the year of assessment following the year of assessment for which the assessment was made (or within such extended period as regards those days or months as may be allowed under section 100) a written notice of appeal in the prescribed form stating the grounds of appeal and containing such other particulars as may be required by that form.” [34] Section 99 of the ITA provides for an appeal mechanism for a party who is aggrieved by the assessment made in respect of him. What this entails is that there is an alternative remedy available to the applicant. [35] In this present application under Order 53 Rules of Court 2012, the applicant did not appeal to the Special Commissioner of Income Tax pursuant to Section 99 of the ITA. The issue therefore is whether the applicant is able to pursue this judicial review application without first having exhausted the alternative remedy available to the applicant. [36] In the case of Dell Global Business Center Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2021] 10 CLJ 411, Amarjeet Singh J expounded the issue of alternative remedy as reproduced below: “[23] The principles governing the alternative remedy issue is well-settled and are as enunciated by the Supreme Court in Government Of Malaysia & Anor v. Jagdis Singh [1987] 1 CLJ 451; [1987] CLJ (Rep) 110; [1987] 2 MLJ 185 (“Jagdis Singh”), which is incidentally a tax case. [24] The ratio decidendi of the Supreme Court is stated in the following paragraphs of the judgment: ... it is not a rigid rule that whenever there is an appeal procedure available to the applicant he should be denied judicial review. Judicial review is always at the discretion of the Court but where there are other avenue or remedy open to the applicant it will only be exercised in very exceptional circumstances. ... we would therefore hold that the discretion is still with the Courts but where there is an appeal provision available to the applicant certiorari should not normally issue unless there is shown a clear lack of jurisdiction or a blatant failure to perform some statutory duty or in appropriate cases a serious breach of the principles of natural justice. [Emphasis added] [25] In Jagdis Singh the criteria that may amount to exceptional circumstances were described as follows: