Subsection
(3) in appropriate cases a serious breach of the principles of natural justice. [9] The House of Lords decision in Preston v IRC [1985] 2 All E.R. 327; [1985] AC 835 cited by the Supreme Court is particularly relevant where at page 862 Lord Templeman said: "Judicial review process should not be allowed to supplant the normal statutory appeal procedure [but] the present circumstances are exceptional in that the appeal procedure provided by s. 462 cannot begin to operate if the conduct of the commissioners in initiating proceedings under s. 460 [which relates to the cancellation of tax advantages] was unlawful." [10] Obviously the reason why the House of Lords considered the case to be exceptional was because the appeal procedure could not begin to operate due to the unlawfulness of the commissioners’ conduct. [11] In the present appeal, the appellant was not faced with such impediment. Going by this authority, the appellant must show that the respondent was guilty of unlawful conduct in issuing the Notices of Assessment to entitle it to proceed by way of judicial review instead of the domestic appeal process. 7 [12] In Khoo Ah Imm & Ors v Datuk Bandar Kuala Lumpur & Anor [1997] Gopal Sri Ram JCA (as he then was) relying on Jagdish Singh (supra) said at page 525: "One of the grounds on which the remedy of certiorari may be withheld is where the applicant is able to obtain better or at least equally efficacious relief either in other proceedings or at an alternative forum. Sometimes the alternative remedy is given by statute. See, Government of Malaysia & Anor v. Jagdish Singh [1987] CLJ Rep 110; [1987] 1 CLJ 415." [13] There are two other cases that were decided along the same line: See Robin Tan Pan Heng v. Ketua Pengarah Kesatuan Sekerja Malaysia & Anor [2010] 9 CLJ 505 F.C. and Regina v. Chief Constable of The Merseyside Police, Ex Parte Calveley & Others [1986] 1 QB 424. In the latter decision, it was held by the English Court of Appeal that: "...the judicial review jurisdiction would not normally be exercised where there was an alternative remedy by way of appeal, save in exceptional circumstances; that the speed of the alternative procedure, whether it was as convenient and whether the matter depended on some particular or technical knowledge available to the appellate body were all factors to be taken into account in considering the circumstances were exceptional." [14] Learned counsel for the appellant referred to the Indian Supreme Court case of Harbanslal Sahnia v Indian Oil Corporation Ltd AIR [2003] SC 2120 where RC Lahoti J delivering the judgment of the court said: “So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies; (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or 8 the vires of an Act and is challenged. (See Whirlpool Corporation v Registrar of Trade Marks, Mumbai and Others [1998] 8 SCC 11).” [15] What we can gather from this Indian authority is that the position in India is no different from the position in Malaysia in that the exercise of the court’s ‘writ jurisdiction’ in India is only available “in an appropriate case”, as illustrated by the three examples of contingency given by the court. [16] Taking Jagdish Singh as the guiding principle, the position of the appellant vis-à-vis the respondent is clear – since there is another avenue open to the appellant to ventilate its dissatisfaction over the decision of the respondent in issuing the impugned Notices of Assessment, the court would only exercise its judicial review jurisdiction in very exceptional circumstances. [17] Exceptional means "unusual; not typical": see Concise Oxford English Dictionary 11th Edition. Very exceptional circumstances therefore means very unusual circumstances. What amounts to very unusual circumstances must depend on the factual matrix of each case. [18] As for the exercise of discretion, it is axiomatic that the power must be exercised judiciously and not capriciously, least of all wantonly. Judiciously means done with sensible judgment and not on an unaccountable mood swing. [19] As to the proper approach to be taken by the appellate court in deciding whether to allow or to dismiss an appeal against the exercise of discretion by the lower court, we need only refer to the Federal Court case of Vasudevan Vazhappulli Raman v T. Damodaran PV Raman & Anor [1981] CLJ 84; [1981] CLJ (Rep) 101; [1981] 2 MLJ 150 where 9 Abdoolcader J (as he then was) delivering the judgment of the court said at page 103-104 (CLJ); page 151 (MLJ): “(b) Review of discretion by an appellate court There is a catenation of cases on this point and it will suffice to cull and refer to a few which restate the well-settled principles. An appellate court can review questions of discretion if it is clearly satisfied that the judge was wrong but there is a presumption that the judge has rightly exercised his discretion and the appellate court must not reverse the judge’s decision on a mere “measuring cast” or on a bare balance as the mere idea of discretion involves room for choice and for differences of opinion (Charles Osenton & Co v Johnston [1942] AC 130, 148 (at page 148) per Lord Wright). The Privy Council in Ratnam v Cumarasamy & Anor [1964] 1 LNS 237; [1965] 1 MLJ 228 that an appellate court will not interfere with the discretion exercised by a lower court unless it is clearly satisfied that the discretion had been exercised on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of justice, referring to Evans v Bartlam [1937] AC 473. The House of Lords, approving the decision of the English Court of Appeal in Ward v James [1966] 1 QB 273, held to the same effect in Birkett v James [1978] AC 297, 317, 326 (at pp. 317, 326). For good measure, we would refer to the felicitous expression of Goulding J in Re Reed (a debtor) [1979] 2 All ER 22, 25 on this point (at p. 25): ‘… the duties of an appellate court in such matter as this are, in my judgment, confined to those normally exercisable where the lower court has a discretion, that is to say, we are not justified in setting aside or varying an order simply because we may think we might have come to a different conclusion ourselves on similar material. We can only interfere if either we can see that the court below has applied a wrong principle, or has taken into account matters that are in law irrelevant, or has excluded matters that it ought to have taken into account, or otherwise that no court, properly instructing itself in the law, could have come to the conclusion which in fact was arrived at.’” [20] The question therefore is whether the learned judge had exercised his discretion on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of justice when he decided to dismiss the appellant’s application for judicial review. 10 [21] Having given the matter careful consideration, we were not persuaded that the learned judge had fallen into such error. On the contrary, we were of the view that on the evidence before him, the learned judge was perfectly entitled to come to the conclusion that the appellant had not shown exceptional circumstances. [22] There is nothing exceptional about the appellant’s case to entitle it to by-pass the domestic appeal process prescribed by section 99 of the ITA. Nor could we find "very exceptional circumstances", in the sense that there was a clear lack of jurisdiction, or a blatant failure to perform some statutory duty, or a serious breach of the principles of natural justice that the respondent can be said to be guilty of when he issued the Notices of Assessment. [23] The dispute was over the decision of the respondent to issue the Notices of Assessment for the years of assessment 2008, 2009 and 2013, for which the appellant’s remedy lies in appealing to the Special Commissioners in accordance with section 99 of the ITA. That would be the proper avenue for the appellant to challenge the decision of the respondent: Ketua Pengarah Hasil Dalam Negeri v Alcatel-Luscent (M) Sdn Bhd & Anor [2017] 2 CLJ 1; [2017] 1 MLJ 563. [24] This court’s decision in Ta Wu Realty Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri & Another [2008] 6 CLJ 235 is also relevant where it was held that any question pertaining to the merits of the assessment made by the Director General of Inland Revenue is a matter that is better reserved for the Special Commissioners or a matter to be transmitted to the High Court by way of case stated. At paragraph [6] of the judgment this is what the court said: 11 “[6] Before the Special Commissioners a taxpayer, in this case the appellant, will have all the opportunity to ventilate his disgruntlement, with every opportunity to tender exhibits, and give oral evidence if necessary (Director-General of Inland Revenue v Lahad Datu Timber Sdn Bhd [1978] 1 MLJ 203). If the taxpayer is successful, the tax so paid will be refunded in full. A taxpayer has an additional safeguard in that in the event a dispute on questions of law is identified it may be transmitted to the High Court by way of stated.” [25] The point needs to be emphasised that the right of appeal provided by section 99 of the ITA is a right accorded by statute, which means the Special Commissioners had no discretion not to hear the appellant’s appeal on the merits if the appellant had proceeded under section 99 of the ITA. In contrast, judicial review is always at the discretion of the court. [26] The appellant’s contention that the matter should preferably be dealt with by way of judicial review rather than by way of an appeal to the Special Commissioners was premised on the following arguments: