Jingga Jaya Sdn. Bhd v Ketua Pengarah Hasil dalam Negeri (JA-14-2-06/2020)

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25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 1 IN THE HIGH COURT OF MALAYA IN JOHOR BAHRU IN THE STATE OF JOHOR DARUL TA’ZIM CIVIL APPEAL NO: JA-14-2-06/2020 BETWEEN JINGGA JAYA SDN. BHD (Company No: 197269-X) ...APPELLANT AND KETUA PENGARAH HASIL DALAM NEGERI ...RESPONDENT Kes Dinyatakan oleh Pesuruhjaya Khas Cukai Pendapatan Bagi Pendapat Mahkamah Tinggi

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Menurut Perenggan 34 Jadual 5 Akta Cukai Pendapatan 1967 [DALAM PERKARA RAYUAN NO. PKCP(R) 422/2015 DI HADAPAN PESURUHJAYA KHAS CUKAI PENDAPATAN BETWEEN JINGGA JAYA SDN. BHD. (COMPANY NO: 197269-X) ...APPELLANT AND KETUA PENGARAH HASIL DALAM NEGERI ...RESPONDENT] GROUNDS OF JUDGMENT 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 2 Introduction [1] This was an appeal (“this Appeal”) against the decision of the learned Special Commissioners of Income Tax (“SCIT”) delivered via Decision Order dated 13 February 2018, pursuant to paragraph 34 of Schedule 5 to the Income Tax Act 1967 (“Income Tax Act”), which reads:

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Schedule 5 [Section 102] APPEALS Hearing of appeals … 34. (1) Either party to proceedings before the Special Commissioners may appeal on a question of law against a deciding order made in those proceedings (including a deciding order made pursuant to subparagraph 26(b) or (c)) by requiring the Special Commissioners to state a case for the opinion of the High Court and by paying to the Clerk at the time of making the requisition such fee as may be prescribed from time to time by the Minister in respect of each deciding order against which he seeks to appeal. [2] The SCIT had dismissed the Appellant’s appeal against the assessment raised by the Respondent on the Appellant under the Real Property Gains Tax Act 1976 (“the RPGT Act”) for the Year of Assessment (“Y/A”) 2014, in the sum of MYR201,000. 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 3 The background facts [3] The Appellant is a company incorporated in Malaysia, which entire shareholding was formerly owned by Rockfound Sdn Bhd (“Rockfound”). Rockfound had sold its entire shareholding in the Appellant to one Datuk Chua Teck Hwee (“Datuk Chua”) via a share agreement dated 20 April 2009 (“the Share Agreement”) for MYR1.68 million, which final payment was made on 12 October 2009. The shares were then divided between Datuk Chua (99,000 units) and his wife, Datin Low Lian Hiong (1,000 units). [4] On 20 April 2009, that is, the date of the Share Agreement, the Appellant, which was the registered owner of 6 pieces of properties (“the Properties”), executed a Declaration of Trust signed by Datuk Chua and his wife on behalf of the Appellant, which purportedly made him the beneficiary of the Properties. [5] The Properties were then sold to Tay Kim Huat and Chua Fen Fatt (“the Purchasers”) vide sale and purchase agreement (“SPA”) dated 15 May 2014. A Declaration of Trust for the Beneficial Interests of Chua Teck Wee dated 1 June 2014 was then executed by Datuk Chua and his wife on behalf of the Appellant for the full personal benefit of Datuk Chua. [6] Datuk Chua then submitted Forms Cukai Keuntungan Harta Tanah (“CKHT”) 1A and 3 to the Respondent, declaring himself as the disposer of the Properties and claiming exemption of real property 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 4 gains tax (“RPGT”) on the ground that the Properties disposed by himself in May 2014, had been held for a period exceeding five years. [7] The Respondent conducted an audit and decided that the disposal of the Properties was assessable on the Appellant and not Datuk Chua. As such, notice of assessment for RPGT vide Form K (Assessment Notice) dated 21 December 2014 was raised on the Appellant. Dissatisfied, the Appellant appealed to the SCIT by way of Form Q (Appeal Procedure). [8] The SCIT dismissed the appeal and as a result thereof, the Appellant appealed to this Court. This Appeal was dismissed for the following reasons. The applicable law [9] The curtain raiser to this Appeal is the Privy Council case of Chua Lip Kong v Director General of Inland Revenue [1982] 1 MLJ 235, where it was elucidated by Lord Diplock: Findings of primary facts by the Special Commissioners are unassailable. They can be neither overruled nor supplemented by the High Court itself; … … From the primary facts admitted or proved the Commissioners are entitled to draw inferences; such inferences may themselves be inferences of pure fact, in which case they are as unassailable as the Commissioners' finding of a primary fact; … [Emphasis added.] 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 5 [10] This was affirmed by the Federal Court in Director General of Inland Revenue v Rakyat Berjaya [1994] CLJ (Rep) 108 and the former Supreme Court in Lower Perak Co-Operative Housing Society Berhad v. Ketua Pengarah Hasil Dalam Negeri [1994] 3 CLJ 541. In the latter case, instructional views were provided by Edgar Joseph Jr. SCJ on the duty of the High Court when hearing appeals from the SCIT, in the following passages: First of all, it would be pertinent to say that in considering this appeal we have kept in the forefront of our minds the much quoted principles enunciated by Lord Radcliffe in Edwards v. Bairstow and Harrison [1956] AC 14 at 35 regarding the duty of the Court when hearing appeals from Commissioners in tax cases. It will be recalled that in that case what Lord Radcliffe said (at p. 35) was this: I think that the true position of the Court in all these cases can be shortly stated. If a party to a hearing before Commissioners expresses dissatisfaction with their determination as being erroneous in point of law, it is for them to state a case and in the body of it to set out the facts that they have found as well as their determination. I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the Court it is its duty to examine the determination having regard to its knowledge of the relevant law. [Emphasis added.] [11] The rational for this approach is to prevent the court from ‘being buried under an avalanche of tax appeals by parties unhappy with the determination of the KPHDN and the SCIT’: per Abdul Wahab Patail JCA in Kenny Heights Development Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2016] 5 CLJ 923. 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 6 [12] Although it is a general rule that the finding of primary facts by the SCIT are unassailable, and can be neither overruled nor supplemented by the High Court itself, the exception is when there was no evidence on which such findings could be founded, or if it could be shown that it was a finding of fact which no reasonable person could arrive at. [13] At this juncture, it is crucial to note that it was the duty of the SCIT to have considered every relevant fact, both for and against the taxpayer, with due care; and if they had failed to take into consideration some material evidence or had overlooked some crucial fact, their decision would amount to a misdirection in law. In such instance, it would be the duty of the High Court to interfere, and in certain circumstances, the decision of the SCIT may be set aside on that ground: per Sharma J in NYF Realty Sdn Bhd v. Comptroller of Inland Revenue [1974] 1 LNS 100. [14] This was also explained by Anuar J in Mamor Sdn Bhd v. Director-General Of Inland Revenue [1981] 1 MLJ 117, in the following passages: With respect I am of the opinion that it is open for the High Court to review the decision of the Special Commissioners, if the Special Commissioners: 1. misdirect themselves on the law; or 2. answer the wrong question; or 3. omit to answer a question which they ought to have answered; or 4. took into account factors which they ought not to have: or 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 7 5. reached a conclusion on facts which is not supported by the evidence before them; or 6. made a finding of facts which no reasonable person in the circumstances would have arrived at. [15] The power of the Court to interfere is, therefore, quite limited where the findings of the SCIT are basically findings of facts. The Court will interfere only if there is no evidence to justify the finding of the SCIT or where the SCIT have applied erroneous tests in arriving at their conclusion or have drawn a wrong inference on the facts or have misdirected themselves in law. [16] Following from these principles, it was crucial to note that the burden of proof was on the Appellant to satisfy the court that the decision of the SCIT was based on the ‘misconception of the law or that their conclusion cannot be supported by the primary facts, and that conclusion on the mixed fact and law in this case was such that no reasonable SCIT could have reached it if they had correctly directed themselves’: per Hamid Sultan Abu Backer J (as he then was) in Kyros International Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2013] 3 CLJ 813. [17] The principle on the burden of proof is also codified in paragraph 13 of

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Schedule 5 to the Income Tax Act, which reads:

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SCHEDULE 5 [Section 102] APPEALS 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 8 …. 13. Onus of proof The onus of proving that an assessment against which an appeal is made is excessive or erroneous shall be on the appellant. Contentions, evaluation, and findings [18] Since it was undisputed that the Properties had been disposed when they were sold to the Purchasers, this Appeal pivoted on the question of who was liable to be assessed to tax, that is, whether it was the Appellant as the registered owner of the Properties, or Datuk Chua who claimed to be the beneficial owner of the same. [19] The subsequent issue, therefore, was whether a shareholder could claim ownership over a company’s property, by virtue of his shareholding. [20] The Respondent’s contention that it was the Appellant who was liable to be taxed, was premised on the concept of separate legal entity, absence of privity of contract and invalidity of the Declaration of Trust. As such, the Respondent submitted that Rockfound did not have either legal or beneficial right or interest over the Appellant’s Properties, which meant that it could not have disposed it to Datuk Chua. As such, Datuk Chua could not have had acquired the Properties through the Declaration of Trust, and it followed that he could not have sold the Properties to the Purchasers. In the final analysis, the Respondent submitted that the disposal of the Properties to the Purchasers could only have been done by the Appellant. 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 9 [21] The Appellant, on the other hand, relied heavily on the Declaration of Trust, and contended that it was valid, legal and gave Datuk Chua the right to dispose of the Properties, and as such, since he had disposed of the Properties after five years of acquiring them, the exemption from real property gains tax was proper. Whether there was disposal of the Appellants’ properties pursuant to the Share Agreement [22] At the outset, it is crucial to remember that Rockfound, being the holder of the entire shares of the Appellant, had no right to dispose of the Properties belonging to the Appellant. This is supported by a plethora of authorities including Official Receiver And Provisional Liquidator Maril-Rionebel (M) Sdn Bhd (Formerly Known As Kredin Sdn Bhd) v Anafartal Caddesi Sdn Bhd [2006] 4 MLJ 1, Hew Sook Ying v Hiw Tin Hee [1992] 2 MLJ 189, Abdul Aziz Bin Atan & Ors v Ladang Rengo Malay Estate Sdn Bhd [1985] 2 MLJ 165, and North Plaza Sdn Bhd v United Securities Sdn Bhd [2010] 1 MLJ 631. [23] This principle is rooted in the concept of separate legal personality which is basic and trite law, as explained by Abdul Malik J in Official Receiver And Provisional Liquidator Maril-Rionebel (M) Sdn Bhd (Formerly Known As Kredin Sdn Bhd) v Anafartal Caddesi Sdn Bhd, in the following passage: [35] I will now say something about the separate legal personality of a company. It is trite law that the company and its shareholders are separate legal entities. The sanctity of the legal personality of a limited company has always been preserved and guarded by the courts of law. To say that 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 10 property belonging to a company would also vest the company's shareholders an interest in the said property would be akin to driving a stake to the very heart of the doctrine of a separate legal entity which has been enshrined in our company law in respect of limited liability companies. [Emphasis added.] [24] Pursuant to the concept of separate legal personality, if there was going to be any disposal of the Appellant’s Properties to Datuk Chua pursuant to the Share Agreement, then the Appellant should have been made a party to such agreement; and its exclusion as a party to the Share Agreement led to a strong inference that the Properties could not have been disposed of to Datuk Chua. There was no justification for the principle of separation in the present case. [25] It was also the finding of the SCIT that Rockfound and Datuk Chua, pursuant to the Share Agreement had intended only for the sale of the shares and not for the sale of the Properties. [26] Although in the Share Agreement it was stated that the sale and purchase of the said shares and the said rights, title and interest shall be inclusive of the Properties, I have to agree with the SCIT that the focus of the Share Agreement was the sale of shares. This was fortified by the fact that despite obtaining the replacement document of title to the Properties in August of 2009, the Properties were never registered in the name of Datuk Chua. [27] If Rockfound did not and could not have transferred the Properties to Datuk Chua, then it follows that Datuk Chua could have not have disposed of the Properties to the Purchasers. Hence, it was the 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 11 Appellant, as the legal owner of the Properties, who had disposed of them to the Purchasers. Who were the parties to the SPA [28] In line with the Respondent’s contention that the Appellant remained the legal and rightful owner during the disposal of the Properties to the Purchasers, it is crucial to note that in the SPA, the Appellant was described as the ‘registered and beneficial’ owner of the Properties, in line with both sections 89 and 340(1) of the National Land Code 1965 (“National Land Code”), which read: Section 89 – Conclusiveness of register documents of title Every register document of title duly registered under this Chapter shall, subject to the provisions of this Act, be conclusive evidence— (a) that title to the land described therein is vested in the person or body for the time being named therein as proprietor; and (b) of the conditions, restrictions in interest and other provisions subject to which the land is for the time being held by that person or body, so far as the same are required by any provision of this Act to be specified or referred to in that document. *** Section 340 – Registration to confer indefeasible title or interest, except in certain circumstances (1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible. 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 12 [29] There was neither reference to the Declaration of Trust, nor to Datuk Chua as the beneficial owner of the Properties in the SPA. In fact, in clause 12.1 of the SPA, it was stated that the Appellant ‘irrevocably authorises the Purchaser’s solicitors to retain from the proceeds of the Purchase Price any part thereof which are legally required for payment of tax pursuant to Real Property Gains Tax Act 1976.’ In light of this, it was inequitable for Datuk Chua to claim to be the disposer of the Properties as their beneficial owner. Whether the Declaration of Trust was valid and enforceable [30] With regard to the validity of the Declaration of Trust, the Appellant submitted at length on the principles of trust, with reference to the Trust Act 1949, National Land Code and numerous cases, both local and from foreign jurisdictions. [31] However, in my view, the validity of the Declaration of Trust was highly questionable. It was executed on 20 April 2009, whereas completion of Share Agreement was only on 12 October 2009 when the final payment for the shares was made. This meant that at the time the Declaration of Trust was executed, Datuk Chua was not the beneficial owner, and as such, had no right to the Properties. In the absence of such authority, Datuk Chua’s claim to have sold the Properties to the Purchasers could not stand. [32] This is fortified by the provisions in the Share Agreement in several clauses which were brought to the attention of this Court. The clauses read: 3. COMPLETION 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 13 Upon payment of the full Purchase Price to the Vendors, the Company Secretary shall be authorized to proceed to effect the registration of the transfer of all the said Shares in favour of the Purchasers or their nominees. 4. THE VENDOR’S COVENANTS … 4.2 The Vendors hereby acknowledges and covenants with the Purchasers that all rights title and interest attaching to the said Shares shall belong to and accrue to the Purchasers upon full payment of the Purchase Price. [Emphasis added.] [33] In light of these clauses in the Share Agreement, the Appellant’s argument that Datuk Chua was the beneficial owner by virtue of the Declaration of Trust was untenable. [34] In contending that the Appellant was merely a trustee of the Properties, the Appellant submitted at length on section 206(3) of the National Land Code to contend that the concept of bare trustee has been recognised in Malaysia, and hence, this Court should follow suit in importing this equitable concept to conclude that Datuk Chua was in fact the beneficial owner of the Properties. The provision reads: Section 206 – Need for proper instrument of dealing, duly registered … (3) Nothing in subsection (1) shall affect the contractual operation of any transaction relating to alienated land or any interest therein. 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 14 [Emphasis added.] [35] In my view, it is crucial to note that registration is the cornerstone of the National Land Code and, therefore, section 206(3) of the same does not give parties carte blanche to ignore the other provisions of the National Land Code. All that is provided in section 206(3) of the National Land Code is that the contractual operation of any transaction relating to the alienated land is preserved. [36] In fact, although section 206(3) of the National Land Code has been relied upon to give effect to the concept of bare trustee, there is a plethora of authorities including Ong Chat Pang & Anor v Valliappa Chettiar [11971] 1 MLJ 224, to say that the heart of the matter of section 206(3) is to specifically enforce the contract between the bare trustee and the beneficial owner. Hence, over and above making payment of the full purchase price, and having a valid memorandum of transfer together with the document of title to the land handed to the purchaser, there is also a requirement for the beneficial owner to lodge a caveat on the land in question to protect his interest. [37] In this case, there was obviously no intention to transfer the legal interest in the Properties to Datuk Chua and there was no issue of enforcing any contract for the purchase of the Properties between the Appellant and Datuk Chua. As such, the concept of bare trustee in this context was not applicable. 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 15 [38] The validity of the Declaration of Trust was also questionable on the basis that there was an absence of an endorsement of the trust on the title of the Properties, as prescribed by section 344 of the National Land Code, which reads: Section 344 – Registration as trustee or trustees, and deposit of trust instrument (1) Where, by any instrument of dealing or order of the Court or Land Administrator, any alienated land or share or interest therein is transferred or transmitted to, vested in or created in favour of any person or body "as trustee", or two or more persons or bodies "as trustees", the Registrar shall so describe him, it or them in the memorial of registration. … (3) Where the words "as trustee" or "as trustees" have been included in any memorial of registration pursuant to subsection (1) or (2), or the corresponding provisions of any previous land law, any instrument declaring the trusts to which the land, share or interest is subject may, upon payment of the prescribed fee, be deposited with the Registrar for safe custody and reference; and no instrument of dealing shall be unfit for registration by reason only of the fact that it refers to any instrument so deposited. … [39] In any event, and in the final analysis, even if the Appellant was deemed to be merely the trustee of the Properties at the time it was disposed of to the Purchasers, it was crucial to note that the Appellant remains a chargeable person by virtue of section 6 of the RPGT Act, read together with paragraph 8 of Schedule 1 to the RPGT Act, which read: Section 6 – Chargeable persons 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 16 (1) Subject to this Act, every person whether or not resident in Malaysia for a year of assessment shall be chargeable with the tax in respect of a chargeable gain accruing to him in that year on the disposal of any chargeable asset. (2) The supplementary provisions in Schedule 1 shall have effect with respect to persons chargeable with the tax. ****

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Schedule 1 [Section 6] CHARGEABLE PERSONS … 8. Trustees A trustee (other than the trustee of an incapacitated person) shall be assessable and chargeable with the tax in respect of any chargeable gains accruing on the disposal of any chargeable asset of the trust. [Emphasis added.] [40] Thus, the Appellant, whether as registered owner or as trustee of the Properties, was the correct person chargeable. Whether the assessment issued was ultra vires and illegal [41] The Appellant contended further that the Respondent had acted erroneously and illegally as they raised the assessment on the Appellant instead, when it was it was Datuk Chua who had filed the RPGT returns. The Appellant submitted that pursuant to section 14(1) of the RPGT Act, the Respondent could raise an assessment, only 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 17 when the Appellant already filed a return under section 13(1) of the RPGT Act. However, in this case, the Appellant claimed that it had never filed any RPGT return under section 13(1). As such, the Appellant claimed that the assessment issued by the Respondent was illegal and ultra vires. Section 14(1) of the RPGT Act reads: Section 14 – Assessment (1) Where a person makes a return under subsection 13(1), the Director General may- (a) accept the return and make an assessment accordingly; (b) make an assessment after making such adjustments as he considers necessary; or (c) reduce an assessment made for the year of assessment for which the return was made, in giving effect to paragraph 7(4)(a). [Emphasis added.] [42] In my view, the Appellant’s contention was bereft of merit, in light of the word ‘may’ in section 14(1) of the RPGT Act, which gives the Director General discretion whether to accept the return, or to ask for further documents or whether to make an assessment. [43] In any event, it was the Respondent’s duty to raise an assessment pursuant to section 13(1) of the RPGT Act, which reads: Section 13 – Returns (1) Every chargeable person who disposes of a chargeable asset and every person who acquires the asset so disposed of shall, within sixty days (or such further period as the Director General may allow on a written request being made to him) of the date of disposal of that asset, make a return- 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 18 (a) specifying in respect of the asset disposed of the acquisition price, the disposal price and the gain or loss on the disposal; (b) furnishing all information necessary to determine the acquisition price and disposal price of the asset disposed of; and (c) where the market value of the asset is to be taken for the purposes of this Act, submit a written valuation of the asset by a valuer. [Emphasis added.] [44] Since the Respondent took the position that it was the Appellant who should have declared the disposal of the Properties to the Respondent, this triggered paragraph 10 of Schedule 1 to the RPGT Act, which reads:

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SCHEDULE 1 [Section 6] 10. CHARGEABLE PERSONS Responsibility of specified persons Where this Act specifies a person to be chargeable or assessable and chargeable with the tax under this Act, the person so specified shall, subject to this Act, be responsible for paying the tax payable by the chargeable person or body of persons in question and for all matters required to be done by virtue of this Act for or in connection with making the return or assessing the tax so payable. [Emphasis added.] [45] Since the Appellant had failed to make a return under section 13(1) of the RPGT Act, the Respondent was empowered, pursuant to section 14(2) of the RPGT Act, to make an assessment on the person which in the Respondent’s opinion, was assessable to tax. The provision reads: 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 19 Section 14 – Assessment (2) Where a person does not make a return under subsection 13(1), the Director General, if he is of the opinion that that person is chargeable with the tax, may make an assessment accordingly: Provided that the making of an assessment in respect of a person under this subsection shall not affect any liability otherwise incurred by that person by reason of his failure to make the return. [Emphasis added.] [46] The Appellant’s contention, therefore, that the assessment issued by the Respondent was illegal and ultra vires, could not hold water as the Respondent was performing its statutory duty pursuant to the provisions of the RPGT Act. [47] There were also averments by the Appellant that there was delay by the Respondent in replying to the Appellant’s petition of appeal, and that estoppel applied by failure of the Respondent to issue notices of additional assessment to the Appellant according to the best judgment of the Director General pursuant to section 91 (Assessments and additional assessment in certain cases) of the Income Tax Act. [48] In my view, these were feeble attempts by the Appellant to convince the Court that the assessment issued by the Respondent was not justified. In the final analysis, the Respondent had correctly issued the assessment to the Appellant, which was the legal and beneficial owner of the Properties, when they were disposed of to the Purchasers. As such, it was the Appellant who was liable to be assessed to tax. 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 20 Conclusion [49] In the upshot, therefore, based on the aforesaid reasons, and after careful scrutiny and consideration of all the evidence before this Court, including the written and oral submissions of both parties, and the Case Stated and Deciding Order by the SCIT, this Appeal was dismissed with costs. Dated: 25 September 2021 ………….…SIGNED…………… (EVROL MARIETTE PETERS) Judicial Commissioner High Court, Johor Bahru Counsel: For the Appellant – Michelle M. Maman; Messrs Cheong & Maman For the Respondent – Normareza Binti Mat Rejab (Senior Revenue Counsel) and Syazana Safiah Binti Rozman (Revenue Counsel) 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 21 Cases referred to:  Abdul Aziz Bin Atan & Ors v Ladang Rengo Malay Estate Sdn Bhd [1985] 2 MLJ 165  Chua Lip Kong v Director General of Inland Revenue [1982] 1 MLJ 235  Director General of Inland Revenue v Rakyat Berjaya [1994] CLJ (Rep) 108  Hew Sook Ying v Hiw Tin Hee [1992] 2 MLJ 189  Kenny Heights Development Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2016] 5 CLJ 923  Kyros International Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2013] 3 CLJ 813  Lower Perak Co-Operative Housing Society Berhad v. Ketua Pengarah Hasil Dalam Negeri [1994] 3 CLJ 541  Mamor Sdn Bhd v. Director-General Of Inland Revenue [1981] 1 MLJ 117.  North Plaza Sdn Bhd v United Securities Sdn Bhd [2010] 1 MLJ 631  NYF Realty Sdn Bhd v. Comptroller of Inland Revenue [1974] 1 LNS 100  Official Receiver And Provisional Liquidator Maril-Rionebel (M) Sdn Bhd (Formerly Known As Kredin Sdn Bhd) v Anafartal Caddesi Sdn Bhd [2006] 4 MLJ 1  Ong Chat Pang & Anor v Valliappa Chettiar [11971] 1 MLJ 224 Legislation referred to:  Income Tax Act 1967 – section 91, paragraphs 13 and 34 of Schedule 5  National Land Code 1965 – sections 89, 206(3), 340(1), and 344 25 September 2021 ……………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………………………….. 22  Trustee Act 1949  Real Property Gains Tax Act 1976 – sections 6, 13, and 14; paragraphs 8 and 10 of Schedule 1