Kelab Pembina-Pembina Selangor (Selangor Builders' Club) v Lembaga Hasil dalam Negeri (Lhdn) (WA-25-113-05/2025)

This was a motion by the Applicant for leave to commence judicial review proceedings for the following reliefs:

an order of certiorari to quash the decision of the Inland Revenue Board Malaysia (‘IRB’) dated 12.2.2025, which rejected the Applicant’s appeal against its Adjudication

an order of mandamus to compel the IRB to refund the ad valorem duty in the sum of RM94,400.00 which was paid by the Applicant to the Respondent and to impose the nominal stamp duty of RM10.00 pursuant to Item 32(e) of the First Schedule in the Stamp Act 1949 [Act 378] (‘SA 1949’) on the transaction for transfer of ownership.

2.

After having considered the cause papers and the oral and written submissions of the parties, I had, on 31.10.2025, accepted the AG’s objections and consequently, the Applicant’s application for leave to commence judicial review proceedings was dismissed.

These are my full grounds of judgment for the decision.

The Applicant is a non-profit association registered on 27.11.1952 under the Societies Act 1966 [Act 832] for social and welfare purposes.

Around the year 1998, the Applicant purchased the Property held under title Grant 35900, Lot 115, Section 49, Town of Kuala Lumpur, Federal Territory of Kuala Lumpur with the address at No. 13, Jalan Gereja, 50250 Kuala Lumpur (‘Property’).

According to the Applicant, the solicitor who was handling the transaction relating to the Property had advised the Applicant to register the Property in the name of the Trustees of the Applicant in accordance with Rule 20 of the Applicant’s Rules (‘Rules’).

The Applicant’s Committee Members agreed with the solicitor’s advice and the Trustees comprising of the Chairman, Secretary and Treasurer was appointed.

Over the years, several changes to the Trustees took place due to death or old age.

At the Applicant’s Annual General Meeting (‘AGM’) held on 12.3.2004, it was resolved that one Law King Boon @ Lau Keng Boon be appointed by the Applicant to be the new trustee in place of the deceased trustee, Lim Thiam Thoo @ Lim Kim Toh. Subsequently, by way of a Deed of Trust dated 5.8.2004 (‘Deed of Trust’), the new trustee was duly appointed and the Property was thereafter held by the surviving trustees and the new trustee.

Around the year 2021, the Applicant’s AGM was held where it was decided that the Deed of Trust be revoked and the Property to be registered in the Applicant’s name.

Steps were then taken to effect the transfer of the Property from the Applicant’s Trustees to the Applicant. The transfer was solely intended to remove the names of the Trustees from the title and to make the Applicant the sole lawful and registered proprietor of the Property without the need for further holding in trust.

On 5.4.2021, Messrs Johan Arafat Hamzah & Mona (‘JAHM’) submitted Form 14A under the National Land Code to effect the transfer of the Property.

On 9.5.2021, the IRB issued the Notis Taksiran Pindah Milik Harta Tanah (Duti Ad Valorem) to the Applicant to inform that the stamp duty on the transfer of the Property was RM94,400.00. This amount was paid by the Applicant on 12.8.2021.

In the letter dated 2.9.2021, JAHM appealed to the IRB for the amount paid as stamp duty to be refunded to the Applicant on the grounds that: “1. Hartanah tersebut adalah dipegang oleh Pemindahmilik sebagai pemegangaAmanah Sahaja dan bukan sebagai pemilik berdaftar Hartanah tersebut;

Penerima Pindahmilik adalah pemilik sebenar Hartanah tersebut; dan

Penerima Pindahmilik adalah sebuah pertubuhan bukan untung yang ditubuhkan untuk tujuan sosial dan kebajikan dan oleh itu sepatutnya dikecualikan daripada membayar duti setem.”.

According to the Applicant, JAHM informed them that the IRB had said that there is no legal provision where stamp duty can be exempted, even in the circumstances where a trustee transfers property to a beneficiary as the registered owner. However, the IRB never officially replied to the Applicant regarding the outcome of the appeal.

On 31.3.2022, the Applicant’s current solicitors, Messrs. Zailan & Associates (‘ZA’) had submitted a “rayuan taksiran untuk menambah nama Lim Thiam Leong sebagai Pemegang Amanah” and a Notis Taksiran Pindaan was issued on 4.4.2022.

On 4.9.2024, ZA appealed to the IRB to reconsider the matter as the Applicant was of the view that only a nominal stamp duty in the sum of RM10.00 should be imposed and the payment of RM94,400.00 which was made should be refunded to the Applicant. The nominal stamp duty was pursuant to Item 32(e) of the First Schedule to the SA 1949 which provides as follows: “32. Conveyance, Assignment, Transfer or Absolute Bill of Sale: …

Of any property as above where the transaction is between trustees and where – …

(ii) the beneficial interest in the property does not pass RM10.00”.

The IRB replied on 25.9.2024 that “… pihak kami telah membuat semakan lanjut ke atas nombor adjudikasi H01BC80B08XB0PT. Semakan mendapati bahawa rayuan taksiran bagi adjudikasi tersebut adalah tidak dapat dipertimbangkan mengikut Seksyen 38(A)(2), Akta Setem 1949….”.

ZA wrote again to the IRB on 30.10.2024 to which the IRB replied vide the letter dated 16.12.2024 that “… Pihak kami telah membuat semakan lanjut ke atas nombor adjudikasi H01BC80B08XB0PT dan untuk makluman tindakan yang telah diambil oleh LHDNM adalah teratur mengikut Akta Setem 1949. …”.

A final letter was sent by ZA to the IRB on 17.1.2025 wherein it was alleged that “LHDN yang tidak memberi maklum balas berkaitan dengan surat dan emel daripada peguamcara yang terdahulu sehingga menyebabkan kelewatan untuk Anak guam membuat rayuan.”.

The IRB responded on 12.2.2025 by maintaining its stand in the following words: “3. Permohonan rayuan bagi pihak pelanggan tuan iaitu Tetuan Kelab Pembina-pembina Selangor (Selangor Builder’s Club), selepas ini disebut sebagai SBC, dikemukakan melalui surat bertajuk - Rayuan Pemulangan Duti bertarikh 02.09.2021 yang diterima di Pejabat Petaling pada 08.09.2021. …

Pada 31.03.2022 pihak tuan telah memasukkan rayuan taksiran untuk menambah nama Lim Thiam Leong sebagai Pemegang Amanah. Notis Taksiran Pindaan telah dikeluarkan pada 04.04.2022. Seterusnya pihak tuan telah menghantar surat permohonan bayaran balik bertarikh 04.09.2024 yang diterima di pejabat kami pada 05.09.2024.

Berdasarkan rekod kami, rayuan yang dihantar selepas notis pertama dan notis pindaan telah melebihi 30 hari dari tarikh notis. Merujuk kepada Seksyen 38(A)(2) Akta Setem 1949, rayuan hendaklah dibuat dalam tempoh 30 hari selepas tarikh taksiran atau taksiran tambahan atau tempoh lanjut yang seumpama yang Pemungut boleh membenarkan dalam mana-mana kes yang berkenaan. Oleh yang demikian, permohonan rayuan tuan tidak dapat diproses kerana tidak mematuhi Seksyen 38(A)(2) Akta Setem 1949.”.

The motion for leave to commence judicial review proceedings and other cause papers were then filed on 9.5.2025.

The learned SFC had cited several case authorities which have expounded on the role of the AG and these may be summarised as follows:

under O. 53 of the RC 2012, the application for judicial review must be served on the AG because judicial review is a principal tool of public law applicable to public bodies. As the guardian of public interest, the AG is a nominal party in all judicial review applications. This is to ensure that the AG vets all judicial review applications in order to ascertain if his participation is warranted. The AG’s function is to safeguard public authorities or public institutions from unwarranted litigation and to deter ill-founded claims that might otherwise paralyse the administration of public functions. This role serves to balance access to judicial review with the need for efficient governance [see Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] 4 MLJ 656 (CA) and Messrs Tai Choi Yu & Co, Advocates (suing as a firm and Tai Choi Yu as sole proprietor) v Arifin bin Zakaria & Anor [2020] 5 MLJ 207 (CA)];

if the AG elects to appear at the leave stage, he does so, not as a representative of the respondent, but in his own right as the AG, in discharging his public duty [see Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544 (FC)];

as the leave stage is not concerned with the merits of the judicial review application, the AG is not required under the law to file any affidavit in reply (‘AIR’). The AG’s role is to assist the court in sieving out frivolous applications by showing whether the applicant has an arguable case and has met the threshold for leave for judicial review as explicated by the Court of Appeal in Dato’ Sri Mohd Najib bin Tun Hj Abdul Razak v Attorney General & Ors [2020] 3 MLJ 114 as follows: “[33] A court hearing a judicial review application must determine whether ‘prima facie there is a genuine case for review’. It is accepted that the threshold requirement is low, for leave will only be refused where an application is:

frivolous and vexatious or hopeless;

made by busybodies with misguided or trivial complaints of administrative errors;

misconceived;

unarguable or groundless;

where there is a more appropriate alternative procedure; or

where an application for judicial review is an inappropriate procedure.” (see too, Peguam Negara Malaysia v Chin Chee

if, for instance, the applicant is a busybody; the application is made out of time or against a person or body that is immunised from being impleaded in legal proceedings; or the subject matter of the review is one which by settled law is non-justiciable, and the court is satisfied that the threshold is not met, the application for leave should be refused and dismissed in limine [see Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 60 (CA)]

In this regard, the Applicant had argued that the AG did not address the principal matter highlighted by the Applicant, namely the validity of the Respondent’s imposition of ad valorem duty on the transfer of the Property and that the AG has failed to file an

However, based on the cases as abovementioned, the Applicant’s argument is clearly misconceived as the AG’s role at the leave stage of judicial review is not to defend the IRB’s decision but rather to ensure that the threshold criteria for judicial review are met. The AG’s involvement does not create an obligation to contest or verify evidence; it merely grants the AG a procedural right to be heard in determining whether the threshold for leave has been met.

The Federal Court in WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Berhad [2012] 4 CLJ 478 at p 488 said: “[12] … At the leave stage, on a quick perusal of the material available, if the court thinks that subsequently at the substantive hearing stage an arguable case may be disclosed, and the relief sought may be granted, leave should be granted (IRC v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617). In Malaysia, the Federal Court in Mohd Nordin Johan v. The Attorney-General, Malaysia [1983] 1 CLJ 130; [1983] CLJ (Rep) 271 when allowing the appeal, opined that ‘the point taken was not frivolous to merit refusal of leave in limine and justified argument on a substantive motion for certiorari’. Without the need to go into depth of the abundant authorities, suffice if we state that leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though ie, unless the matter for judicial review is amenable to judicial review absolutely no success may be envisaged.”.

In gist, the learned SFC submitted for the AG that leave for judicial review should be refused by the court because –

the Applicant’s objections were filed outside the 30-days period under sub-s 38A(2) of the SA 1949 and no extension was sought or granted;

the Applicant failed to appeal to the High Court under sub-s 39(1) within 21 days of the Respondent’s decision under sub-s 38A(5);

the subsequent correspondence relied upon by the Applicant does not constitute a fresh decision capable of being challenged; and

entertaining the instant application would undermine statutory finality, open the floodgates to stale claims and encourage disregard for legislated timelines.

For the avoidance of doubt, I did not consider the Ringkasan Hujahan Pemohon (encl. 24) as the court did not give any direction for such submission to be filed. 1st Objection: Whether the Applicant’s objections in respect of the Notice of Assessment/ Amended Assessment are statutorily time-barred

Section 38A of the SA 1949 is re-produced below for ease of reference: “Notice of objection

(1) Any person who is dissatisfied with an assessment or additional assessment of the Collector under this Part may, by written notice (referred to in this Act as “notice of objection”), object to the assessment or additional assessment and apply to the Collector to review the assessment or additional assessment.

Every notice of objection shall state the grounds of objection to the Collector’s assessment or additional assessment and shall be made within thirty days after the date of the assessment or additional assessment or such further period as the Collector may allow in any particular case.

The person giving a notice of objection shall furnish further particulars and information in relation to the grounds of the objection if required to do so by the Collector in writing.

The Collector shall, on receipt of a notice of objection and such further particulars and information as he may require under subsection (3), review the assessment or additional assessment.

After the objection has been determined, the Collector shall notify the person in writing of his decision.

Where, on review, it appears to the Collector that the amount of duty originally or additionally assessed is excessive, he may cancel the original or additional assessment and make such other assessment in substitution of the original or additional assessment and shall serve on the person a notice of substituted assessment.

The making of an objection shall not relieve the person of liability to pay the duty as required by this Act.

Any reference in this Act to an assessment or additional assessment shall be construed as including a reference to a substituted assessment under subsection (6).”.

The use of the word “shall” in sub-s 38A(2) denotes a mandatory obligation. The statutory time limit is peremptory and failure to comply renders the objection incompetent unless an extension is expressly granted by the Collector.

The Applicant contended that, after the Notice of Adjudication was issued by the IRB on 9.5.2021, JAHM had submitted the appeal vide its letter to the IRB dated 2.9.2021. However, there was no reply or outcome for the appeal until the Applicant was represented by ZA.

The Applicant asserted that the IRB only provided the reason of the rejection vide the letter dated 12.2.2025, in response to ZA’s letter dated 17.1.2025. The Applicant relied on the following excerpt in Ketua Pengarah Hasil Dalam Negeri v Yayasan Buah Pinggang Kebangsaan Malaysia [2024] 4 MLJ 288 in contending that the calculation of three months to commence judicial review proceedings shall begin from 12.2.2025: “[32] But here, it is quite clear from the matrix of facts that although LHDN decided to revoke the tax exemption status per letter dated 29 August 2019, albeit wrongly relying on s 148(b)(iii) of the Income Tax Act 1967 (when it should be s 148(b)(ii) of the Act) — they nevertheless conducted themselves in such a manner as to demonstrate quite unequivocally that they were willing to, and did reconsider or review their earlier decision. Hence, LHDN’s letter dated 24 December 2019 to NKF requesting for further information/input and thereafter, the meeting on 12 February 2020. [33] In our view, the circumstances here are such that LHDN’s earlier decision cannot be considered to be decisive as the decision maker LHDN had expressly, overtly or impliedly or by conduct, agreed to and did, reconsider or review the earlier decision. As such, for purposes of judicial review, time only started running from the later decision, albeit, that it re-iterated or re-confirmed and maintained the earlier decision. The position we take is that where the public authority’s conduct indicated a willingness to reconsider its earlier decision, then time runs from the later decision. … [37] In the circumstances, it is quite obvious that there was a willingness on the part of LHDN to re-consider and they did re-consider and review the matter. No doubt, their decision (per letter dated 17 June 2020) was to maintain their earlier decision (29 August 2019) — revoking NKF’s tax exempt status. Looking at all the circumstances, it cannot be said that LHDN’s earlier decision dated 29 August 2019 is in fact the impugned decision. We agree with the submissions that were made by Counsel for NKF – that the impugned decision for purposes of judicial review is the one which was conveyed via LHDN’s letter dated 17 June 2020, albeit that it was a reiteration of LHDN’s earlier decision dated 29 August 2019 revoking the tax-exempt status. On that premise and applying the principle that was enunciated in Per Ah Seng Robin’s case, we concluded that the judicial review which was filed on 17 September 2020 was filed within three months as per O 53 r 3(6) of the Rules of Court 2012.”.

The Applicant submitted that the Court of Appeal has held that, where a public authority has demonstrated a willingness to reconsider a prior decision, the limitation period for filing an application for judicial review commences from the date of the subsequent decision made following such reconsideration, and not from the date of the original decision.

Applying the principle articulated in the Yayasan Buah Pinggang case, the Applicant contended that the series of meetings, correspondences and discussions between ZA and the IRB from July 2024 to February 2025 demonstrate that the IRB, whether expressly or impliedly, or by conduct, had agreed to, and in fact, reconsidered their earlier decision.

In support of its argument on the IRB’s conduct, the Applicant relied on the discussion which took place between the IRB’s officer and the Applicant’s representatives on 11.7.2024 as mentioned at the start of ZA’s letter dated 4.9.2024.

In addition, the Applicant relied on the Statutory Declaration affirmed by Wan Fazila Salmi binti Wan Yaacob, a Legal Assistant at JAHM on 29.10.2024 (‘SD’) wherein she stated, among others, that: “4. Sejurus selepas saya menerima Notis Taksiran tersebut, saya telah menghubungi pihak LHDN cawangan Petaling berkenaan dengan Duti Setem yang dikenakan. Saya telah menyuarakan bahawa Duti Setem yang sepatutnya dikenakan adalah Duti Setem nominal sebanyak RM10.00 kerana Pemberi Pindahmilik hanya pemegang amanah. Suratcara pindahmilik tersebut adalah hanya untuk mendaftarkan nama pemilik benefisial iaitu Kelab Pembina-Pembina Selangor sebagai pemilik berdaftar. Suratcara pindahmilik tersebut tidak sama sekali menukar pemilik benefisial Hartanah tersebut.

Akan tetapi, saya telah diberitahu oleh pihak LHDN bahawa tiada peruntukkan undang-undang yang mengecualikan pembayaran Duti Setem walaupun dalam keadaan pemberi pindahmilik adalah pemegang amanah dan pindahmilik dilakukan untuk mendaftarkan pemilik benefisiari sebagai pemilik berdaftar.

Saya telah beberapa kali membuat pertanyaan berkenaan perkara ini tetapi pihak LHDN tetap memberikan jawapan yang sama.”

The Applicant took the position that the filing of its application was within the time limit prescribed under O. 53, r. 3(6) RC 2012 viz. “An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.” as time should be computed from the date of the IRB’s subsequent decision conveyed through the letter dated 12.2.2025, rather than from the date of the Notice of Assessment on 9.5.2021, even where such decision merely reaffirms or maintains the original decision.

I have considered the submissions of the Applicant and the AG and the following are my findings:

the Applicant’s first objection vide JAHM’s letter dated 2.9.2021 in respect of the Notice of Assessment issued on 9.5.2021 was indisputably outside the 30-days limit as stipulated under sub-s 38A(2) of the SA 1949. No extension of time was sought by the Applicant;

the Applicant’s second objection dated 4.9.2024 vide ZA’s letter dated 4.9.2024, which was received by the IRB on 5.9.2024, in respect of the Amended Assessment issued on 4.4.20222, was likewise lodged beyond the 30-days statutory period. Similarly, no extension of time was sought by the Applicant;

IRB’s rejection of the second objection vide their letter dated 25.9.2024 constitutes a final decision under sub-s 38A(5) of the SA 1949;

the Applicant’s reliance on the correspondence dated 30.10.2024, 16.12.2024, 17.1.2025 and 12.2.2025, and specifically the IRB’s replies as fresh decisions, was a mischaracterisation. IRB’s responses merely reiterate their position that the objections were out of time. They do not amount to reconsiderations and cannot revive lapsed statutory rights. Relying on subsequent letters to extend the judicial review limitation period is an abuse of process. If such arguments were accepted, statutory finality would be undermined, leading to perpetual litigation (see Kerajaan Malaysia v Tay Chai Huat [2012] 3 MLJ149);

the SFC has correctly distinguished the case of Yayasan Buah Pinggang because in that case, the IRB had requested for further information or input and there was a reconsideration of the matter by the IRB whereas in the present case, the IRB had maintained its stand at all times;

the SD does not assist the Applicant’s case in any way as the statements in paragraphs 4 to 6 of the SD are in relation to events which happened between 9.5.2021 to 12.8.2021 and JAHM should be aware of the legal requirement in sub-s 38A(2) of the SA 1949. In any event, the court was prepared to accept that the 30-days period started to run from the date when the Amended Assessment was issued on 4.4.20222 and therefore, the SD adds no value to the Applicant’s argument as regards the IRB’s conduct; and

at all material times the Applicant was represented by JAHM and ZA. Any assertion of ignorance of the statutory deadlines is indefensible 2nd Objection: Whether the Applicant failed to exhaust statutory domestic remedies

Sub-s 39(1) and s 78 of the SA 1949 provides as follows: “Appeal to High Court

(1) Any person who is dissatisfied with the decision of the Collector under subsection 38A(5) may, within twenty-one days after the person is notified in writing of that decision and upon payment of duty in conformity therewith, appeal against the decision to the High Court by filing a notice of appeal with the High Court and may for that purpose require the Collector to state and sign a case, setting forth the question upon which is opinion was required, and the decision made by him.”. “Revision of acts of Collector

All decisions, orders and acts of the Collector shall be open to revision by the Minister of Finance and may by him be ordered to be revised, altered or modified; and any instrument purporting to have been stamped or re-stamped by order of the Minister of Finance shall be received as duly stamped under this Act.”.

The learned SFC submitted that the Applicant’s application for judicial review was frivolous and vexatious and therefore, in contravention of O. 53 RC 2012 because the SA 1949 has provisions for domestic remedies and the Applicant should have exhausted these remedies before coming to court.

In this case, the Applicant had at least three separate statutory avenues, namely –

objection under s 38A;

appeal to the High Court under s 39; and

revision by the Minister of Finance under s 78, but the Applicant did not utilise the remedies under ss 39 and 78 at all.

I agree with the AG’s submission.

The SA 1949 has expressly provided the remedies for an aggrieved party. The courts have consistently held that, where Parliament has provided a specific statutory procedure, that procedure must be followed before judicial review can be invoked (see the cases cited by the SFC, namely, Government of Malaysia & Anor v. Jagdis Singh (1987) 2 MLJ 185, Khoo Ah Imm v. Datuk Bandar Kuala Lumpur & Anor (1997) 3 CLJ 519, Cheah Foong Chiew v. Lembaga Jurutera Malaysia [1999] 3 MLJ 110, Ta Wu Realty Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri & Anor [2008] 6 CLJ 235 and Ketua Pengarah Hasil Dalam Negeri v. Mudah.My Sdn Bhd [2017] 2 MLJ 197).

Although the Applicant had drawn the attention of the court to the decision by the High Court in Flextronics Shah Alam Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2018] MLJU 590 to support the submission that the existence of a domestic remedy and non-exhaustion of the same is no bar to an application for judicial review, that case concerned s 99 of the Income Tax Act 1967 [Act 53] on the right of appeal to the Special Commissioners. The Applicant did not produce any case authority in respect of the SA 1949 and according to the learned SFC, there is none to date.

Following the rejection of the Applicant’s appeal vide the IRB’s letter dated 25.9.2024, the Applicant has the right to appeal to the High Court within 21 days under s 39. The Applicant failed to do so.

As discussed previously, the Applicant’s plea of ignorance of the statutory timelines under sub-ss 38A(2) and 39(1) of the SA 1949 is unsustainable for the reason that the Applicant was represented by JAHM and ZA throughout the material period.

It is trite that when Parliament has prescribed a complete code of remedies with specific timelines, those timelines are to be strictly enforced. Judicial review cannot be a substitute for a missed statutory appeal.

The Applicant, being dissatisfied with the Collector’s decision, should have made an application for revision to the Minister of Finance as the Minister has the power to revise any decision, order or acts of the Collector as provided under s 78 of the SA

1949.

In the upshot, as the Applicant has failed to exhaust the domestic remedies under the SA 1949, the application to commence judicial review is premature and procedurally improper.

Premised on the aforesaid considerations, the application for leave to commence judicial review proceedings was dismissed with costs of RM5,000.00. DATED: 7 NOVEMBER 2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Applicant: Nur Izzatul Amirah binti Zawawi (Dato’ Haji Zailan bin Haji Mohamed and Nur Amyra Binti Dato’ Zailan with her)