Kerajaan Malaysia v R SURESH A/L RAMU (JA-21NCvC-6-05/2025)

This is the Plaintiff’s application by Notice of Application (Enclosure 9) under Order 14 rule 1 Rules of Court 2012 (“ROC 2012”) for final judgment against the Defendant in the sum of RM4,355,616.24, with interest at 5% per annum from the date of judgment until realisation, and costs.

The stated grounds of the application are, in substance, that –

tax assessed is due and payable upon service notwithstanding appeal;

increases/penalties are recoverable as tax due;

any dissatisfaction must be pursued by appeal to the Special

a certificate under section142(1) Income Tax Act 1967 [Act 53] is sufficient evidence for judgment.

Before this Court deals with the merits, this Court must first address the Defendant’s Affidavit in Reply and written submissions which were filed today at 8.04 a.m., on the very morning fixed for hearing.

The case management directions were clear and unequivocal. At the e-Review/CM on 29.10.2025, the Court directed the parties to comply with the following timelines – DIRECTION DUE DATE OF FILING Defendant’s affidavit in reply 17.11.2025 Plaintiff’s affidavit in reply 1.12.2025 Written submissions 15.12.2025

Reply submissions (if any)

12.2025

These directions were not advisory. They were court orders issued for orderly conduct of the proceedings and fairness to both parties, especially where the application is fixed for hearing and parties must have adequate time to consider the evidence and submissions.

On the material before this Court, the Defendant’s solicitors took no action whatsoever to comply. There was –

no application for extension of time;

no request to vacate or adjourn the hearing; and

not even a letter to Court seeking indulgence or explaining the default.

Instead, the Defendant filed both the affidavit and submissions on the morning of hearing, effectively placing the Plaintiff and the Court in a position where the Plaintiff has no fair opportunity to respond and the Court has no proper opportunity to digest the material in advance. That is plainly prejudicial and it undermines the Court’s case management function and the integrity of its directions.

Litigation must be conducted with due regard to court directions. A party cannot ignore clear timelines and then attempt to regularise the default by last-minute filing on the hearing date. Such conduct is wholly unacceptable and it risks jeopardising the Defendant’s own position.

In these circumstances, this Court exercises the Court’s discretion to reject –

the Defendant’s Affidavit in Reply filed today; and

the Defendant’s written submissions filed today.

The hearing will proceed on the basis of the existing filed materials only. As a matter of fairness, this Court will nonetheless allow learned counsel for the Defendant to make oral submissions confined strictly to points of law, without reliance on the rejected affidavit or written submissions.

The Plaintiff’s application is supported by the affidavit of Maisarah binti Abdullah affirmed on 27.10.2025 (Enclosure 10). The supporting affidavit exhibits, among others –

the Notices of Assessment for YA 2018–2022 and states the total tax due (including increases) amounts to RM4,355,616.24;

the Plaintiff’s position on deemed service to the Defendant’s last known address pursuant to section145(2)(c) Act 53;

the Plaintiff’s reliance on sections 103 and 106 Act 53 for “pay first” and recovery as a civil debt; and

a certificate under section 142(1) Act 53 certifying the Defendant’s tax due as RM4,355,616.24.

The Plaintiff also filed written submissions (Enclosure 12) setting out the statutory framework, including –

service and deemed service under section 145(2)(c) Act 53;

tax due and payable notwithstanding appeal (“pay first”), and recovery as a debt under section106(1) Act 53;

the effect of section 106(3) Act 53 and Sun Man Tobacco Co Ltd v Government of Malaysia [1973] 2 MLJ 163; and

the evidential effect of section 142(1) Act 53 and authorities that the certificate is sufficient authority to enter judgment.

The Court reminded itself that summary judgment is a draconian procedure and must be exercised with care. The jurisdiction is intended only for very clear cases where the defendant plainly has no defence. If the defendant shows a triable issue (whether of fact or law) which ought to go to trial, leave to defend should be granted. Conversely, if what is raised is not a legally sustainable defence, summary judgment may properly be entered.

The main issues in this proceeding are –

whether the Plaintiff has established the statutory basis to recover the sum claimed as a debt due to the Government;

whether the Plaintiff has produced sufficient proof of the amount due (including by section142(1) Act 53 certificate); and

whether the Defendant has shown any bona fide defence or triable issue that is legally open in this civil recovery action, having regard to section106(3) Act 53. Issue (a) whether the Plaintiff has established the statutory basis to recover the sum claimed as a debt due to the Government

The Plaintiff’s claim is founded on the statutory framework of the Act

The Plaintiff’s application itself states and the supporting affidavit affirms, that tax assessed becomes due and payable upon service, and that recovery may be pursued via civil proceedings.

The Plaintiff’s submissions further explain that the statutory approach is “pay first”, with disputes on correctness to be ventilated via the Special Commissioners, not as a defence to the Government’s recovery proceedings.

The Plaintiff contends that the relevant notices were properly sent to the Defendant’s last known address and are deemed served pursuant to section145(2)(c) Act 53.

The Plaintiff’s submissions also rely on the deemed service provision and the presumption recognised in Shek Kwok Bun, Alexander John v Government of Malaysia [2001] MLJU 645.

Accordingly, on the record, there was no properly filed evidential basis before the Court to displace that statutory presumption of service. Issue (b) whether the Plaintiff has produced sufficient proof of the amount due

The Plaintiff relies on a certificate under section142(1) Act 53 certifying that RM4,355,616.24 is due and payable by the Defendant. The Plaintiff’s Notice of Application expressly invokes the section142(1) mechanism as sufficient evidence for judgment and the Plaintiff’s written submissions cite the statutory provision and authorities supporting the proposition that the certificate is sufficient authority to enter judgment for the certified sum (See : Government of the Federation of Malaysia v Lee Tain Tshung [1992] 1 MLJ 629; Government of Malaysia v Dato' Mahindar Singh [1996] 5

In addition, the Plaintiff’s submissions set out the breakdown leading to the figure RM4,355,616.24.

The Defendant’s principal complaints (as indicated through counsel’s oral legal arguments) essentially challenged the correctness / factual basis / reasonableness of the assessments and the computation.

However, section106(3) Act 53, as rightly explained in the Plaintiff’s written and oral submissions and the binding authority of Sun Man Tobacco, bars the civil court in such recovery proceedings from entertaining pleas that the tax sought to be recovered is excessive, incorrectly assessed, or otherwise wrongly imposed. Those matters fall within the statutory appeal mechanism (See also Arumugam Pillai v Government of Malaysia [1980] 2 MLJ 283).

In other words, in a civil recovery action brought under the statutory scheme, the Court’s function is not to reopen the merits of the assessments. The Defendant’s remedy to dispute correctness lies in the proper statutory forum and process.

The Defendant further orally submitted that since it is the Plaintiff who has elected to commence civil proceedings, this Court should enquire into how the sum claimed was calculated. This Court does not accept that proposition. These proceedings are brought under section106 Act 53 to recover tax as a civil debt, and by virtue of section106(3) the Court shall not entertain any plea that the amount sought to be recovered is excessive or incorrectly assessed. The Defendant’s “calculation” challenge, in substance, is a challenge to the correctness or reasonableness of the assessments and therefore falls within the statutory appeal mechanism, not as a defence in these recovery proceedings. Further, the Plaintiff relies on a section142(1) Act 53 certificate, which is pleaded as sufficient evidence for the Court to enter judgment for the certified sum.

The Defendant’s point of law, as articulated orally by counsel, was that a blanket application of section106(3) Act 53 would conflict with Article 121 and the Court’s judicial power.

The Court did not accept that this point, as raised, constituted a bona fide defence capable of defeating the Plaintiff’s O.14 application. First, the Act 53 provisions relied upon by the Plaintiff remain in force and have been judicially applied in the context of the tax recovery scheme, as reflected by the Plaintiff’s reliance on Sun Man Tobacco and the line of authorities on the operation of the “pay first” mechanism and section106(3) Act 53 (see also Arumugam Pillai).

Secondly, the Defendant’s argument was advanced in the setting of an O.14 application without any proper procedural footing to mount a constitutional challenge, and in circumstances where the Defendant had (a) failed to comply with case management directions and (b) sought to introduce material only on the morning of hearing, which the Court rejected.

Accordingly, the Court held that the Defendant had not shown any legally sustainable defence that is open to the Defendant in these recovery proceedings, nor any triable issue that ought to go to trial.

For the reasons above, the Court was satisfied that this is a proper case for summary judgment. The Plaintiff had produced sufficient statutory proof of the debt, including the section142(1) Act 53 certificate for RM4,355,616.24.

The Defendant did not raise any bona fide defence legally available to him in this civil recovery action, having regard to the operation of section106(3) Act 53 and the statutory appeal mechanism for disputing assessments.

The Plaintiff’s application in Enclosure 9 was therefore allowed, and judgment was entered for –

RM4,355,616.24;

interest at 5% per annum from the date of judgment until realisation; and

costs of RM8,000.00 subject to the allocator. Dated : 22 December 2025 -signed-Dr. Noradura Binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Plaintiff : : Shahnaz Aina binti Mohd Nor Shah Lembaga Hasil Dalam Negeri (LHDN) Solicitor for the Defendant : Dinesh Muthal : Messrs. Dinesh Muthal & Co.