Kerajaan Malaysia v SH MOMENTOUS SDN. BHD. (BA-21NCvC-46-08/2025)

Enclosure 8 is the Plaintiff’s application for summary judgment against the Defendant regarding the increased income tax assessment for the 2018 and 2019 financial years, amounting to RM11,378,087.90 under the Income Tax Act 1967 (Act 53) (“Act 53”). 22/04/2026 09:49:35 BA-21NCvC-46-08/2025 Kand. 23 S/N Vb3s1Xkh0E62pzoMjo5J/g 2 2. The Plaintiff is also seeking costs and 5% interest per annum on the judgment sum, to be calculated from the date of the judgment until full realisation.

Is there a clear-cut case for summary judgment to be entered against the Defendant? BACKGROUND FACTS Income Tax Returns

Under Act 53, the Plaintiff is obliged to submit its income tax returns annually.

Since the Plaintiff failed to submit its income tax returns for the 2018 and 2019 financial years, the Plaintiff exercised its right to issue notices of assessment for those years pursuant to Section 90(3) of Act 53. S/N Vb3s1Xkh0E62pzoMjo5J/g 3 6. On 28 October 2024, the Plaintiff issued a notice of assessment to the Defendant for the 2018 financial year, amounting to RM3,703,745.55 (“2018 Notice of Assessment”). S/N Vb3s1Xkh0E62pzoMjo5J/g 4 7. On 28 October 2024, the Plaintiff issued another notice of assessment to the Defendant for the 2019 financial year, amounting to RM6,639,970.73 (“2019 Notice of Assessment”). S/N Vb3s1Xkh0E62pzoMjo5J/g 5 8. Upon service of the 2018 Notice of Assessment and 2019 Notice of Assessment, the Defendant had 30 days to pay the Plaintiff, but they failed to do so.

Following the non-payment of the above notices of assessment, the original amounts of tax due and payable under the 2018 Notice of Assessment and 2019 Notice of Assessment would be increased by 10% as provided by Section 103(5) of Act 53.

After the 10% increase, the total tax due and payable for the 2018 financial year increased to RM4,074,120.10, as detailed below. Increased Assessment For The 2018 Financial Year 2018 Assessment : RM3,703,745.55 Minus Payment : Add 10% : RM 370,374.55 Increased Assessment : ============= RM4,074,120.10 ============= Minus Payment : 2018 Increased Assessment : ============= RM4,074,120.10 ============= S/N Vb3s1Xkh0E62pzoMjo5J/g 6 11. After the 10% increase, the total tax due and payable for the 2019 financial year increased to RM7,303,967.80, as detailed below. Increased Assessment For The 2019 Financial Year 2019 Assessment : RM6,639,970.73 Minus Payment : Add 10% : RM 663,997.07 Increased Assessment : ============= RM7,303,967.80 ============= Minus Payment : 2019 Increased Assessment : ============= RM7,303,967.80 =============

Based on the 2018 Increased Assessment and the 2019 Increased Assessment, the total tax due and payable by the Defendant to the Plaintiff is RM11,378,087.90.

On 26 August 2025, Puan Hayati Bin Zahari, the Ketua Penolong Pengarah of Lembaga Hasil Dalam Negeri, issued a certificate under Section 142(1) of Act 53 (“Certificate”). S/N Vb3s1Xkh0E62pzoMjo5J/g 7 14. Under the Certificate, the total tax due and payable by the Defendant to the Plaintiff for the 2018 and 2019 financial years is RM11,378,087.90. S/N Vb3s1Xkh0E62pzoMjo5J/g 8 15. On 26 August 2025, the Plaintiff exercised its right under Section 106(1) of Act 53 and filed this civil suit to recover RM11,378,087.90, being the total tax due and payable by the Defendant for the 2018 and 2019 financial years.

The Learned Counsel for the Defendant contended that since the Defendant challenged the service and validity of the 2018 Notice of Assessment and 2019 Notice of Assessment, Enclosure 8 should be dismissed, and this civil suit should be set down for full trial.

I am unable to accede to the contentions of the Learned Counsel for the Defendant.

This is a clear-cut case for summary judgment against the Defendant.

I will set out the reasons below. Reason No.1 Notices of Assessment Duly Served On The Defendant

The Defendant’s argument that Enclosure 8 should be dismissed because neither the 2018 Notice of Assessment nor the 2019 Notice of Assessment was served on the Defendant is unfounded and devoid of merit for the following reasons: S/N Vb3s1Xkh0E62pzoMjo5J/g

(a) firstly, the Plaintiff served both the 2018 Notice of Assessment and the 2019 Notice of Assessment on the Defendant by registered post to the Defendant’s last known address, in accordance with Section 145(2) of Act 53 (Kerajaan Malaysia v Central Strata Sdn Bhd [2013] 8 CLJ 632);

(b) secondly, the successful delivery of both the 2018 Notice of Assessment and the 2019 Notice of Assessment to the Defendant was confirmed by a delivery status dated 10 December 2024 issued by Pos Daftar Delivery Office Melaka of Pos Malaysia Berhad; and

(c) thirdly, there is no evidence provided by the Defendant to demonstrate that they had given another address for service to the Plaintiff before the issuance of the 2018 Notice of Assessment and the 2019 Notice of Assessment, or that the 2018 Notice of Assessment and the 2019 Notice of Assessment were sent to the wrong party.

Based on the above, the Plaintiff has duly served the 2018 Notice of Assessment and the 2019 Notice of Assessment on the Defendant (Government of Malaysia v Dato’ Mahindar Singh [1996] 5 MLJ 626). S/N Vb3s1Xkh0E62pzoMjo5J/g Reason No.2 Valid Notices Of Assessment

Under Section 77A(1) of Act 53, every company, trust body or co-operative society is required to submit its income tax returns within seven months from the date following the close of the accounting period.

If the company, trust body, or co-operative society fails to submit its income tax returns, the Plaintiff may invoke Section 90(3) of Act 53 and subsequently issue notices of assessment.

In this case, the Defendant did not submit its income tax returns via Form C to the Plaintiff for the 2018 and 2019 financial years.

As the Defendant failed to submit Form C for the 2018 and 2019 financial years, the Plaintiff was entitled to invoke Section 90(3) of Act 53 and issue the 2018 Notice of Assessment and the 2019 Notice of Assessment to the Defendant.

Based on the above, the Plaintiff validly issued the 2018 Notice of Assessment and 2019 Notice of Assessment to the Defendant. S/N Vb3s1Xkh0E62pzoMjo5J/g Reason No.3 Valid 10% Increase On Assessment

Under Section 103(2) of Act 53, once the notice of assessment is served on the taxpayer, the tax payable becomes due and payable (Chong Woo Yit V Government Of Malaysia [1989] 1 CLJ (Rep) 9; Kerajaan Malaysia v Ong Kar Beau [2003] 6

As alluded to earlier, since the 2018 Notice of Assessment and the 2019 Notice of Assessment had been served on the Defendant, the tax payable under each notice became due and payable.

It is undisputed that the Defendant made no payment under the 2018 Notice of Assessment or the 2019 Notice of Assessment.

Since the Defendant did not make any payment for the 2018 Notice of Assessment, the tax payable under it would be increased by 10%, from RM3,703,745.55 to RM4,074,120.10 (“2018 Increased Assessment’), as provided for under Section 103(5) of Act 53 (Kerajaan Malaysia V Ong Kar Beau [2003 6 MLJ 225).

Similarly, since the Defendant also did not make any payment for the 2019 Notice of Assessment, the tax payable under it would be increased by 10%, from RM6,639,970.73 to S/N Vb3s1Xkh0E62pzoMjo5J/g RM7,303,967.80 (“2019 Increased Assessment”), as provided for under Section 103(5) of Act 53. Reason No.4 Undisputed Assessments And 10% Increase

If the Defendant disputed the 2018 Notice of Assessment, the 2019 Notice of Assessment, the 2018 Increased Assessment or the 2019 Increased Assessment, the Defendant could have exercised its right under Section 99 of Act 53 to file appeals to the Special Commissioner of Income Tax (“SCIT”).

The Defendant, however, chose not to appeal to SCIT against the 2018 Notice of Assessment, the 2019 Notice of Assessment, the 2018 Increased Assessment, or the 2019 Increased Assessment.

This can only mean one thing: that the Defendant agrees with taxes payable under the 2018 Notice of Assessment, the 2019 Notice of Assessment, the 2018 Increased Assessment, or the 2019 Increased Assessment.

It is pertinent to note that under Section 103(2) of Act 53, even if the Defendant filed appeals to SCIT, the Defendant is still duty-bound to make payment under the 2018 Notice of Assessment, the 2019 Notice of Assessment, the 2018 Increased Assessment and the 2019 Increased Assessment S/N Vb3s1Xkh0E62pzoMjo5J/g (TA Wu Realty Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri & Anor [2009] 1 MLJ 555). Reason No.5 No Application To File Appeal Out Of Time

Not only did the Defendant fail to file any appeal to the SCIT, but the Defendant also did not make any application under Section 100 of Act 53 to extend the time for filing the appeals.

Once again, this demonstrates that the Defendant did not dispute the 2018 Notice of Assessment, the 2019 Notice of Assessment, the 2018 Increased Assessment, and the 2019 Increased Assessment. Reason No.6 Final And Conclusive

The 2018 Notice of Assessment, the 2019 Notice of Assessment, the 2018 Increased Assessment, or the 2019 Increased Assessment have become final and conclusive after Puan Hayati Bin Zahari, the Ketua Penolong Pengarah Lembaga Hasil Dalam Negeri, issued the Certificate under Section 142(1) of Act 53.

Under Section 142(1) of Act 53, the issuance of the Certificate alone is sufficient authority for the Court to enter judgment against the Defendant for the sum of RM11,378,087.90. S/N Vb3s1Xkh0E62pzoMjo5J/g Reason No.7 Cannot Approbate And Reprobate

Having maintained that all the 2018 Notice of Assessment, the 2019 Notice of Assessment, the 2018 Increased Assessment, and the 2019 Increased Assessment were properly issued by the Plaintiff, the Defendant cannot now alter their position to challenge these assessments after the Plaintiff initiated this civil suit.

The Defendant cannot approbate and reprobate (Cheah Theam Kheng v City Centre Sdn Bhd & Other Appeals [2012] 2 MLRA 125; [2011] 2 MLRA 660; [2012] 1 MLJ 761; [2012] 2 CLJ 16; MK Cooling Services & Anor v Chong Kek Fong [2025] MLRHU 1959; [2025] MLJU 2818; [2025] CLJU 2254). Reason No.8 Not To Entertain The Defendant’s Plea

In this case:

(a) the 2018 Notice of Assessment and the 2019 Notice of Assessment are made pursuant to Section 103(2) of Act 53; and S/N Vb3s1Xkh0E62pzoMjo5J/g

(b) the 2018 Increased Assessment and the 2019 Increased Assessment are made pursuant to Section 103(5) of Act 53.

In accordance with Section 106(3) of Act 53, the Court shall not entertain any plea from the Defendant that the 2018 Notice of Assessment, the 2019 Notice of Assessment, the 2018 Increased Assessment or the 2019 Increased Assessment is excessive, incorrectly assessed or incorrectly increased, especially when the Defendant has already waived its right to appeal to SCIT (Kerajaan Malaysia v Ong Kar Beau [2003 6 MLJ 225; Government v Dato’ Mahindar Singh [1996] 5 MLJ 626; Government v Central Strata Sdn Bhd [2013] 8 CLJ 632; Government v Ong Kar Beau [2003] 6 MLJ 225; TA Wu Realty Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri & Anor [2009] 1 MLJ 555; Government v Lee Tain Tshung [1992] 1 MLJ 629; Government v Abdul Rahim bin Mohd Aki [1994] 4 BLJ 376; Arumugam Pillai v Government of Malaysia [1975] 2 MLJ 29; Teng Chua Huat v Government of Malaysia [1999] 7 CLJ 358; Comptroller of Income Tax v A. Co. Ltd [1966] 2 MLJ 282).

In Sun Man Tobacco Co. Ltd. v Government of Malaysia [1973] 2 MLJ 163, the Federal Court held that: “There is a string of decided cases ... in which it has been held that the effect of the relevant provisions of the Income Tax 1967 is that on the service of a notice of S/N Vb3s1Xkh0E62pzoMjo5J/g assessment on the person assessed, the tax payable under the assessment becomes due and payable at the place specified in the notice, whether or not the person appeals against the assessment, and can then be recovered by the Government by civil proceedings as a debt due to the Government. On such civil proceedings being brought by the Government, the court has no power to entertain any plea that the amount of tax sought to be recovered is excessive, incorrectly assessed, under appeal or incorrectly increased.” [Emphasis added]

The Court should not be used to re-open assessments (Chong Woo Yit v Malaysia [1989] 1 CLJ 9; Malaysia v Najib [2020] 12 MLJ 580). Reason No.9 No Triable Issue

For a summary judgment application concerning recovery of unpaid tax payable under Act 53, the law on a triable issue does not apply (Chong Woo Yit v Government of Malaysia [1989] 1 CLJ (REP) 9, FC; Teng Chua Huat v Government of Malaysia [1999] 7 CLJ 358, HC). S/N Vb3s1Xkh0E62pzoMjo5J/g 17 47. In any event, there is no triable issue in this case.

The Defendant’s case, as reflected in its Defence and the affidavit in reply of Tan Yoong Wei, in substance, is a denial of the calculations and assertions that the assessments and increased assessments are incorrect or unclear.

Those contentions are, in substance, objections to the assessments and calculations.

The proper forum to challenge the accuracy of the 2018 Notice of Assessment, the 2019 Notice of Assessment, the 2018 Increased Assessment, or the 2019 Increased Assessment is solely through an appeal to SCIT under Section 99 of Act 53, which the Defendant has elected not to pursue.

In Kerajaan Malaysia v Mudek Sdn Bhd [2017] 6 MLRA 25, the Federal Court held that: “[14] In the upshot:

(i) If a notice of assessment is raised, and if a tax payer wishes to raise issues pertaining to the amount, the correctness or the legality of the assessment raised, the tax payer should invoke s 18 of the said Act. If this is resolved in the tax payer’s favour then whatever tax paid can be S/N Vb3s1Xkh0E62pzoMjo5J/g refunded as an over payment pursuant to s 24 of the said Act.

For the foregoing reasons, I allow Enclosure 8 with costs of RM5,000.00. Dated this 13th day of April 2026 SGD HELMI BIN HAMZAH JUDICIAL COMMISSIONER HIGH COURT IN MALAYA AT SHAH ALAM NEGERI SELANGOR S/N Vb3s1Xkh0E62pzoMjo5J/g Counsel for the Plaintiff : Ms. Noor Amy Afifi Binti Mohd Yusof Lembaga Hasil Dalam Negeri Counsel for the Defendant : Mr Muhammad Hassanuddin Bin Roslan (Messrs Tiong & Associates) S/N Vb3s1Xkh0E62pzoMjo5J/g