Kami mengucapkan terima kasih di atas kerjasama yang telah diberikan. Sekian, terima kasih. Saya yang menjalankan amanah, [SALAMATUNNAJAN BINTI BESAH] Pengarah Jabatan Dasar Percukaian b.p. Ketua Pegawai Eksekutif/Ketua Pengarah Hasil Dalam Negeri Lembaga Hasil Dalam Negeri Malaysia 28 | P a g e The Appeal – Our Decision [30] At the outset of the appeal, the Learned Revenue Counsel informed us that he was confining his appeal on the sole ground that the High Court had erred in granting leave as the High Court lacked the requisite “jurisdiction” to hear and allow the leave that was sought as the application for Judicial Review was filed “out of time” i.e. more than three (3) months from the date of the impugned decision. The Learned Revenue Counsel’s first line of argument was that, time for purposes of Order 53 r.3(6) Rules of Court 2012, is to be computed from 29 August 2019 being the date of LHDN’s letter to NKF informing that the tax-exempt status had been revoked. Next, it was also argued that at any rate, time is to be computed from 3 September 2019, which is the date of NKF’s letter by which they (NKF) acknowledged that their tax-exempt status had been revoked. Finally, it was argued that even if time were to run from 17 June 2020, the Judicial Review application was out of time. [31] At first blush, LHDN’s proposition that time should be computed from the date of their letter dated 29 August 2019 or NKF’s letter dated 3 September 2019 (which acknowledged LHDN’s decision via letter dated 29 August 2019) appears attractive. Hence, if we accepted LHDN’s argument, then clearly the Judicial Review which was filed on 17 September 2020 is out of time i.e. well beyond 3 months and leave ought to have been dismissed as time goes to "jurisdiction". 29 | P a g e [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. [34] In this regard, we agree with and endorse the principle which was enunciated by the Singapore Court of Appeal in the case of Per Ah Seng Robin v Housing Development Board & Anor. [2016] 1 SLR 1020 at paragraphs [51] and [52]. These paragraphs from the Singapore Court of Appeal’s judgment are instructive and read relevantly as follows: [51] For the purposes of calculating the three-month period stipulated in O 53 r 1(6), time generally starts to run from the date of the decision sought to be impugned (see Teng Fuh Holdings at [16]-[17]), or, where the decision is borne out of a multiple-step decision process, from the date of the final step in that process (see Chiu Teng at [36]). 30 | P a g e But, this is not an inflexible or unyielding rule. Time may start to run later where the respondent’s conduct indicates a willingness to reconsider its earlier decision, and in cases where there is delay, it is always open to the applicant to attempt to persuade the court that it has a satisfactory explanation for the delay. (However, as we mentioned earlier at [46] above, it may be that the delay exception does not apply where the applicable time limit is prescribed by written law, as opposed to the three-month period stipulated in O 53 r 1(6).) [52] In UDL Marine, a decision which the appellants rely on, the court permitted time to start running later on the ground that the respondent’s conduct indicated a willingness to reconsider its earlier decision. The respondent in that case, Jurong Town Corporation (“JTC”), leased land to UDL Marine (Singapore) Pte Ltd (“UDL”). UDL applied to renew the lease, but was turned down. JTC, which informed UDL of this by way of a letter dated 20 November 2009, said that its decision was “final”. Later, JTC wrote to UDL informing it that the Economic Development Board and itself (JTC) would jointly review UDL’s business plans and give their joint assessment in due course. On 19 May 2010, JTC wrote to UDL informing it that the joint assessment had been concluded and did not support the renewal of the lease. UDL then applied to the High Court for leave to seek (inter alia) a quashing order in respect of JTC’s decision. In deciding whether the three-month period stipulated in O 53 r 1(6) had been breached, Lai J held that time started to run from JTC’s later rejection letter of 19 May 2010 instead of from the first rejection letter of 20 November 2009 - this was because even though JTC indicated in its first rejection letter that its decision was “final”, its later conduct was a clear indication that it was open to reconsidering its decision. [Emphasis added] [35] As we observed at the outset, what happened here can fairly be described as a reconsideration or review, by LHDN and a subsequent reiteration or reconfirmation of its earlier decision to revoke NKF’s tax-exempt status. The review or reconsideration was undertaken upon the request of NKF who had sent various letters on their own, and through their tax advisers (Deloitte) to LHDN seeking for a “re-valuation” of the violation points and for the tax-exempt status to be reinstated, and a separate letter dated 23 December 2019 to the MOF. 31 | P a g e [36] It is necessary to mention here that in their letter to the MOF, NKF specifically stated, “…we humbly request the Ministry of Finance ("MOF") to reconsider our case taking into account the following...” The MOF then acted very properly and issued a letter dated 6 January 2020 to the CEO of LHDN and asked the latter to look into the matter (untuk perhatian dan tindakan). [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 (supra), we concluded that the Judicial Review which was filed on 17 September 2020 was filed within three months as per Order 53 r.3(6) Rules of Court 2012. [38] But Learned Revenue Counsel nevertheless argued that even if the LHDN letter dated 17 June 2020 is regarded as the impugned decision, the Judicial Review was filed out of time. [39] We found no merit in the argument that the Judicial Review was filed out of time. As far as this part of the appeal is concerned, we take the view that the relevant provisions are Order 3 r.2 Rules of Court 2012, Order 53 r.3(6) Rules of Court 2012 and s.145 of the Income Tax Act 1967. 32 | P a g e [40] Order 3 r.2 reads as follows: