Schedule
Schedule 1 together with all assets, equipment and fixtures associated with and/or are required for the proper functioning and operations of the said telecommunications towers including but not limited to power supply modules, cabins, full tank, security fencing, generator sets, cabling and dark fibre, all of which are strictly chattels, moveable assets and equipment (and all of which are transferred via delivery by hand), constructed, operated and leased to customers". [5] As of 1 August 2023, legal ownership of the assets had not been transferred to GTP. [6] On 30 August 2023, GTP through its solicitors, Messrs. Zul Rafique & Partners, submitted the application for stamp duty for the APA under s. 26 of the Stamp Act via STAMPS's online portal. [7] On 5 September 2023, the PDS office informed Messrs. Zul Rafique & Partners via a telephone call that the information in the adjudication was wrong and that GTP should state that the application is for a novation agreement. [8] In addition, the PDS, through the STAMPS portal, also informed GTP that the assessment is to be made under s. of the Stamp Act, and the stamp duty is subject to item 32(a) of the First Schedule of the Stamp Act as the PDS did not categorize the assets as inventory. [9] Based on the above information, Messrs. Zul Rafique & Partners resubmitted the adjudication application on behalf of GTP to facilitate the adjudication. [10] On 11 September 2023, the PDS issued a notis taksiran sekuriti (duti ad valorem) and imposed a stamp duty of RM584,020.00 on the APA. [11] This led to Messrs. Zul Rafique & Partners submitting a notice of objection under s. 38A(1) of the Stamp Act via the STAMPS portal based on the following reasons, among others: (i) the APA is for purchasing telecommunication towers and basic telecommunication infrastructures, which are chattels. The agreement should therefore come under item 4 of the First Schedule of the Stamp Act, and the nominal stamp duty to be imposed is RM10.00; (ii) in the case of BASF Services (M) Sdn Bhd v. Pemungut Duti Setem [2010] 5 CLJ 109 (FC), the Federal Court held that the transfer of a chattel by way of physical delivery, unless disallowed by some law, is itself not chargeable to any duty; and (iii) MEBA only sold certain assets to the appellant, not the whole business. [12] The basis of the assessment in the Case Stated can be summarized as follows: i. The assessment is based on the consideration for the sale of property of RM15,000,000.00 as stated in the APA. Hence, ad valorem duty under Item 32(a) is the correct charge. Once Section 21(1) of Stamp Act 1949 applies, Item 32(a) of the First Schedule, Stamp Act 1949, governs exclusively; Item 4 (nominal duty for simple agreements) cannot apply. ii. Section 21(1) Stamp Act 1949 expressly provides that any contract or agreement made in Malaysia for the sale of any estate or interest in property (except certain exclusions like goods, wares, merchandise, stock, or securities) shall be charged with the same ad valorem duty as if it were an actual conveyance on sale. The APA here, is an agreement for the sale of property interests (telecommunication towers and associated rights), which falls squarely within this provision). iii. Clause 2.1 (a) and (b) APA as well as 2.2 (a) and (b) APA had clearly shown that the APA transfers beneficial and legal ownership of the Sale Assets to the Respondent and vests economic rights from the date of the agreement. This satisfies the statutory definition of “conveyance on sale”, which includes any instrument whereby property or any interest therein is transferred to the Respondent. iv. The Sale Assets are movable property (telecommunication towers, equipment, and related rights), which are expressly included in the definition of “property” under Section 2 of the Stamp Act 1949. They are not “goods, wares or merchandise” because they are capital assets, not trading stock. v. Item 32(a) of the First Schedule applies to any conveyance, assignment, transfer or absolute bill of sale on sale of any property, except for stock, shares, and certain receivables. FINDINGS OF THE HIGH COURT [13] In her analysis, the learned JC took the view that the question to be determined is whether the APA entered into between GTP and MEBA should be chargeable with nominal stamp duty under item 4 of the First Schedule or exempted from stamp duty according to exemption (a) under item 4. [14] The PDS contended that the APA should be charged with ad valorem stamp duty under item 32(a) of the First Schedule to the Stamp Act as the conveyance. [15] On the other hand, GTP averred that the documents are merely an agreement to convey. The APA, like the SPA, is an agreement to convey, not the conveyance. [16] By issuing the “notis taksiran” for the stamp duty, the PDS had treated the asset purchase agreement as a novation agreement. Subsequently, in issuing the “notis taksiran sekuriti” to confirm the decision after the appeal dated 13 February 2024, the PDS continued to treat the agreement as a novation agreement which is subject to ad valorem duty. [17] In arriving at her decision, the learned JC made the following findings: (i) that the APA is merely an agreement to convey and not a conveyance. The agreement contemplates future acts and further documentation before legal ownership can pass, and completion is conditional upon satisfaction of several requirements. Therefore, it does not affect an immediate transfer of assets; (ii) that the PDS had wrongly treated the APA as a novation agreement, despite the absence of any substantive novation in the document. No reasons were given by the PDS for this classification, and the substance of the agreement did not support such treatment; (iii) that the APA is merely an agreement to convey and not a conveyance. The agreement contemplates future acts and further documentation before legal ownership can pass, and completion is conditional upon satisfaction of several requirements. Therefore, it does not affect an immediate transfer of assets (see paragraphs 32, 35, 52 of the HC’s judgment). (iv) In determining stamp duty liability, the entire document must be construed as a whole, and that the intention of the parties must be gathered from the instruments themselves. Upon examining the substance of the agreement, the Court concluded that it did not operate as a conveyance (see paragraphs 37- 38 of the HC judgment). (v) that although beneficial ownership may pass at the date of the agreement to a limited extent, legal ownership, rights, and interests only pass upon completion, subject to the fulfilment of conditions and delivery of further documents such as license agreements and novation agreements (see paragraphs 40-44 of the HC judgment); and (vi) that further acts were necessary for the purchaser to obtain effective ownership and use of the assets, including execution of license agreements, novation agreements, right of way agreements, and regulatory permits. This confirmed that the agreement itself did not transfer the assets (see paragraphs 42, 44, 49, 51 of the HC judgment). [18] The learned JC also noted that the PDS had directed GTP’s solicitors to resubmit the agreement as a novation agreement, failing which the document would not be stamped. The JC also found that it was the respondent’s duty to adjudicate and take a position on the document as submitted, rather than requiring resubmission under a different category (see paragraphs 33-35 of the HC judgment). [19] Relying on established authorities, the High Court reaffirmed that ad valorem duty is only chargeable where the instrument effects an immediate and complete transfer, with nothing further to be done. Since completion was deferred to a future date, ad valorem duty could not apply (see paragraphs 47, 50 of the HC judgment). [20] The Court accepted GTP’s submission that the PDS failure to file an affidavit in reply meant that GTP’s factual assertions were deemed admitted, in accordance with settled principles of affidavit evidence. [21] Premised on her findings, the learned JC thereafter made the following orders: i. GTP’s appeal under s 39 Stamp Act 1949 is allowed with costs of RM6,000-00 subject to allocatur; ii. granted a declaration that the Asset Purchase Agreement dated 1 August 2023 (“APA”) chargeable with nominal duty RM10 under Item 4 First Schedule, Stamp Act; and iii. ordered a refund of RM584,020 with 5% interest and ancillary orders. [22] Dissatisfied with the decision and orders of the High Court, the PDS appealed to the Court of Appeal. Summary of PDS’s grounds of appeal [23] The PDS mounted their appeal based on the following points: a. The learned JC erred by focusing on future deliverables and completion conditions rather than the substance and effect of the APA. The APA vested beneficial ownership and economic rights in the purchaser from the date of execution, making it an operative instrument implementing the bargain for sale. The Court’s reliance on English authorities (G. Angus & Co and Queensland Meat Export Co) was misplaced and contrary to current Malaysian jurisprudence, which emphasizes that stamp duty taxes instruments according to their nature and effect, not timing or administrative labels. b. The learned JC erred by treating the Appellant’s failure to file an Affidavit in Reply as a deemed admission affecting the legal classification of the instrument. In a case stated appeal under Section 39, the High Court’s jurisdiction is confined to answering questions of law on stated facts; affidavit practice is irrelevant. c. the Court failed to appreciate that the exemption under Item 4, First Schedule, Stamp Act 1949 does not apply to capital assets i.e. telecommunication towers, which are not “goods, wares or merchandise.” This error led to an incorrect declaration that the APA is chargeable with nominal duty instead of ad valorem duty. d. The learned JC’s judgment to impute the burden of proving the assessment and duty of giving reasons on the Appellant had no basis under the law. In doing so, the JC had ventured into issues outside the purview of the question put forth in the Case Stated that only requires the High Court to determine whether the instrument in question ought to be assessed for nominal duty under Item 4 First Schedule or ad valorem duty under Item 32(a) First Schedule of the Stamp Act 1949. e. The learned JC erred in law in awarding interest on the refund of duty, given that section 39 confines the court’s remedial powers to assessing duty, ordering repayment of excess duty with or without costs (subject to section 39(4A) Stamp Act 1949), and contains no express authority to grant interest. Summary of GTP’s submission [24] GTP’s response to the PDS’s appeal is summarized below: i. the Respondent had in their affidavit in response to the Appellant’s application by way of case stated, asserted that the Appellant had wrongly treated the Agreement as a novation agreement. The Appellant did not file an affidavit in reply to refute that Respondent’s assertion. Hence, they are deemed to have admitted that they were wrong in treating the Agreement as a novation. ii. The Agreement was not ‘an instrument of conveyance’ but ‘an agreement to convey’ (reliance placed on the UK Court’s decision in Angus and Stanway Limited which were applied and followed by our Federal Court in BASF Services (M) Sdn Bhd v Pemungut Duti Setem (supra)). iii. The assets under the Agreement which includes telco towers are goods/chattels. Under Section 21 of the Stamp Act 1949, they are excluded from the imposition of ad valorem duty. iv. The Appellants reliance on the Federal Court decision in Havi Logistics (M) Sdn Bhd v Stamp Duty Collector [2025] 2 MLJ 845 is wrong as the facts in Havi Logistics (supra) are different from that in the present appeal. v. The Agreement is not subject to ad valorem duty, as the legal ownership of the assets, risk and title did not pass to the Respondent via the Agreement itself. They are many other actions that are required to be performed before the ownership, risk and title passes to the Respondent. APPLICABLE LEGAL PROVISIONS APPLICABLE [25] We reproduce below ss 4(1), 21(1) SA, Items 4 and 32 of the 1st schedule: Instruments chargeable with duty S4(1) Subject to [SA] and subject to the exemptions contained in [SA] and in any written law for the time being in force, several instruments specified in the First Schedule shall, from and after the commencement of [SA], be chargeable with the several duties specified in such Schedule. … Certain contracts to be chargeable as conveyances on sale S21(1) Any contract or agreement made in Malaysia under seal or under hand only, for the sale of any equitable estate or interest in any property whatsoever, or for the sale of any estate or interest in any property except lands, tenements, hereditaments, or heritages, or property locally situate out of Malaysia, or goods, wares or merchandise, or stock, or marketable securities, or any ship or vessel, or part interest, share or property of or in any ship, shall be charged with the same ad valorem duty, to be paid by the purchaser, as if it were an actual conveyance on sale of the estate, interest or property contracted or agreed to be sold. [1st Schedule] 4. AGREEMENT OF MEMORANDUM OF AGREEMENT made under hand only, and not otherwise specially charged with any duty, whether the same is only evidence of a contract or obligatory on the parties from its being a written instrument Exemptions Agreement or Memorandum: (a) For or relating to the sale of any goods, wares or merchandise other than a hire-purchase agreement; (b) For service or personal employment where the wages do not exceed RM300 per month, and any agreement between the master and mariners of any vessel or boat for wages; (c) The matter whereof is of a value of less than RM300; (d) For the reference of any matter to arbitration; (e) For the payment of interest on money deposited in any bank or with any banker; and (f) For the repurchase of negotiable certificate of deposit whose issue has been authorized by Bank Negara Malaysia. Note-An agreement for or relating to the supply of good on hire, whereby the goods in consideration of periodical payments will or may become the property of the person to whom they are supplied, shall be charged with stamp duty as an agreement, or, if under seal, as a deed. ITEM 32. CONVEYANCE, ASSIGNMENT, TRANSFER OR ABSOLUTE BILL OF SALE: (a) On sale of any property [except stock, shares, marketable securities and accounts receivables or book debts of the kind mentioned in paragraph (c)]. For every RM 100 or fractional part of RM 100 of the amount of the money value of the consideration or the market value of the property, whichever is the greater- (i) RM 1.00 on the first RM100,000; (ii) RM 2.00 on any amount in excess of RM 100,00 but not exceeding RM500,000; (iii) RM3.00 on any amount in excess of RM 500,000 but not exceeding RM1,000,000; (iv) RM4.00 on any amount in excess of RM1,000,000. (b) On sale of any stock, shares or marketable securities, to be computed on the price or value thereof on the date of transfer, whichever is the greater-For every RM1000 or fractional part of RM1000. RM3.00 (c) On the absolute sale of any accounts receivables or book debts to a bank, merch bank, or finance company licensed under the Banking and Financial Institutions 1989 or under the Islamic Banking Act 1983 or a scheduled institution as defined under section 2 of the Banking and Financial Institutions Act 1989, pursuant to a factoring agreement. (d) Of any property by way of security or any security other than a marketable security. See Charge (e) Of any property as above where the transaction is between trustees and where- (i) The beneficial interest in the property passes. (ii) The beneficial interest in the property does not pass. Duty as in (a), (b) or (c) (f) Of any property, for the purpose of effectuating the appointment of a new trustee or the retirement of a trustee although no new trustee is appointed. (g) Of any property by way of settlement. See Settlement (h) Of any property by way of gift (whether by way of voluntary disposition or otherwise). See Gift and Section 16(1) (i) Of any kind not otherwise specially charged with duty. APPLICABLE LEGAL PRINCIPLES [26] In BASF Services (M) Sdn Bhd v Pemungut Duti Setem (supra), the Federal Court reiterated the principle that stamp duty is chargeable on an instrument and not on the transaction. This is in line with the provisions under the Act, which provides that stamp duty is imposed on an instrument and not on a transaction. It therefore follows, that one must look at the instrument in determining whether nominal stamp duty or ad valorem duty is applicable (see also Pernas Securities Sdn Bhd v The Collector of Stamp Duties [1976] 2 MLJ 188). [27] The Federal Court also stated that the Court of Appeal quite correctly summarised the applicable principles in assessing the duty payable on an instrument in the following manner: (i) the first step in assessing the duty payable in respect of an agreement for the sale of the property is to determine whether the sale relates to an equitable estate or equitable interest in the property. If it is, then the duty payable would be at the ad valorem rate specified under item 32 of the First Schedule; (ii) if, on the other hand, the agreement relates to a sale of a legal estate or legal interest in the property, then it must be ascertained if any of the exceptions in s 21(1) apply. If they do not, then duty would be payable ad valorem pursuant to item 32 of the First Schedule; (iii) If, however the sale relates to legal estate or legal interest in the property, and the property in question comes within one of the exceptions in s 21(1), the next question to be asked is whether the agreement or contract in question is a conveyance on sale. Does property in assets pass to the purchaser by virtue of the agreement or contract in question? If so, then duty would be payable ad valorem pursuant to item 32 of the First Schedule; and (iv) if, on the other hand, one of the exceptions applies and the agreement is on its proper construction not a conveyance on sale, then the agreement or contract ought to be stamped as an ‘agreement’ pursuant to item 4 of the First Schedule of the Stamp Act 1949. ISSUES IN THIS APPEAL [28] Based on the submission of parties, we surmise that the issues for our deliberation are as follows: (i) Whether the APA was a ‘conveyance on sale’ within the meaning of s 2 of the Act thus being chargeable with ad valorem duty? (ii) Whether the learned JC erred by treating the Appellant’s failure to file an Affidavit in Reply as a deemed admission affecting the legal classification of the instrument? (iii) Whether the learned JC erred in imputing the burden of proving the assessment and duty of giving reasons on the Appellant? (iv) Whether the learned JC erred in law in awarding interest on the refund of duty? [29] Due to elementary nature and for purposes of brevity, we propose to deal with issues (ii), (iii) and (iv) first. Whether the learned JC erred by treating the Appellant’s failure to file an Affidavit in Reply as a deemed admission affecting the legal classification of the instrument? [30] With reference to this issue, the appeal to the High Court was made pursuant to the provisions of S. 39 of the Act which states as follows: “s 39. 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 his opinion was required, and the decision made by him.” (emphasis added) [31] Apart from the above provision, Section 39 is silent on whether the party responding to the notice of appeal has a duty to file an affidavit responding to the said appeal and whether the appellant has a duty to reply to the affidavit by the respondent. [32] To our minds, an appeal by way of a case stated is limited to the facts stated therein and requires no affidavits to be filed by parties. Hence, it was wrong for the learned JC to treat the Appellant’s failure to file an Affidavit in Reply as a deemed admission affecting the legal classification of the APA. Whether the learned JC erred in imputing the burden of proving the assessment and duty of giving reasons on the Appellant had basis under the law? [33] With reference to this issue, we are of the view that the learned JC was wrong. We conclude so based on the recent decision in Havi Logistics (M) Sdn Bhd v Pemungut Duti Setem (supra) where the Federal Court had to deal with the following question: Whether the Collector of Stamp Duties may raise a stamp duty assessment without specifying which sub-limb of item 32 of the First Schedule of the Stamp Act 1949 that the Collector had invoked? (‘question 4’). [34] In declining to answer the above question posed, the Federal Court in Havi Logistics (M) Sdn Bhd (supra) referred to the Federal Court decision in Pemungut Duti Setem v Lee Koy Eng (as administrator to the estate of Tan Kok Lee @ Tan Chin Chai, deceased) and another appeal [2022] 6 MLJ 45, where it was held that in determining a stamp duty appeal by way of case stated, the High Court is required solely to answer the question of law posed for the opinion of the High Court. Hence, the High Court had no other duty but to answer the question that had been put forth for the opinion of the High Court in the case stated. The issue regarding the non-specification of sub-limb of item 32 was not posed as a question for the determination of the High Court in the case stated. Thus, the appellant would be precluded from raising this issue. [35] Similar to the present appeal, the issue posed for the court’s determination was: “Samada Perjanjian Jual Beli aset bertarkh 01.08.2023 patut ditaksirkan pada kadar nominal di bawah Butiran 4 Jadual Pertama, dikecualikan duti merujuk kepada Pengecualian (a) di bawah Butiran 4 Jadual Petama atau ditaksirkan pada kadar ad valorem di bawah Butiran 32(a) Jadual Pertama Akta Setem 1949?” [36] In light of the fact that the issue of the burden of proving the assessment and duty of giving reason on the PDS was not posed as a question for determination of the High Court in the case stated, there was no necessity for the JC to determine this issue and to impose such burden on the PDS. Whether the learned JC erred in law in awarding interest on the refund of duty? [37] In Pelangi Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2012] 1 MLJ 825, Rohana J. (later PCA), held that the court is vested with discretion to impose interest payment as compensation and it is provided for under s 11 of the Civil Law Act 1956 (reliance based on the Federal Court decision of Lim Eng Kay and Court of Appeal decision in Lee Guan Par v Hotel Universal Sdn Bhd [2005] 4 MLJ 589; [2005] 3 CLJ 1 and Mirra Sdn Bhd v The Ayer Molek Rubber Company Bhd [2008] 2 MLJ 348) on the basis that interest is awarded in the nature of compensation to remedy the aggrieved party whose money has been unlawfully deprived by the other party (the position is similar in other jurisdiction, see: the UK decision in Grincelis v House 173 ALR 564 and New Zealand Jaggar v Lyttelton Marina Holdings Ltd (in Receivership) [2006] 2 NZLR 87. [38] Rohana J. also referred to the landmark ruling in Woolwich Equitable Building Society v Inland Revenue Commissioners (No 2) [1992] 3 All ER 737, where the House of Lords allowed taxpayer interest on the sums repaid by revenue from dates of payment by taxpayer. In the same case the court observed that the position of revenue in such a situation, which is conferred with coercive power of the state, having the benefit of a massive interest free loan as fruit of an unlawful action. The law Lords also relied on the concept of unjust enrichment or unjust benefit, in awarding interest to the tax payer. Lord Slynn observed in the case that the citizen has a right to recover from the revenue money demanded and paid which was not due because the demand was ultra vires. He found it unacceptable to deny a tax payer of interest when the tax payer paid large sums of money to the revenue based on invalid regulations and retained free of interest, pending a court decision. Note: On appeal, the decision in Pelangi (supra) was affirmed by the Court of Appeal (there are no grounds of judgment for the appeal) and the Revenue’s application for leave to appeal to the Federal Court was dismissed. [39] Coming back to the present appeal, it is our considered view that the JC did not err in awarding interest on the refund of duty (see the judgment of Wong JCA in Civil Appeal No. B-01 (NCVC)(A)-388- 06/2024: Tan Nyok Chin v Pemungut Duti Setem). [40] Both s 11 of the Civil Law Act 1956 (CLA) and O 42 r 12 RC as reproduced below states as follows: “s 11 Power of Courts to award interest on debts and damages In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest as such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: Provided that nothing in this section – (a) Shall authorize the giving of interest upon interest; (b) Shall apply in relation to any debts upon which interest is payable as of right whether by virtue of any agreement or otherwise; or (c) Shall affect the damages recoverable for the dishonor of a bill of exchange.” O 42 r 12 RC Interest on judgment debts “Subject to rule 12A, except when it has been otherwise agreed between the parties, every judgment debt shall carry interest at such rate as the Chief Justice may from time to time determine or at such other rate not exceeding the rate aforesaid as the Court determines, such interest to be calculated from the date of judgment until the judgment is satisfied.” [41] Based on our reading of s 11 CLA, it is clear that the court can award interest to the Collector until the date of full payment of the same. In addition, O 42 r 12 RC entitles a litigant to claim interest from the date of the order of the court until full refund of the sum claimed. Such was held by the Court of Appeal in Lee Koy Eng (supra) at [68] to [71]: “[68] Proceeding now to the ground of appeal on the order imposing interest on the excess payment ordered to be refunded to the respondent, the appellant contended that it was an erroneous decision. [69] We hold the LHCJ [learned High Court Judge] had correctly referred to the law applicable to this issue, ie. S 11 [CLA] and O 42 r 12 [RC] which we reproduce below: … [70] It is plain to us that the court that decides to allow any claim for the recovery of a debt which was the case here for the recovery of excess payment to the appellant held to be not in accordance with law, had a wide discretionary power to award interest where appropriate. The rate of 5% pa awarded by the LHCJ was in compliance with O 42 r 12 of the RC as it did not exceed the rate presently determined by the Chief Justice. [71] We do not see any error in principle in the LHCJ’s decision that warrants our interference as follows: As a consequence of the Refund Order, the Excess is a – (1) ‘debt’ due from the Collector to the appellant within the meaning of s 11 CLA; and (2) a ‘judgment debt’ as understood in O 42 r 12 RC.” [42] We now come to the main issue of this appeal: Whether the APA was a ‘conveyance on sale’ within the meaning of s 2 of the Act thus being chargeable with ad valorem duty? [43] As stated earlier, the learned JC had in her judgment concluded that the ‘APA’ was not a conveyance on sale within the meaning of s 21(1) of the Stamp Act which is subject to ad valorem duty under item 32(a) of the First Schedule. This in turn meant that the APA is to be assessed under item 4 the First Schedule of the Act where the duty payable is RM10.00. [44] The PDS disagreed with the above finding of the learned JC and contends that the APA came within the meaning of s 21(1) of the Stamp Act which is subject to ad valorem duty under item 32(a). Hence, the present appeal before us. [45] In ascertaining whether the APA was a conveyance on sale, it is paramount for this Court to determine whether the intention of the parties is to ultimately pass the title to the assets (telco towers) to the appellant via the APA. [46] Under s 2 of the Act, the expression ‘conveyance on sale’ is defined as: ‘conveyance on sale includes every instrument and every decree or order of any Court, whereby any property or any estate or any interest in any property, upon the sale thereof is transferred to or vested in a purchaser or any other person on his behalf or direction.’ [47] Upon our scrutiny of the entire provisions of the APA, the appeal records and the submission of parties (both written and oral), our findings on the terms of the APA are as follows: (i) The APA herein, is an agreement for the sale of property interests (telecommunication towers and associated rights). (ii) Under Clause 2.1 (a) and (b) APA as well as Clause 2.2 (a) and (b) APA, it can be clearly seen that the APA transfers beneficial and legal ownership of the Sale Assets to the Respondent and vests economic rights from the date of the agreement. (iii) that although beneficial ownership of the assets may pass at the date of the agreement to a limited extent, the APA stipulates that further acts were necessary for the purchaser to obtain effective ownership and use of the assets legal ownership, rights, and interests only pass upon completion. This included the execution of license agreements, novation agreements, right of way agreements and regulatory permits. [48] Based on the above terms and conditions, the learned JC agreed with the position taken by the GTP that the APA itself did not transfer the assets but an agreement to convey assets in future. In other words, under the APA, there was no fixed completion date to enable the transfer of the assets to be completed at the time the APA was executed. In this regard, GTP relied on the English decision in The Commissioner of Inland Revenue v G Angus & Co The Same v J Lewis and Sons (1889) 23 QBD 579, where a similar transaction was held to be an agreement and not a conveyance on sale because the transaction was not completed at the time the instrument was executed as the completion date was a future date. The decision in Angus (supra) was approved by our Federal Court in BASF (M) Sdn Bhd v Pemungut Duti Setem (supra). [49] Respectfully, we are unable to agree with the position taken by both the learned JC and GTP. We opine so based on the following reasons: i. The Sale Assets under the APA are movable property (telecommunication towers, equipment, and related rights), which are expressly included in the definition of “property” under Section 2 of the Stamp Act. They are capital assets and not trading stock in the form of “goods, wares or merchandise” as stipulated in Item 4 (a) of the 1st Schedule of the Stamp Act (see the table at paragraph 25 above). This satisfies the statutory definition of “conveyance on sale,” which includes any instrument whereby property or any interest therein is transferred to GTP. ii. Under the APA, both MEBA and GTP intended to ultimately pass the title to the assets (including the telco towers) to GTP. The actual completion date for the transfer of assets is immaterial (this will be discussed further in the following paragraphs of this judgment). iii. Under s. 21(1) Stamp Act: any contract or agreement made in Malaysia for the sale of any estate or interest in property (except certain exclusions like goods, wares, merchandise, stock, or securities) shall be charged with the same ad valorem duty as if it were an actual conveyance on sale. iv. Under Item 32(a) of the First Schedule to the Stamp Act 1949, stamp duty is chargeable on any conveyance, assignment, transfer or absolute bill of sale on sale of any property, except for stock, shares, and certain receivables. The 16 telco towers in this case are part of MEBA’s assets and not part of their stock, shares, and receivables. Ipso facto, they fall aptly under the provisions of Item 32 (a) and not under Item 4 of the First Schedule. [50] In arriving at the above finding, we had embarked on a thorough examination of both the Federal Court decision in BASF (M) Sdn Bhd (supra) and Havi Logistics (M) Sdn Bhd v Pemungut Duti Setem (supra). [51] Having proceeded to do so, in line with the principles of stare decisis, we are bound by the latest Federal Court decision on this issue i.e. Havi Logistics (supra) which was decided in 2025 compared to BASF (supra) which was decided in 2010. [52] For purposes of clarity, it would be appropriate to deal with background facts of the decision in Havi Logistics (supra) which are summarised below: a. The appellant entered into an asset purchase agreement (“the agreement”) with Martin-Brower Malaysia Co Sdn Bhd to purchase certain assets and liabilities. The appellant applied to the respondent for assessment of stamp duty payable on the agreement. The respondent assessed the agreement with ad valorem duty of RM 399,196.00 on the basis that the agreement fell within the ambit of s 21(1) of the Stamp Act 1949 (‘the Act’), and item 32 of the First Schedule to the Act (‘assessment’). The appellant made payment of RM 399,196.00 to the respondent under protest with a notice of objection as required under s 38A of the Act. b. The appellant lodged an appeal against the assessment on grounds that the agreement should be assessed based on item 4, First Schedule of the Act, wherein only a fixed stamp duty of RM10.00 was payable. The respondent rejected the appellant’s appeal and maintained the earlier decision to impose ad valorem duty on the instrument. c. Aggrieved by the respondent’s decision, the appellant appealed to the High Court by way of a case stated pursuant to s 39 of the Act. The High Court allowed the appellant’s appeal and the respondent appealed. d. At the Court of Appeal, the respondent’s appeal was allowed and the respondent’s assessment imposing ad valorem duty under item 32(a) of the First Schedule of the Act was upheld. e. The appellant being dissatisfied with the decision of the Court of Appeal, applied for leave to appeal to the Federal Court, which in turn granted leave to appeal, on the following questions of law: (i) whether the agreement was a conveyance on sale within the meaning of s 21(1) of the Act which was dutiable under item 32(a) of the First Schedule of the Act (‘question 1”); (ii) whether the deeming provision in clause 2.3(c)(i) of the agreement made the agreement an instrument (i.e. conveyance on sale) which fell under s 21(1) of the Act (‘question 2’); (iii) whether the agreement fell under the exception under s 21(1) of the Act and if the answer was in affirmative, was the Court of Appeal correct to subject the agreement to ad valorem duty under item 32(a) of First Schedule of the Act (‘question 3’); and (iv) whether the Collector of Stamp Duties may raise a stamp duty assessment without specifying which sub-limb of item 32 of the First Schedule of the Stamp Act 1949 that the Collector had invoked (‘question 4’). [53] Learned counsel for GTP in his submission contended that the facts in Havi Logistics (supra) can be distinguished from the facts in this appeal. We can only surmise that this was on the basis that there is a difference in the nature of the assets transacted. To a certain extent we agree with submission. [54] Nonetheless, the issue in Havi Logistics (supra) is similar to the present appeal as it does deal with the issue of whether the title of the acquired assets under the agreement therein, was passed under the agreement by virtue of the contractual deeming provision in the said agreement. If it did, it would mean that the asset purchase agreement was a conveyance on sale within the meaning of s 21(1) of the Stamp Act 1949, which attracts imposition of duty under item 32(a) of the First Schedule of the Stamp Act 1949. [55] At paragraphs [55] to [57] of the judgment, Vazeer Alam FCJ in delivering the judgment of the Federal Court, stated as follows: “[55] Learned counsel for the appellant relied on The Commissioner of Inland Revenue v G Angus & Co The Same v J Lewis and Sons (1889) 23 QBD 579, where the instrument in issue was held to be an agreement and not a conveyance on sale because the transaction was not completed at the time when the instrument was executed. The completion date was a future date. Thus, the appellant contended that similarly the agreement was not chargeable with ad valorem duty as the transaction therein was not completed at the time when the instrument was executed, and that the closing was at a future date. We are unable to accept this argument for the simple reason that the principle enunciated in Angus was no longer applicable following the statutory introduction of s 59 to the UK Stamp Act, as was noted by the Court of Appeal in para 46 of its judgment: ... it removes the previous requirement that an instrument must operate to convey or transfer property before it becomes chargeable with ad valorem duty. The net is now cast wider, to encompass all contracts for sale of an estate or interest in property, regardless of whether such contract operates as an instrument of conveyance. [56] Now, when the agreement is read as a whole, it is evident that the sale of the business consisting of the fixed assets, liabilities and business contracts were properties within the meaning in s 2 of the Act, and the intention of the parties is clearly to transfer these properties upon the sale to the appellant without the need for any further acts on the part of the parties. Thus, the agreement clearly falls within the second category of s 21(1) of the Act. [57] There is no requirement under s 21(1) of the Act that an instrument must operate to convey or transfer property for it to be a conveyance on sale. The fact that the sale transaction is not concluded on the date of the instrument or that it was to be completed at a future date is immaterial. The timing of the closing or when the title to the property passes cannot be the determinant factor in construing whether an instrument is a conveyance on sale. Otherwise, ad valorem stamp duty can easily be avoided by merely stating in the instrument that the title to the property sold shall pass at a future date. In fact, the introduction of s 59 of the UK Stamp Act 1891 (which is in pari materia with our s 21(1) of the Act) was to deal with and make an exception to the requirement in s 2 of the Act that such instruments must convey or transfer the property before it can be chargeable with ad valorem duty. (emphasis added). [56] Thus, it is clear from the above passage that GTP’s reliance on the English court’s decision in Angus is no longer tenable. For the sake of completeness, we summarise below the ratio in Havi Logistics (supra): i. an asset purchase agreement effecting the transfer of fixed assets, liabilities, and business contracts (excluding goodwill) is a ‘conveyance on sale’ under s 21(1) of the Stamp Act 1949, chargeable with ad valorem duty under item 32(a) of the First Schedule. ii. The exception for ‘goods’ in s 21(1) applies only to trading goods, not to fixed or capital assets. The principles from BASF Services (M) Sdn Bhd v Pemungut Duti Setem (supra) were affirmed, particularly that stamp duty is imposed on the instrument and its operative effect, not on the transaction or the parties’ description. "Goods" must be construed noscitur a sociis with "wares" and "merchandise", meaning only trading goods (i.e., inventory or stock-in-trade) fall within the exception, and not all moveable property iii. there is no requirement under section 21(1) that an instrument must operate to convey or transfer property for it to be a conveyance on sale. This was a departure from the approach in BASF Services (M) Sdn Bhd v Pemungut Duti Setem (supra), where the focus was on whether the instrument itself effected the transfer or whether a further step (such as a transfer form) was required. iv. the agreement itself, by its terms, was sufficient to constitute a conveyance on sale, regardless of any deeming provision in the contract. v. the function of the court is to interpret the statute according to the intent of Parliament, as deduced from the language used. The Federal Court found that the approach in BASF Services (M) Sdn Bhd (supra) did not give full effect to the legislative intent behind section 21(1) and item 32(a) of the First Schedule, particularly in relation to what constitutes a "conveyance on sale" and the scope of the "goods" exception. [57] In our final analysis, we can do no better than to echo the words of Vazeer Alam FCJ in Havi Logistics (M) Sdn Bhd (supra) at paragraph [57]: “…The fact that the sale transaction is not concluded on the date of the instrument or that it was to be completed at a future date is immaterial. The timing of the closing or when the title to the property passes cannot be the determinant factor in construing whether an instrument is a conveyance on sale. Otherwise, ad valorem stamp duty can easily be avoided by merely stating in the instrument that the title to the property sold shall pass at a future date.” [58] Based on the above reasons, we find that an appellate interference is warranted. The appeal by the PDS is hereby allowed and the decision and Order of the High Court is set aside with costs of RM30,000.00. Dated: 6 July 2026 -Sgd- (MOHD FIRUZ BIN JAFFRIL) JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA Counsel/ Solicitors For the Appellant: 1. Puan Marina binti Ibrahim, SRC 2. Puan Azleena binti Md Khairuddin, RC [Lembaga Hasil Dalam Negeri (LHDN), Cyberjaya] For the Respondent: 1. Encik Anand Raj 2. Puan Foong Pui Chi 3. Cik Chantal Leann Barnabas [Messrs. Shearn Delamore & Co.]