The applicant has failed to exhaust the domestic remedy provided under s 99 of the ITA. S/N Fmc8onf5xEiJqcZoAVZuHw [17] First, on whether the Minister had made a “decision”, the learned SFC contended that the applicant cannot arbitrarily assume that the Minister had made a decision when the Minister failed to reply to the applicant’s letter requesting the Minister to exercise his discretion under the ITA. [18] A “deemed decision”, according to the learned SFC, is not a decision within the ambit of O 53 r (2)(4) of the ROC. My attention was then drawn to the judgment of the Court of Appeal in Abdul Rahman bin Abdullah Munir & Ors v. Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704. The Court of Appeal held that a non-response to a letter could not be construed as a deemed decision. According to the Court of Appeal, such an approach would give rise to an artificial meaning to the word decision. [19] Secondly, the learned SFC submitted that by challenging the NA and NAA, the applicant company, in essence, is challenging the decision made by the DGIR. [20] However, the applicant failed to name the DGIR in this application for judicial review. [21] The learned SFC further submitted that by not naming the DGIR, the instant application is frivolous and vexatious since the proper impugned decision is the issuance of the NA and NAA. The decision maker of the proper impugned decision is not Minister but the DGIR. [22] Thirdly, the nature and effect of the prayer sought by the applicant are for the Minister to exercise his power under the ITA. The learned SFC submitted that such a relief cannot be granted because there is no legal duty imposed against the Minister to set aside the NA and NAA. This Court is then urged to conclude that in the absence of such legal duty, the relief sought shall not lie against the Minister. [23] The learned SFC then referred me to the judgment of the Court of Appeal in Peguam Negara Malaysia v. Micheal Jeyakumar Devaraj [2012] 1 MLJ 179 CA. The Court of Appeal held that before the Court can grant an order of mandamus, an applicant must establish the existence of a duty of a public nature, the performance of which is imperative and not optional or discretionary. S/N Fmc8onf5xEiJqcZoAVZuHw [24] In short, it is the contention of the learned SFC that mandamus can only be granted if the applicant can establish the existence of a legal duty imposed on the Minister and that the applicant has the legal right to compel the performance of that duty. [25] Fourthly, under s 135 of the ITA, the Minister may give the DGIR “directions of a general character” (not inconsistent with the ITA) as to the exercise of the functions of the DGIR under the Act. [26] According to the letter from the applicant, the applicant stated that as the DGIR had misapplied the law, the applicant then requested the Minister to direct the DGIR to review his exercise of power and functions so that “the law is applied correctly and fairly”. The learned SFC argued that the Minister is not required to give a direction of a general character to the DGIR. This is so, the learned SFC submitted, because there is already a built-in mechanism under the ITA in the form of an appeal to the Special Commissioner of Income Tax (“SCIT”) in the event that the applicant is dissatisfied with the issuance of the NA and NAA. [27] In any event, according to the learned SFC, the general provision under s 135 cannot defeat the specific provision to appeal against the decision of the DGIR under s 99 of the ITA. The maxim of generalia specialibus non derogant applies. [28] The learned SFC then referred me to the judgment of the Court of Appeal in Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719 CA. The Court of Appeal held that where there are two provisions of written law, one general and the other specific, then, whether or not these two provisions are to be found in the same or different statutes, the special or specific provision excludes the operation of the general provision. [29] The case for the putative respondent is that the applicant’s action in writing to the Minister and seeking for a general direction pursuant to s 135 of the ITA defeats the specific provision provided in the same Act, which had laid out the scheme for challenging the notice of additional assessment by an aggrieved party. [30] Finally, if indeed the applicant is dissatisfied with the issuance of the NA and NAA, it should have filed an appeal to the SCIT under s 99 of the ITA. S/N Fmc8onf5xEiJqcZoAVZuHw Analysis [31] What is the implication of the non-response from the Minister to the impugned letter? Can it be considered a “deemed decision” within the ambit of the judgment of the Court of Appeal in Abdul Rahman bin Abdullah Munir? In that case, the Court of Appeal rejected the appellants’ argument that there was a “deemed decision” by the Datuk Bandar Kuala Lumpur (“Datuk Bandar”) made on 5.1.2005 when he failed to revert to the appellant's letter of 22.12.2004. [32] The Court of Appeal held that the appellants' interpretation towards Datuk Bandar’s non-response to their letter makes no sense and far stretches one's imagination. In short, the Court of Appeal was of the view that a mere non-response by a public authority could not be construed as a decision that is amenable to judicial review. [33] It is my respectful opinion that the decision of the Court of Appeal in Abdul Rahman bin Abdullah Munir must be viewed in the context of the former O 53 r 2(4) of the Rules of High Court (“RHC”) on which the judgment was based. [34] The former O 53 r 2(4) of the RHC states as follows: Any person who is adversely affected by the decision of any public authority shall be entitled to make the application. However, the new O 53 r 2(4) of the ROC provides as follows: Any person who is adversely affected by the decision, action or omission in relation to the existence of the public duty or function shall be entitled to make the application. [35] As can be seen from the new O 53 r 2(4) of the ROC, the phrase “action or omission” was added to the word “decision”. In short, with the introduction of “action and omission”, the subject matter that is amenable to judicial review is not limited to the impugned decision only. It encompasses a non-response, a non-decision, an inaction or an omission to make any decision at all. The question of a “deemed decision” is no longer relevant since an omission would suffice. S/N Fmc8onf5xEiJqcZoAVZuHw [36] In the light of the new O 53 r 2(4) of the ROC, the omission or a non-response of a public authority is amenable to judicial review. If any authority is needed to support the aforesaid proposition, it can be found in the judgment of the High Court in Zainal bin Haji Nasiruddin v The Registrar of Societies [2013] 7 BLR 704. In that case, the applicant applied for registration of PAKAR under the Societies Act 1966. The decision to register or otherwise is within the discretion of the Registrar under the Societies Act 1966. [37] However, the Registrar had failed to make a decision – one way or the other. Ravinthran Paramaguru JC (now JCA) held that: In my opinion, the inordinate and continuing delay without good reason in the instant case is equivalent to refusal to make a decision. As the applicant has sufficient legal interest in the duty of the Registrar to make a decision on the application to register PAKAR, I hold that the refusal to make a decision is unlawful and ultra vires the Societies Act 1966. [38] In the instant case, the applicant urged the Minister to exercise his power under the ITA in its favour. The Minister may or may not agree with the request made by the applicant. After all, s 135 of the ITA employs the word “may”. In the circumstances, in the exercise of his discretion, the Minister is at liberty to refuse to accede to the request for so long as he has reasonable grounds to do so. That is perfectly within the power of the Minister. [39] However, s 135 of the ITA is not a stand-alone provision. It has to be read in the context of other provisions of the ITA. Under s 103 of the ITA, the tax payable under the NAA shall be due and payable on the due date whether or not that person appeals against the assessment. Under s 106, the Government may recover the tax due and payable by civil proceedings as a debt due to the Government. [40] In view of the urgency of the matter, the applicant sought for the Minister to interfere. The non-response from the Minister would expose the applicant company to possible civil action. The applicant would be prejudiced. The non-response in the context of the urgency of the time frame would amount to an omission within the context of O 53 r 2(4) of the ROC and I so hold. S/N Fmc8onf5xEiJqcZoAVZuHw [41] Lest it be mistaken, the Minister’s inaction is now the subject matter of leave for judicial review. It is not the issuance of the NAA by the DGIR. The applicant is seeking for the Minister to exercise his power under s 135 of the ITA to give directions of a general character to the DGIR that is not inconsistent with the Act. Whether or not the Minister has such power is not to be decided or resolved at this leave stage. [42] Since the Minister’s non-response is now the subject matter of challenge, there is no need for the DGIR to be made a party. The DGIR is not part of the decision or rather non-decision of the Minister. [43] For the same reason, the question of any appeal under s 99 of the ITA does not arise. In Ketua Pengarah Hasil Dalam Negeri v. Alcatel-Lucent (M) Sdn Bhd & Anor [2017] 2 CLJ 1 FC, Zainun Ali FCJ, in delivering the supporting judgment of the Federal Court remarked that if the 1st respondent, in that case, was dissatisfied with the notice of assessment issued by the DGIR, the 1st respondent ought to have exercised its right to appeal under s 99 of the ITA and made known of its dissatisfaction to the SCIT. [44] However, as can be seen in the factual matrix of Alcatel-Lucent, the grievance was against the DGIR and not the Minister. Therefore, under the circumstances, it was only proper for the Federal Court to direct the 1st respondent to exhaust the domestic remedy available under s 99 of the ITA. [45] The case of Alcatel-Lucent is therefore distinguished. [46] Finally, the learned SFC cited the judgment of the Court of Appeal in Micheal Jeyakumar Devaraj and submitted that the applicant company must establish the existence of a duty of a public nature, the performance of which is imperative and not optional or discretionary. [47] In Micheal Jeyakumar Devaraj, the respondent, a Member of Parliament for Sungai Siput, made an application for the allocation of funds from the Federal Consolidated Funds to fund certain projects for the constituency of Sungai Siput. The Director of the Perak State Development Office ('the director') informed the respondent that a total of 56 projects valued at RM1.72m had already been approved for Sungai Siput, while other applications S/N Fmc8onf5xEiJqcZoAVZuHw would be given due consideration. Dissatisfied with this decision, the respondent applied under O 53 of the RHC for leave for judicial review of the director's decision. The respondent's motion sought, inter alia, an order of mandamus to compel the appellants to disclose information in respect of the projects for which the allocation will be granted for the Sungai Siput constituency and an order of mandamus to compel the director to grant his application. The High Court granted the respondent's leave application. The appellants appealed. [48] On appeal, the Court of Appeal held that it was clear that the director would not approve all applications and disburse funds from the allocation but would consider each application in accordance with the guidelines for that purpose. Thus, the approval and disbursement applications involved an exercise of discretion, which could only be decided by the director in line with policy considerations and management prerogative. [49] In the instant case, the statutory power given to the Minister to give a direction to the DGIR not inconsistent with the ITA cannot be construed as a policy consideration, as in Micheal Jeyakumar Devaraj. The power of the Minister is housed in the ITA. It is a statutory power. It is not a power based on policy consideration of the government of the day. [50] The learned SFC submitted that ss 135 and 127(3A) of the ITA are not designed to empower the Minister to set aside the NAA and NA raised by the DGIR. My respectful view is that this is an issue that goes to the merits of the application. It can only be addressed at the substantive stage. The same goes for whether the maxim of generalia specialibus non derogant applies. It should be ventilated at the substantive stage. [51] In CMMT Investment Ltd v Menteri Kewangan Malaysia [2022] MLJU 360, my learned sister Noorin J in addressing a similar application for leave, remarked as follows: Further, if a decision on a competent matter is so unreasonable that no reasonable authority could have arrived to it then the courts can interfere (see: Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223). Unreasonableness is a conclusion which may be applied to a decision S/N Fmc8onf5xEiJqcZoAVZuHw which lacks evidence and intelligible justification (see: Ong Ah Hooi v Pentadbir Tanah Larut, Matang dan Selama & Anor [2017] 2 MLJ 256). It is therefore a triable issue whether the Respondent has acted unreasonably when he fails to give any valid justification, reason or basis for the Decision not to exempt the alleged arbitrary Assessment. [52] At this leave stage, this Court should not go into the merits of the case. My role is only to see if the application for leave is frivolous; Tang Kwor Ham & Ors v. Pengurusan Danaharta Nasional Bhd & Ors [2006] 1 CLJ 927 CA. In view of the reasons aforesaid, this application for leave is not frivolous and ought to be further ventilated at the substantive stage. [53] Leave is granted with costs in the cause. [54] As to the application for stay, Noorin J in CMMT Investment was of the view that a stay in a judicial review application is not the same as a stay of execution after judgment in judicial proceedings. I respectfully agree. To my mind, preserving the status quo pending the determination of the judicial review application, which as a result, will not deny the applicant the full benefit of a successful challenge against the Minister’s non-response to the impugned letter. [55] I therefore allow the stay application pending the determination of the application of this judicial review. [56] For the same reasons stated herein, the application for leave to commence judicial review in JR No.257, JR No. 278 and JR No. 285 is also allowed. Tarikh: 28 Februari 2023 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. S/N Fmc8onf5xEiJqcZoAVZuHw Pihak-pihak: Bagi Pihak Pemohon : S Saravana Kumar, Yap Wen Hui, Ng Kar Ngai, Nur Hanina binti Mohd Azham, Gan Ee Ling Tetuan Rosli Dahlan Saravana Partnership Bagi Pihak Responden : Nur Idayu binti Amir SFC Nik Isfahanie Tasnim Ab Rahman SFC Krishna Priya a/p Veenagopal @ Venugopal FC, Jabatan Peguam Negara, Putrajaya