Written by Lim Tse Hwei and Kam Sue Herng
Ketua Pengarah Hasil Dalam Negeri v. Yayasan Buah Pinggang Kebangsaan Malaysia [2024] 6 CLJ 413
Held in the Court of Appeal (“COA”) whereby the date of judgment is 1st April 2024.
The key issue was whether NKF was entitled to rely on IRB’s decision via their letter dated 17 June 2020 as the “impugned decision” for the judicial review. IRB took the position that the impugned decision was contained in its letter dated 29 August 2019, as the letter dated 17 June 2020 merely sought to reiterate their earlier position.
IRB argued that the High Court lacked jurisdiction to hear and determine the application, as it was filed beyond the stipulated three-month period under Order 53 rule 3(6) of the Rules of Court 2012.
This was the Inland Revenue Board’s (“IRB”) appeal against the High Court’s decision to grant leave to the Yayasan Buah Pinggang Kebangsaan Malaysia (“NKF”) for judicial review of the IRB’s decision to revoke its tax-exempt status.
NKF is a registered charitable foundation and had been granted tax exemption under Section 44(6) of the Income Tax Act 1967 (“ITA”) in 1970. IRB revoked the exemption via letters dated 29 August 2019 due to alleged non-compliance with the requirements under Section 44(6) of the ITA.
NKF promptly made representations to the IRB and to the Minister of Finance and requested for IRB to reconsider the revocation. After several correspondences and meetings between IRB and NKF’s representatives and tax agents, the IRB issued a letter dated 17 June 2020 to reiterate and maintain its decision to revoke NKF’s tax exemption status. NKF filed an application for judicial review on 17 September 2020, which the High Court allowed.
The Court of Appeal dismissed the appeal and held as follows:
- The impugned decision for purposes of the judicial review is IRB’s letter dated 17 June 2020, although IRB reiterated its earlier position in that letter. This was because IRB’s conduct indicated a willingness to reconsider its earlier decision. Therefore, its earlier letter dated 29 August 2019 could not be said to be the impugned decision.
- By virtue of Section 145 of the ITA, IRB’s letter dated 17 June 2020 was deemed to be delivered to NKF a day later, on 18 June 2020. Under Order 3 rule 2 of the Rules of Court 2012, the three-month period began an additional day later, on 19 June 2020, and ended on 18 September 2020. As NKF’s application was filed on 17 June 2020, NKF was perfectly within time.