Third Schedule THIRD SCHEDULESupplementary
APPEALS Appeals to be heard by three Special Commissioners 1. (1) Every appeal shall be heard by three Special Commissioners, at least one of whom shall be a person with experience as an advocate, as a member of the judicial and legal service of the Federation or as the holder of an office to which the Judges Remuneration Act 1963 [Act 45] applies. (2) If a Chairman of the Special Commissioners has been appointed and is present at the hearing of an appeal, he shall preside at the hearing. (3) If, when an appeal is heard, no Chairman of the Special Commissioners has been appointed or the Chairman is absent, the Special Commissioners present shall choose one of their number [who shall be a person with experience of the kind mentioned in subparagraph (1)] to preside at the hearing. Place of sitting 2. The Special Commissioners shall sit for the hearing of appeals in such places as they think appropriate. Sending forward of appeals, etc. 3. Where the Director General sends an appeal forward in pursuance of section 46, he shall do so by forwarding to the Clerk a copy of the notice of appeal given under section 43, together with an address for service and a request for the appeal to be set down for hearing. 4. The notice forwarded under paragraph 3 shall constitute the petition of appeal and the appellant’s address contained therein shall constitute the appellant’s address for service. 5. Either party to an appeal may change his address for service by giving written notice of the change to the Clerk and the other party. Place and date of hearing 6. On receipt of a request under paragraph 3 for an appeal to be set down for hearing, the Clerk shall fix a place and date of hearing which he considers suitable and shall give the appellant and the Director General at least twenty- eight days notice of the date and place so fixed: Provided that, before sending an appeal forward the Director General may make an agreement in writing with the appellant fixing any place which the Special Commissioners think appropriate as the place of hearing of the appeal and, where he does so— (a) he shall forward a copy of the agreement to the Clerk when he sends the appeal forward; and (b) the Clerk shall fix as the place of hearing the place so agreed. 7. One of the Special Commissioners on the application of a party to an appeal may, after giving the other party an opportunity to be heard, vary any date or place fixed under paragraph 6 and may do so, in the case of a place so fixed, notwithstanding that the appeal has been partly heard in that place. Appeals may be heard together 8. One of the Special Commissioners may order— (a) two or more appeals by the same appellant; or (b) two or more appeals by different appellants, if they agree, to be heard together. 9. One of the Special Commissioners may make an order under subparagraph 8(a) either of his own motion or on the application of a party to one of the appeals in question, but no such order shall be made until the parties to those appeals have been given an opportunity to be heard. Scope of argument 10. At the hearing of an appeal the appellant may rely on grounds of appeal other than those stated in the petition of appeal and may vary any ground of appeal so stated: Provided that, where he does so without giving reasonable notice to the Director General, the Special Commissioners shall adjourn the hearing for a reasonable period if requested to do so by the Director General. Onus of proof 11. The onus of proving that an assessment against which an appeal is made is excessive or erroneous shall be on the appellant. Representation and attendance 12. For the purposes of an appeal— (a) the Director General may be represented by an authorized officer, a legal officer, an advocate either alone or by one of them together with the other or others of them; (b) the appellant may be represented by an advocate or an accountant or by both an advocate and an accountant; and (c) if the appellant is the principal within the meaning of section 29, the appellant may be represented by the representative within the meaning of that section. 13. In paragraph 12— “accountant” means— (a) a professional accountant authorized by or under any written law to be an auditor of companies; (b) any other professional accountant approved for the purposes of this Act by the Minister; or (c) any other person approved for the purposes of this Act by the Minister on the recommendation of the Director General; “legal officer” means a legally qualified public officer entitled under the law in force in any part of Malaysia to represent the Government in civil proceedings by or against the Government. 14. The Director General and the appellant may— (a) attend at the time and place fixed for the hearing of the appeal; and (b) do any other thing or take any other action in connection with the appeal, either personally or by a representative of the kind referred to in paragraph 12 or together with such representative or representatives. 14A . Where both parties to an appeal attend pursuant to paragraph 14 at the time and place fixed for the hearing of the appeal the Special Commissioners may on the application of either or both of the parties grant a postponement of the hearing on such terms as they consider reasonable, including terms as to the costs of the postponement to the Special Commissioners and to the party not applying for postponement, against the party or parties (as the case may be) applying for the postponement. 15. Where a party to an appeal fails to attend, either personally or by a representative of the kind referred to in paragraph 12, at the time and place fixed for the hearing of the appeal, the Special Commissioners— (a) if they are then and there satisfied that the defaulting party is prevented from attending by sickness or other reasonable cause, shall postpone the hearing for what appears to them to be an appropriate time; (b) if they are not so satisfied, shall hear and decide the appeal in the absence of the defaulting party. 16. Where, after a deciding order has been made under paragraph 15 as the result of a party’s failure to attend at the time and place fixed for the hearing of an appeal, the Special Commissioners are satisfied on an application made within a period of thirty days after the making of the order that the defaulting party was prevented from attending by sickness or other reasonable cause, they may set aside the order and fix a time and place for a fresh hearing of the appeal. Powers of Special Commissioners 17. The Special Commissioners shall have— (a) power to summon to attend at the hearing of an appeal any person who in their opinion is or might be able to give evidence respecting the appeal; (b) power, where a person is so summoned, to examine him as a witness on oath or otherwise; (c) power, where a person is so summoned, to require him to produce any books, papers or documents which are in his custody or under his control and which the Special Commissioners may consider necessary for the purposes of the appeal; (d) power, where a person is so summoned, to allow him any reasonable expenses incurred by him in connection with his attendance; (e) all the powers of a subordinate court with regard to the enforcement of attendance of witnesses, hearing evidence on oath and punishment for contempt; (f) subject to subsection 73(5), power to admit or reject any evidence adduced, whether oral or documentary and whether admissible or inadmissible under the provisions of any written law for the time being in force relating to the admissibility of evidence; (g) power to postpone or adjourn the hearing of an appeal from time to time (including power to adjourn to consider their decision). Witnesses bound to tell truth 18. Every person examined as a witness by or before the Special Commissioners, whether on oath or otherwise, shall be legally bound to state the truth. Witnesses’ expenses 19. (1) Expenses allowed under subparagraph 17(d) shall be assessed by the Clerk on the scale used in civil proceedings in a subordinate court and shall be paid by the appellant or the Government as the Special Commissioners may direct. (2) In a case where section 29 applies, the Special Commissioners may direct that expenses assessed under subparagraph (1) shall be paid by the representative (within the meaning of that section); and, where they so direct, subsections (4) to (7) of that section shall apply as if those expenses were tax due from the representative. Procedure at hearing 20. Subject to this Schedule, the procedure at the hearing of an appeal shall be regulated by the Special Commissioners in whatever manner they consider appropriate. Deciding orders 21. As soon as may be after completing the hearing of an appeal the Special Commissioners shall give their decision on the appeal in the form of an order which shall be known as a deciding order and which, subject to this Schedule, shall be final. 22. A deciding order may, if the Special Commissioners think fit, be read or summarized in the presence of the parties by one of the Special Commissioners or by the Clerk; but the fact that any deciding order is not so read or summarized shall not affect its validity and the fact that any deciding order is so read or summarized shall not relieve the Clerk of his obligation under paragraph 39 to cause a copy of the order to be served on the parties. 23. If the Special Commissioners differ among themselves as to the decision to be given on an appeal— (a) the opinion of the majority shall prevail; and (b) the Special Commissioner who dissents from the majority view shall sign the deciding order as required by paragraph 39 (unless he is incapacitated from doing so as mentioned in that paragraph), but in doing so shall indicate the fact of his dissent and may, if he thinks fit, add a statement of his reasons therefor. 24. Subject to paragraph 23, a deciding order shall either confirm or discharge the assessment to which the appeal relates or shall direct the Director General to amend the assessment; and, where it directs amendment, the order shall— (a) specify the appropriate amendments; (b) require appropriate amendments to be determined by agreement between the parties or, failing agreement, by the Special Commissioners; or (c) specify some of the appropriate amendments and require the others to be so determined. 25. Where a deciding order is made pursuant to subparagraph 24(b) or (c) in respect of an appeal, section 45 shall apply as if references to the order were substituted for references to the notice of appeal under subsection 43(1) (any agreement come to pursuant to the order being deemed to be and to have the same effect as an agreement come to under subsection 45(2) and section 46 shall apply as it applies on a failure to agree under subsection 45(2): Provided that— (a) if the Special Commissioners are required under paragraph 29 to state a case in respect of the order, section 46 shall not come into operation until all proceedings respecting the case have been completed; and (b) if the Director General has cause to send the appeal forward to the Special Commissioners pursuant to section 46, he shall do so by sending to the Clerk and the appellant a written statement that a further hearing has become necessary by reason of the parties’ failure to agree. 26. Where an appeal is set down for further hearing pursuant to paragraph 25, it shall not be necessary for the further hearing to take place before the same Special Commissioners as those who heard the earlier proceedings. Costs and fees 27. Except as expressly provided in this Schedule, the Special Commissioners shall not make any order as to the payment of the costs of an appeal. 27 A. (1) Any sum ordered to be paid by the Special Commissioners as costs shall become due and payable on the order for payment being made and shall be recoverable— (a) in the case of costs ordered to be paid to the appellant, as a debt due to him; and (b) in the case of costs ordered to be paid to the Special Commissioners or the Director General, as a debt due to the Government. (2) In any proceedings for the recovery of costs ordered by the Special Commissioners the production of a certificate signed by one of the Special Commissioners giving the names and addresses of the persons to whom and by whom such costs are to be paid and the amount of the costs due shall be sufficient evidence of the amount so due and sufficient authority for the court to give judgement for the amount. 28. (Deleted by Act A353). 29. Either party to proceedings before the Special Commissioners may appeal on a question of law against a deciding order made in those proceedings [including a deciding order made pursuant to subparagraph 24(b) or (c)] by requiring the Special Commissioners to state a case for the opinion of the High Court and by paying to the Clerk at the time of making the requisition such fee as may be prescribed from time to time by the Minister in respect of each deciding order against which he seeks to appeal. 30. A requisition under paragraph 29 shall be in writing and shall be sent or delivered to the Clerk within twenty-one days after the service on the intending appellant of the order against which he seeks to appeal. 31. The High Court on the application of an intending appellant made by summons in chambers may extend the period of twenty-one days mentioned in paragraph 30. 32. A case stated under paragraph 29— (a) shall set forth the facts as found by the Special Commissioners, the deciding order and the grounds of their decision; and (b) shall be signed by the Special Commissioners who heard the appeal (or, if any of them are incapacitated from signing by illness, absence or other cause, by such of them as are able to do so). 32A . (1) The appellant shall pay to the Clerk the costs of preparing the case stated at such rate as may be prescribed from time to time by the Minister. (2) The Special Commissioners may at any time before a case stated is transmitted to the High Court require the appellant to deposit with the Clerk a sum which in their opinion will cover the cost of preparing copies of the case stated for the High Court and the parties, and where they do so they may refrain from stating the case or prevent the case stated from being transmitted to the High Court unless the required deposit is made. (3) Any party to an appeal may obtain from the Clerk extra copies of the case stated on payment of such fee as may be prescribed from time to time by the Minister. 33. When a case has been stated and signed in accordance with paragraph 32, the Clerk shall transmit it to the High Court and serve a copy of it on the parties to the proceedings in respect of which it is stated. 34. The High Court shall hear and determine any question of law arising on a case stated under paragraph 29 and may in accordance with its determination thereof— (a) order the assessment to which the case relates to be confirmed, discharged or amended; (b) remit the case to the Special Commissioners with the opinion of the court thereon; or (c) make such other order as it thinks just and appropriate. 35. At any time before it determines the questions of law arising on a case stated under paragraph 29, the High Court may— (a) cause the case to be sent back to the Special Commissioners for amendment; or (b) require the Special Commissioners to find further facts and state a supplementary case, and may postpone or adjourn the proceedings before it until the amendment has been made or the requisition complied with. 36. There shall be such rights of appeal from decisions of the High Court on cases stated under paragraph 29 as exist in respect of decisions of the High Court on questions of law in its appellate civil jurisdiction. 37. Unless it is otherwise provided by rules of court, the rules of court for the time being in force in relation to appeals in civil matters from a subordinate court to the High Court and from the High Court in its appellate jurisdiction to the Court of Appeal shall, subject to this Schedule, apply with the necessary modifications to appeals under this Schedule to the High Court and the Court of Appeal respectively. Supplemental provisions 37 A. Where any matter of procedure or practice is not provided for in this Schedule, the procedure and practice for the time being in force or in use in the subordinate court or in the High Court, as the case may be, shall be adopted and followed with the necessary modifications. 38. (1) Proceedings under this Schedule before the Special Commissioners or the court shall take place in camera: Provided that where the Director General applies to the Special Commissioners or the court, as the case may be, that the proceedings, or such part thereof as he may deem necessary, be heard by way of a hearing open to the public, the Special Commissioners or the court, as the case may be, shall direct that the proceedings or the part thereof, as the case may be, shall be so heard notwithstanding any objection from any other party to the proceedings: Provided further that where in the opinion of the Special Commissioners or the court any proceedings or part thereof heard in camera ought to be reported, the Special Commissioners or the court, as the case may be, may publish or authorize publication of the facts of the case, the arguments and the decision relating to the proceedings or the part thereof heard in camera, but without identifying the parties (other than the Director General) where the whole proceedings were heard in camera. (2) Any publication authorized under subparagraph (1) may be obtained from the Special Commissioners or the court on payment of such fee as may be prescribed from time to time by the Minister. 39. Where a deciding order or any other order is made by the Special Commissioners or one of the Special Commissioners in or in connection with proceedings under this Schedule— (a) the order shall be dated and signed by the Special Commissioners or Special Commissioner making it; and (b) a copy of the order shall be served by the Clerk on the parties to the proceedings: Provided that, if any of the Special Commissioners who have made a deciding order are incapacitated from signing by death, illness, absence or any other cause, the order shall be signed by such of them as are able to do so. 40. Directions for the settlement or disposal of any matter of a procedural nature arising in connection with proceedings before the Special Commissioners, the High Court, the Court of Appeal or the Federal Court under this Schedule may, if no other provision is made by or under this Act or rules of Court for the settlement or disposal of the matter, be given— (a) in relation to proceedings before the Special Commissioners, by one of the Special Commissioners on an application made in whatever manner he considers appropriate; and (b) in relation to proceedings before the High Court, the Court of Appeal or the Federal Court, by the High Court on an application made by summons in chambers. 41. The Special Commissioners in the exercise of their functions shall enjoy the same judicial immunity as is enjoyed by the person presiding in a subordinate court. 42. In sections 193 and 228 of the Penal Code the words “judicial proceeding” shall be deemed to include an appeal. 43. In this Schedule— “appeal”, except in paragraphs 29 to 37, means an appeal to the Special Commissioners under section 43; “deciding order” means a deciding order made under paragraph 21; “subordinate court” means a sessions court; “High Court”, in relation to an appeal heard by the Special Commissioners, means (unless the parties to the appeal agree otherwise in writing) the High Court having jurisdiction in the place where the appeal begins to be heard by the Special Commissioners. LAWS OF MALAYSIA PETROLEUM (INCOME TAX) ACT 1967