JUDGMENT

Hamid Sultan Abu Backer J:

[1] This is our judgment in respect of the appellant's appeal and the respondent's cross appeal. We heard both the appeals on 5 December 2012 and allowed the appellant's appeal and dismissed the respondent's cross appeal with costs to the appellant. My learned brothers, Datuk Linton Albert and Datuk Wira Mohtarudin bin Baki, have read the judgment in draft form and approved the same.

[2] The appeal revolves on a complaint of the appellant that the learned High Court Judge interfered in the finding of facts of the Special Commissioners of Income Tax (SCIT) and to drive home the point relies on the case of ; [1982] 1 MLJ 235 where the Privy Council in no uncompromising terms held:

2

"Their Lordships cannot stress too strongly how important it is that, in every Case Stated for the opinion of the High Court, the Special Commissioners should state clearly and explicitly what are the findings of fact upon which their decision is based and not the evidence upon which those findings, so far as they consist of primary facts, are founded. Findings of primary facts by the Special Commissioners are unassailable. They can be neither overruled nor supplemented by the High Court itself; occasionally they may be insufficient to enable the High Court to decide the question of law sought to be raised by the case stated, but in that event it will be necessary for the case to be remitted to the commissioners themselves for further findings."

[emphasis added]

[3] At this stage of our judgment itself, we must say that courts exercising the appellate jurisdiction have over the years placed upon themselves various levels of self-imposed restrictions for appellate interference on the finding of facts of trial courts or tribunal, or statutory appeal by case stated as in the instant case [see ; [2001] 4 MLJ 97]. It must also be noted that the scope of appellate interference may be further restricted depending on the nature of the appeal as the jurisdiction relating to appeal, revision, review, reference, etc and the jurisprudence relating to such 'heads' are not one and the same [see Hari Shankar v. Rao Girdhari Lal AIR [1963] SC 698].

[4] When dealing with appellate interference on finding of facts, it is important to appreciate that the Evidence Act 1950 categorises facts into two types. They are physical facts and psychological facts. Physical facts under the Act refer to anything, state of thing, or relations of thing capable of being perceived by the senses. Psychological facts refer to any mental condition of which any person is conscious of.

Brief Facts

[6] The SCIT unanimously allowed the appellant's appeal before them on the following issues, namely: (i) whether or no