“If a party to a hearing before commissioners expresses dissatisfaction with their determination as being erroneous in point of law, it is for them to state a case and in the body of it to set out the facts that they have found as well as their determination. I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur.”
“The question is not, has the party upon whom rests the burden of proof established on the balance of probabilities the facts upon which he relies, but, was there evidence before the tribunal which was sufficient to support the finding which it made? In other words, was the finding one which the tribunal was entitled to make? Clearly, if there was no evidence, or the evidence was to the contrary effect, the tribunal was not so entitled.”
“Had matters rested at that point, this tribunal would have been unhappy with the conclusion that VAT had been underdeclared. True, an invigilation had been performed which suggested that the recorded figures for takings on which Mr Arif's declarations of VAT had been based were low, but on the strength of the evidence so far assembled, not so suspiciously low, in our view, that they could be concluded to be false. For Customs to reach a conclusion that there had been underdeclarations, either additional observations of the business, or an examination of the supply side (i.e. the purchases of the business), or some other evidence, would at that stage be required.”
“However, just as the results of the invigilation on26 February 1999 were not in our view conclusive as to suppression, so we think that the supply side information obtained by Customs and presented to the tribunal is insufficiently conclusive of suppression.”
“Whilst this evidence taken as a whole is indicative of suppression, in point of detail it has been successfully challenged.”
“We think that it is obvious that Mr Arif deliberately adjusted his declared takings to allow for the level of trading that had by then been appreciated by Customs. The declared figures speak for themselves.”
“That result impacts upon the other evidence in the case besides that of the till rolls. Given that we find that Mr Arif's evidence as to the till rolls is unacceptable, what is the tribunal to make of the other evidence as to suppression in this case? Would it not then be correct that the evidence of the invigilation, of the supply side of his business, and of his takings since the invigilation is all indicative of shortfalls in the tax properly payable by him before Customs investigated? Mr Nawaz has on Mr Arif's behalf done an excellent job in attacking the quality of that evidence, but in principle, the evidence nevertheless goes to confirm that Mr Arif has defaulted in payment of all the tax due from him.”
“We do not think that the evidence of the till rolls demonstrates a disproportionately high level of takings for this business. The suppression rate employed seems to us to be a reasonable one when applied to the declared takings of the business over the years of assessment that we are considering. There is nothing in the level of those takings from time to time which leads us to believe otherwise.”