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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 528
1989 April 27
[A. LOIZOY, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
THEKLA PROTOPAPA - THROUGH HER REPRESENTATIVE
STEPHANOS PROTOPAPA,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE COMMISSIONER
OF INCOME TAX,
Respondent.
(Case No. 13/86)
Judicial control - Factual elements forming basis of decision - Appreciation of by Administration - Interference by Court - Principles applicable - Assessment of value of land for the purposes of the Capital Gains Tax Law - Usefulness of evaluation made by applicant, but not before the Administration, when sub judice decision reached - It is restricted to show whether the Administration acted under any misconception of fact or Law or in abuse of power, but otherwise, not being before the respondents, it should be ignored - A review by the Court is confined to the evidence that was before the respondent Commissioner.
In this case the applicant impugns the decision whereby the respondent Commissioner imposed Capital Gains Tax on him. The respondent acted on the basis of evaluation of the principal Assessor in the Department of Inland Revenue. A report prepared on behalf of the applicant by a valuer in private practice was not before the Commissioner, when he took the sub judice decision. The principle, applied by the Court, sufficiently appears in the hereinabove Headnote. Having reached the conclusion that the decision complained of was reasonably open to the respondent, the Court dismissed the recourse.
Recourse dismissed. No order as to costs.
Case referred to:
leronymides v. Republic (1988) 3 C.L.R. 2657.
Recourse.
Recourse against the capital gains tax assessments relating to the disposal by the applicant in respect of her property at Strovolos.
St. leronymides, for the Applicant.
Y. Lazarou, Counsel of the Republic B, for the Respondent.
Cur. adv. vult.
A. LOIZOU, P. read the following judgment. This recourse is against the capital gains tax assessments relating to the disposal by the applicant on the 24th September 1980 of 1/2 and on the 29th September 1980 of 1/4 of her property at Strovolos under Registration No. H. 334 Sheet/Plan 30/13 E 1, Plot 368 of an area of four donums, one evlek and 700 sq. feet.
The applicant who was the owner of a field at Ayios Vassilios, Strovolos, exchanged on the 24th September 1980, one half of the property with her sister Evgenia Stephanou Protopapa and her brother Athanassios Protopapas in consideration of another property owned by her sister and brother. Subsequently on the 29th September 1980, the applicant exchanged one quarter of her remaining half share in the above property to Kypriani Constantinou in consideration of another property owned by her mother. As the applicant failed to submit a declaration of disposal of immovable property as provided by Section 12 of the Capital Gains Tax Law, 1980, (Law No. 52 of 1980) hereinafter to be referred to as the Law, the respondent on the 22nd February 1985 raised on the applicant assessments imposing capital gains tax (Appendices "A" and "B"), against which she objected (Appendix "C").
On the 28th June 1985, the respondent for the sake of settlement reached a provisional agreement with the applicant's representative Stephanos Protopapas on the value of the part of the property disposed which was now computed to be £25,800 as at 27th June 1976, and £32,250 as at 29th September 1980. On the 23rd October 1985, the applicant's representative informed the respondent that the revised valuation was unacceptable and that in his opinion the value of the property as at 27th June 1978, was the same as at the date of the disposition.
On the 4th September 1985, the respondent determined under Section 18 of the Law the objection of the applicant by maintaining his original assessments and communicated his decision forthwith to applicant's representative together with the relevant Notices of Capital Gains Tax Payable (Appendices, "D", "E", "F").
As against these assessments the applicant filed her present recourse by which she claims that the sub judice assessment is contrary to the Law and/or unlawful and wrong and/or lower from the real market price of the said property, as it was manifestly higher and if fact £32,250 on the 27th June 1978, than the value assessed to be £25 800 by the respondents as on that date.
In support of her contentions the applicant has filed an affidavit by Mr. Th. Ieronymides, an expert valuer, a Chartered Surveyor Member of the Royal Institute of Surveyors of Great Britain, who was from 1968 to 1980 Director of the Department of Lands and Surveys and since then is engaged valuations of immovable property.
As against this valuation the respondent Commissioner has filed an affidavit by Mr. Gregoris Mateas, Principal Assessor in the Department of Inland Revenue, a qualified assessor and valuer, and Member of the Incorporated Society of Valuers and Auctioneers, who did also the original valuation upon which the sub judice decision was based.
The question that arises is not one as to which of the two valuations this Court prefers, but as to the extent of the jurisdiction of the Court to interfere with the appreciation by the administration of factual elements and of the material in the file which is not subject to judicial control so long as there does not exist a misconception of fact or law or abuse of power, nor is subject to judicial control the appreciation of the weight of the real facts constituting the reasoning.
In the case of Athinoulla leronymides v. The Republic (1988) 3 C.L.R. 2657, I said the following:
"The usefulness of the valuation submitted by the applicant, and which was for the first time brought to light in the course of the present proceedings, is as to whether in appreciating the facts of the case, the respondent Commissioner acted under any misconception of fact or law or in abuse of power, that is in circumstances in which this Court would be justified to interfere with his appreciation of the facts or the determination of the merits. Not being before the Respondent Commissioner when the sub judice decision was reached, it should otherwise be ignored as a review by the Court is confined to the evidence that was before the Respondent Commissioner at the time he reached the sub judice decision - vide Christofides v. Republic (1984) 3 C.L.R. 1454 at 1459-1460."
The aforesaid approach applies with equal force to the facts of the present case as the valuation that has been placed before me on behalf of the applicants was never before the respondent Commissioner. What has to be decided therefore is whether the decision of the respondent Commissioner was reasonably open to him on the basis of the valuation of Mr. Mateas, that being the only evidence before the respondent Commissioner at the material time as to the value of the land in question at the relevant dates. It has, however, to be examined in the light of the valuation produced on behalf of the applicant in order to see if there exists any of the aforementioned reasons justifying an interference of this Court with the appreciation of the facts of the case, guided in that respect by the general principles of administrative Law to which I have already referred hereinabove.
On the totality of the circumstances before me I am satisfied that the valuation of Mr. Mateas is duly supported by the material relied upon by him and properly reasoned. He gives a detailed account of the duly recognized method used and the comparable sales which were relied upon in arriving at the conclusion that he did and there has not been established either that there has been any misconception of fact or law or that such valuation gives rise to abuse or excess or power.
For all the above reasons the recourse fails and is hereby dismissed, and the sub judice decision is confirmed in whole. There will be, however, no order as to costs.
Recourse dismissed. No order as
to costs.