ARTICLE 146
THE CONSTITUTION HOLY BISHOPRIC
PAPHOS, Applicant, v. THE REPUBLIC
CYPRUS, THROUGH 1. THE MINISTER
FINANCE, 2. THE COMMISSIONER
INCOME TAX, Respondents. (Case No. 106/85). Constitutional law - Right to property - Constitution, Art. 23.7 and Art. 23.9- Property belonging to any See - The See cannot be deprived
money without its consent, even for the purpose
levying execution in respect
a tax - Money, which ought to have been refunded to the See by the Commissioner
Income Tax, retained and set
f against alleged indebtedness
the See for special contribution - Such set
f violates Art. 23.9. Legitimate interest - Assessment
income tax operating to the benefit
the applicant- Applicant does not possess a legitimate interest to challenge it. Income tax - Absence
liability to pay income tax for a particular year - Assessment crediting to the applicant certain sums collected at source during such year-As applicant was not liable to pay any income tax, it was not open to the Commissioner to raise such assessment. The applicant is one
the Sees
the Greek-Orthodox Church
Cyprus. In 1984 it became entitled to gross dividends from the Hellenic Bank Ltd. and the Cyprus Popular Bank amounting to C£4,852.32, which were paid to it after a deduction at source
C£2062.25 as income tax. It is common ground that the applicant did not have to pay any income tax in respect
the said dividends. On 21 December 1984 respondent 2 raised an assessment which stated that the aforementioned amount
C£2,062.25 was credited to the applicant. The applicant requested the refund
the amount
C£2,062.25 but eventually respondent 2 refused to refund it and on 21 December 1984 decided to set it
f against special contribution payable by the applicant for rents received by it from 1974 to 1983. Hence this recourse, challenging the said assessment
income tax as well as the decision to appropriate the said amount against the said special contributions. Held, annulling the sub judice decision:
the applicant, latter does not possess a legitimate interest to challenge it.
paragraph
the Constitution there emerges clearly that the applicant could not be deprived
money, which is movable property, without its written consent and that in view
the provisions
paragraph
, such deprivation could not take place, without the written consent
the applicant, even for the purpose
levying execution in respect
a tax by way
special contribution. Sub judice decision annulled. No order as to cots. Recourse. Recourse against the refusal
the respondents to return to applicant an amount
£2062.25 cent which was deducted as income tax from company dividends paid to the applicant. G. Triantafyiides, for the applicant. Y Lazarou, for the respondents. Cur. Adv. vult. TRIANTAFYLLIDES P. read the following judgment. By means
the present recourse the applicant challenges the refusal
respondent 2 who comes under respondent 1 - to return to the applicant an amount
C£2062.25 cent, which was deducted as income tax at source from company dividends paid to the applicant, and to appropriate the said sum against special contribution allegedly due and payable by the applicant. The applicant, challenges, also, by way
ancillary relief, a notice
income tax assessment (No. 84/85/01/010) in respect
the year
assessment 1984 which was raised in circumstances referred to hereinafter. The applicant is one
the Sees
the Greek-Orthodox Church
Cyprus and dives income from, inter alia, rents and dividends
companies. In 1984 it became entitled to gross dividends from the Hellenic Bank Ltd. and the Cyprus Popular Bank amounting to C£4,852.32 which were paid to it after a deduction at source
C£2062.25 as income tax. It is common ground that the applicant did not have to pay any income tax in respect
the said dividends. On 21 December 1984 respondent 2 raised an assessment which stated that the aforementioned amount
C£2,062.25 which was deducted at source as income tax from the dividends
the applicant was credited to the applicant. The applicant objected on 25 January 1985 to the assessment in question on the ground that since it was not liable to pay income tax such assessment should not have been raised at all. The applicant requested the refund
the amount
C£2062.25 but eventually respondent 2 refused to refund it and on 21 December 1984 decided to set it
f against special contribution payable by the applicant for rents received by it from 1974 to 1983. I am
the view that inasmuch as the applicant was exempted from paying income tax it was not, strictly speaking, open to respondent 2 to treat the applicant as a taxpayer by raising the assessment dated 21 December 1984, even for the purpose
crediting the applicant with the amount
C£2062.25 which had been deducted as income tax from the amount
dividends due to the applicant. As, however, the challenged by the applicant assessment operated to the benefit, and not to the detriment
any legitimate interest,
the applicant I do not think that the applicant was entitled, under Article 146
the Constitution, to file the present recourse against such assessment and, consequently, to this extent this recourse has to be dismissed. Regarding, next, the refusal by respondent 2 to refund to the applicant the amount
C£2,062.25 counsel for the applicant has submitted that respondent 2 was bound to refund the said amount and was not entitled to set it
f against any alleged liability
the applicant for special contribution. On the other hand counsel for the respondents submitted that the right to set
f is implied in section 38
the Assessment and Collection
Taxes Law, 1978 (Law 4/78) and that, in any event, respondent 2 was entitled under the equitable doctrine
set
f to appropriate the amount
C£2,062.25 to the indebtedness
the applicant for special contribution. It is useful to refer, at this stage, to paragraphs
the Constitution, which read as follows: «7. Nothing in paragraphs 3 and 4
this Article contained shall affect the provisions
any law made for the purpose
levying execution in respect
any tax or penalty, executing any judgment, enforcing any contractual obligation or for the prevention
danger to life or property. «9. Notwithstanding anything contained in this Article no deprivation, restriction or limitation
the right provided in paragraph 1
this Article in respect
any movable or immovable property belonging to any See, monastery, church or any other ecclesiastical corporation or any right over it or interest therein shall be made except with the written consent
the appropriate ecclesiastical authority being in control
such property and the provisions
paragraphs 3, 4, 7 and 8
this Article shall be subject to the provisions
this paragraph: Provided that restrictions or limitations for the purposes
town and country planning under the provisions
paragraph 3
this Article are exempted from the provisions
this paragraph.» From the provisions
paragraph
there emerges clearly that the applicant could not be deprived
money, which is movable property, without its written consent and that, in view
the provisions
paragraph
, such deprivation could not take place, without the written consent
the applicant, even for the purpose
levying execution in respect
a. tax by way
special contribution. It follows, therefore, that in the circumstances
the present case respondent 2 could not invoke either section 38
Law 4/ 78 or the equitable principle
set
f in a manner enabling him, even indirectly, to levy execution against the applicant by appropriating the aforementioned amount
C£2,062.25 to the alleged indebtedness
the applicant for special contribution. In the result the sub judice refusal
respondent 2 to refund the said amount to the applicant has to be annulled. In the light
the particular facts
this case I shall not make any order as to its costs. Sub judice decision annulled. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
Επεξήγηση AI βάσει του επίσημου κειμένου του νόμου. Ενδεικτική, δεν υποκαθιστά νομική συμβουλή.