1966 J u n e 20, 27 [TRIANTAFYLLIDES, J.] ANANIAS MAHDrSIAN unci THE RFPUHLW np C Y P R U S , THROUGH THE COMMISSIONER OF ΙΝΓΟΜΓ TAX IN THE MATTER OFARTICLE 146OF THE CONSTITUTION ANANIAS MAHDESIAN, Applicant. and THE REPUBLIC OFCYPRUS, THROUGH THE COMMISSIONER OFINCOME TAX, Respondent. (Case No. 148/65). Limitation of Actions—The Limitation of Actions {Suspension) Law 1964, {LawNo. 57 of 1964)—"Action ", "period of limitation ", " anyprovision of legislative nature "—Definition and meaning—Section 2 of the said Law—Provisions ofthe said Lawnotapplicable toproceedings taken underArticle 146 of the Constitution—Sec. also, herebelow. Constitutional Law—Administrative Law-Article 146 of the Constitution—Recourse thereunder—Time within which such recourse hasfobefiled :seventy-fivedaysetc. etc. -Article 146, paragraph 3of theConstitution—Not affected by theprovisions of the Limitations of Actions (Suspension) Law. 1964 {Law No. 57of 1964)—ThatLaw is notand could not beapplicable to proceedings under Article 146 of the Constitution. See, also, under Administratis Law, below. Administrative Law— Constitutional Law— Recourse under Article 146of theConstitution—Time withinwhichsuchrecourse has to be filed—Such period of time does not run wherethe person concerned is prevented bv "force majeure " from making such a recourse for annulment. force Majeure- -See immediately above. Constitutional Law-"Act of necessity"—Conceivably, a mere Law cannot alter the provisions of the Constitution or interfere therewith, otherwise than as a measure of necessity. By this recourse the applicant challenges, inter alia, the validity of certain assessments of income tax raised on the 21st December. 1963. It is notdisputed that theapplicant came to know of the assessments in question more than seventy-five days before he filed the present recourse and that such recourse hastobefiled within a period of seventyfive days, as provided by Article 146,paragraph 3, of the 630 Constitution. But counsel for the applicant has submitted that this period within which a recourse has to be filed, stands suspended as from the 21st December, 1963 until such date as may be fixed in future, under the provisions of the Limitation of Actions (Suspension) Law, 1964 (Law No. 57 of 1964). ~~ The learned justice in rejecting this submission made by counsel for the applicant :— Held, (i) having perused the contents of Law No. 57 of 1964 (supra), including its long title and the definition of "action" in section 2 thereof, as well as the definition of "period of limitation" in the same section, I have reached the conclusion that it was not, and could not have been, intended to apply to proceedings under Article 146 of the Constitution. It is clear, that it was intended to apply to civil proceedings only, not including proceedings of the special revisional jurisdiction created by Article 146.
(2)I quite agree that the Constitution is, indeed, part of the legislation in force in a country, but I cannot accept that the expression " any provision of a legislative nature " in the definition " period of limitation ", in section 2 of the said Law 57/64, can be interpreted so as to include Article 146 of the Constitution ; in the first place it would be, normally. unconstitutional to interfere with the provisions of Article 146 by a mere Law : but even if this could be done by such Law as a measure of necessity, I would have required an express intention to suspend indefinitely the running of the period under Article 146, paragraph 3, as a measure of necessity, before proceeding to treat the provision of Law 57/64 (supra) as affecting the provisions of Article
- paragraph
- Order in terms. Per curiam : It may be recalled that it is well settled in Administrative Law that a period such as the one prescribed by Article
- paragraph 3 of the Constitution, does not run in a case where the person concerned is prevented by " force majeure " from making a recourse for annulment. Recourse. Recourse against income tax assessment raised on Applicant for the years of assessment 1957-
- A. Triantafyllides, for the Applicant. M. Spanos, Counsel of the Republic, with Chr. Paschalides, for the Respondent. Cur. adv. vult. 631 1966 June 20.27 ANANIAS MAHDESIAN and THE REPUBLIC or CYPRUS, THROUGH THE COMMISSIONER OP INCOME TAX 1966 June 20.27 ANANIAS MAHDESIAN and T H E REPUBLIC or CYPRUS. THROUGH THB COMMISSIONER OF INCOME T A X The following Decision was delivered by:TRIANTAFYLLIDES. J.: On the 19th February, 1966, it was directed that the preliminary legal issues raised by the Opposition in this Case should be heard first. Such issues are those raised by paragraphs 3 and 4 of the grounds of law in the Opposition; the remaining grounds of law in the Opposition are issues going to the merits of the recourse. At the hearing before this Court on the 20th June. 1966, counsel for Applicant conceded that claim (d) in the motion for relief, relating to the steps taken for collection of the income tax involved, is a claim which cannot properly be made under Article 146, in that such steps are not of an executory nature, but only acts of execution, and, therefore. such claim (d) is dismissed accordingly as not well-founded. Likewise counsel for Respondent do not appear to seriously dispute that claims (a)and (b) in the motion for relief, relating to the refusal of Respondent to accept and consider the objections made by Applicant against the assessments in relation to the years of assessment 1957-1960—as such refusal is set out in the letter dated 9th August, 1965 (exhibit I)— are within time, in view of the fact that this recourse was filed on the 18th August.
- There remains to bedecided whether claim (c)of the motion for relief, challenging directly the validity of the said assessments. which were raised on the 21st December.
- is out of time, in view of the fact that more than a year and a half elapsed since then and until the filing of the present recourse; such a recourse has to be filed within a period of seventy-five days, as provided for by Article 146
(3)of the Constitution. It is not disputed that Applicant came to know of the assessments in question -•^"••e than seventy-five days before he filed the present recourse. But counsel for Applicant has submitted that under the provisions of the Limitation of Actions (Suspension) Law, 1964. (Law 57/64). the period laid down by virtue of Article 146
(3).within which this recoursehad tobe filed, stands suspended asfrom the 21st December, 1963 and until such date as may be fixed in future, under the provisions of Law 57/64, by the Council of Ministers. Having perused the contents of Law 57/
- including its long title and the definition of "action" in section 2 thereof, as well as the definition of "period of limitation" in the same section. I have reached the conclusion that it was not. and 632 could not have been, intended to apply to proceedings under Article
- It is clear, in my view, that it was intended to apply to civil proceedings only, notincluding proceedings ofthe special revisional jurisdiction created by Article
- I quite agree that the Constitution is, indeed, part ofthe legislation in force in a country, but I cannot accept that the expression "any provision of a legislative nature" inthe definition of "period of limitation", in section 2 of Law 57/64, can be interpreted so as to include Article 146:in the first place, it would be. normally, unconstitutional to interfere with the provisions of Article 146by a mere law such as Law 57/64; but even if this could be done by such Law as a measure of necessity, I would have required that there should have appeared in the said Law an express intention to suspend indefinitely 'the running of the period under Article 146
(3),asameasureofnecessity, before proceeding to treat the provisions of Law 57/64 as affecting the provisions of Article 146
(3). It maybe recalled that it is well-settled in Administrative Law (see Conclusions from the Jurisprudence of the Greek Council of State 1929-1959) that a period, such as theone prescribed by Article 146
(3), does not run in a case where the person concerned is prevented by "force majeure" from making a recourse for annulment. No such allegation has. however, been put forward by Applicant in this Case, to theeffect that "force majeure" prevented him,inthis particular case, from filing this recourse earlier, and he relies only on the generic effect of the provisions of Law 57/64. which as already found, are not applicable to the period prescribed under Article 146
(3). In the circumstances 1hold that claim (
- c)in the motion for relief in this recourse is out of time and it is dismissed accordingly. The hearing of this recourse will proceed with regard to claims (
- a)and (
- b)in the motion for relief. I have to make it clear that should in the course of such hearing appear that the administrative process, of making the assessments in question against Applicant, hasnotbeen finally concluded, and that there areanyfurther steps to be taken in the matter by Respondent, then, of course, the dismissal as above of claim (c)will notamount toa resjudicata, barring a recourse against thesaid assessments asthey maybeeventually made. Orderinterms. 633 1966 June 20, 27 ANANIAS MAHDESIAN and T H E REPUBLIC OF C Y P R U S . THROUGH THE COMMISSIONER or INCOME T A X