clr/1981/1981_1_703.pdf

(1981)Held, that under section 3

(1)the District Court could not have made the order concerned only on an application by a tax collector; that there was required, in any event, the production of a certificate under thehand oftheChief Revenue Officer to the effect that the tax in question was still due and 5 unpaid; that only after the production of such a certificate the applicant could have been summoned to appear before the District Court; that there has been made an order under section9without theprescribedprocedurehavingbeenfollowed; that, therefore, there exists, on the face of the proceedings, an 10 error of law vitiating the validity of the complained of order (see, interalia,R. v. Paddington Valuation Officer and Another, Ex Parte PeacheyPropertyCorporation Ltd. [1965] 2 All E.R. 836, 842); accordingly the order of certiorari applied for will be granted. 15 Application granted. Cases referred to: Rex v. NorthumberlandCompensationAppeal Tribunal. Ex parte Shaw [1952] 1 K.B. 338; R. v. SouthamptonJustices,Ex parte Green[1975] 2 All E.R. 20 1073; R. v.Paddington Valuation OfficerandAnother, ExpartePeachey PropertyCorporation, Ltd., [1965]2 All E.R. 836 at p.

1. Application. Application for an order of certiorari to remove into the 25 Supreme Court and quash the order of the District Court of Nicosia, dated 15th October, 1979 in tax Case No. 3959/
2. L. Papaphilippou with Chr. Christofides, for the applicant. G. Constantinou (Miss), Counsel of the Republic, for the respondent. Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment. In this case the applicant seeks an order of certiorari to quash the order of the District Court of Nicosia in tax case No. 3959/79, by means of which the applicant was ordered, on October 15, 35 1979, to pay C£3,989.375 mils on November 30, 1979, as arrears of income lax. The said order was made under the provisions of section 9 of the Tax Collection Law, 1962 (Law 31/62). 704 30 1 CL.R. ID re Roasias Co. Triantafyliides P. Subsections

(1)and

(2)of the said section 9 read as follows: 5 10 15 20 25 30 "9.-(l) 'Εάνπρόσωπονόφεϊλονοίονδήποτεφόρον παραλείψη νά καταβολή άπαντα τά Οπ* αύτοϋ οφειλόμενα ποσά όταν τοϋτο άπαιτηθη Crfro τοϋ φοροεισπράκτορος,τό Δικαστήριον δύναται, τη αΐτήσει τοΰ φοροεισπρακτορος καί τη προσα­ γωγή πιστοποιητικοΰ υπογεγραμμένου ύπό τοΰ Πρώτου Λειτουργού Προσόδων, βεβαιοϋντος ότι ποσόν τι οφείλεται καί παραμένει άπλήρωτον, ra καλέση τό'έν υπερημερία πρόσωπον ενώπιον του καΐ νά προβή els την διενέργειαν έρεύνης περί της καταστάσεως καΐ των μέσων διαβιώσεως τοΰ έν υπερημερία προσώπου, καί νά διατάϋη τό τοιούτο πρόσωπον όπως καταβάλη τό όφειλόμενον ποσόν όμοΰ μετά τών συνεπεία της υπερημερίας γενομένων έ£όδων καί τών άλλων όλων έΕόδων ών την καταβολήν ήθελε κρίνει εΰλογον, είτε παραχρήμα είτε διά δόσεων ώς τό Δικαστήριον ήθελεν καθορίσει.

(2)Ή αίτησις τοΰ φοροεισπράκτορος καί τό πιστοποιητικόν τοΰ Πρώτου Λειτουργού Προσόδων, ών μνεία γίνεται έν έδαφίω

(1), 6ά είναι έν τφ τύπω τ φ έκτεθειμένω έν τ φ Δευτέρω Παραρτήματι". (" 9

(1)If any person owing any tax fails to pay, when so requested by the tax collector, all amounts due by him, the Court may, on the application of a lax collector and upon the production of a certificate under the hand of the Chief Revenue Officer to the effect that any amount is still due and unpaid, summon the person in default before such Court and such Court shall proceed to make inquiry as to the circumstances and means of livelihood of the person in default and shall order such person to pay the sum due, together with any costs occasioned by his default, and such other costs as to the Court may seem fit, either forthwith or by instalments as the Court may direct. 35

(2)The tax collector's application and the Chief Revenue Officer's certificate referred to in subsection

(1)shall be in the form set out in the Second Schedule."). 40 It does not appear from the record of the ordei in question, which has been produced before me as exhibit A, whether the applicant, who was the respondent in the tax collection cass before the District Court,was present or absent, but itis common ground that he was absent. 705 TriutefyWde» P. ID η Rood» Co. OM1) It is not, however, common ground why he was absent: Counselfor therespondent,on thestrength of affidavit evidence filedin support of the opposition to the present application, contends that the applicant was notified of the proceedings of October 15, 1979, and that he was not present because he 5 had agreed to pay the arrears of income tax which were due by him, whereas the applicant, in his affidavit in support of the present application for an order of certiorari, appears to give a practically opposite version. I do not have to resolve the above issue of disputed facts, 10 because I will determine the fate of the present application on legal grounds: It is not disputed that exhibit A is the only Court record which was made in relation to the complained of order. There has not been traced, and there does not appear to exist in the 15 archives of the Registry of the District Court of Nicosia, a tax collector's applicationandtheChief Revenue Officer's certificate, which are envisaged by subsection

(2)of section 9 (and, see, too, the forms which are prescribed by the Second Schedule to Law 31/62). It is clear under section 9

(1)that the District Court could not have made the order concerned only on an application by a tax collector; there was required, in any event, theproduction of a certificate under the hand of the Chief Revenue Officer to the effect that the tax in question was still due and unpaid; 25 and only after the production of such a certificate the applicant could have been summonedto appear before theDistrictCourt. I am not at all concerned with the question of what are the records which exist in the relevant file of the Inland Revenue Office, because they cannot be regarded as constituting Court 30 records. I am, thus, faced with the situation that there has been made an order under section 9 without the prescribed procedure having been followed; and in order to discover whether such procedure has been followed I have looked at the whole of the 35 material before me, as I was entitled to do (see Rex v. North­ umberlandCompensationAppeal Tribunal. Ex parte Shaw, [1952] 1K.B. 338, which hasbeen considered in R. v.Southam­ pton Justices, ex parte Green, [1975]2 All E.R. 1073). 706 20 1 C.L.R. IDre Rousias Co. TrlantafyMdes P. In the circumstances of this case I find that there exists, on theface oftheproceedings, an error of lawvitiatingthevalidity of the complained of order, in the sense in which such an error has been explained in, interalia, R. v. Paddington Valuation 5 Officer and Another,Ex parte PeacheyProperty Corporation, Ltd., [1965) 2 All E.R. 836, 842. I, therefore, grant this order of certiorari applied for by the applicant, quashing thus the order made by the District Court of Nicosia as aforesaid. 10 The present order of certiorari does not, of course, prevent the appropriate authorities of the Republic from initiating, once again, action in accordance with the procedure under section 9of Law 31/62,for the recovery of any tax that may be due by the applicant. 15 In view of the particular circumstances of this case I am not prepared to make any order as to its costs. Application granted; no order as to costs. 707