(1983) 1982 May 29 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION THE CYPRUS TELECOMMUNICATIONS AUTHORITY, Applicant. v. THE REPUBLIC OF CYPRUS, THROUGH 1. THE MINISTER OF FINA
Article 146
.4 of the Constitution; that as a recourse under Article 146 is not determined onthe basis oftheadversary procedural system applicable tocivilcases,which doesleavetothepartiesquitealot ofcontrol over the course of the proceedings, but it is determined on the basis of the inquisitorial procedural system which vests full control of the process in the administrative judge, the proper exercise
Article 146
.4 of the Constitution presupposes that in every recourse the applicant should place before the Court allthe grounds of law and of fact onwhichheallegesthatthesubject-matter oftherecourseshould be annulled; that it is, therefore, directed that Counsel for the applicant should file in Court and deliver to Counsel for the respondents copies of the aforementioned accounts and then, subject to any directions that may have to begiven bythe Court in the light of the contents of such accounts, the hearing of this case will continue. 25 Order accordingly. Cases referred to: Republic v. Georghiades
(1972)3 C.L.R.
- Recourse. Recourse against the decision of the respondents to require 30 the applicant to pay income tax in respect of the year of assessment
- 35 A. Hadjiloannou with C. Hadjiloannou, for the applicant. A. Evangelou, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. TRIANTAFYLLIDES P. read the following interim decision. By means of the present recourse under Article 146 of the Article 146.4 is quoted at p. 1353 post. 1351 Triantafyllides P. CY.T.A. v. Republic
(1983)Constitution the applicant Cyprus Telecommunications Authority is seeking the annulment of the decision of the respondent Commissioner of Income Tax to require the applicant to pay income tax in respect of the year of assessment 1978. The relevant decision is set out in a letter dated January 10, 5 1981, and is embodied, also, in a consequentially raised income tax assessment. The grounds on which the applicant bases its recourse may be summarized asfollows: First, that the applicant isa public corporation exercising a function of Government as an agent 10 of the Government of the Republic and is not, therefore, liable to pay income tax; secondly, that the applicant is not a person within the ambit of section 2 and section 5
(1)of the income tax legislation; thirdly, that the applicant does not carry a trade within the meaning of the said section 5
(1), especially as \s the applicant is precluded by section 19 of the Telecommunications Law, Cap. 302,from making a profit in the sense of such section 5
(1); and, fourthly, that the applicant did not make a profit as is alleged by the respondent Commissioner of Income Tax and, therefore, the assessment in question is 20 factually wrong. Counsel for the applicant has,initially,fileda written address at the end of which it is stated that the aforesaid assessment is arbitrary and misconceived and it isadded that thiswillbecome evident when the relevant accounts of the applicant are 25 produced. Subsequently, however, counsel for the applicant withdrew, for the time being, that part of his written address by which it was contended that the assessment concerned is arbitrary and misconceived and stated that he is confining his written address to only the legal issues which have been 30 expounded therein. Thereafter the remaining written addresses of counsel for the partiesdid not deal at all withthequestion of the allegation of counsel for the applicant that the assessment concerned is factually wrong. The aforesaid allegation of counsel for the applicant, though it was withdrawn for the time being from his written address, was not withdrawn, also, as one of the grounds set out in the 1352 35 3 C.L.R. CY.T.A.v. Republic Triantafyllides P. Application in support of the present recourse of the applicant; and, so, the applicant remains free to revert to such allegation at a later stage of the proceedings in this case. Thus, there has arisen a situation in which this Court is, in 5 effect, called upon by the parties to this case to pronounce on issues of law which if the income tax assessment in question is, eventually, found to be factually wrong do not have to be decided at all on this particular occasion. In my opinion the powers of this Court, in dealing with a 10 recourse under Article 146 of the Constitution, are those which are clearly defined in paragraph
(4)of such Article, which reads as follows: "4. Upon such a recourse the Court may, by its decision15 (
- a)confirm, either in whole or in pait, such decision or act or omission; or (
- b)declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever; or 20 (
- c)declare that such omission, either in whole or in part • ought not to have been made and that whatever has been omitted should have been performed". The proceedings in'a recourse cannot be transformed even with the consent, or at the request, of counsel into an action for a declaration regarding the legal rights of the parties irrespective of whether or not the determination of such rights is really 25 essential for the exercise
Article 146.4 of the Constitution.
It must not be lost sight of that a recourse under Article 146 is not determined on the basis of the adversary procedural system applicable to civil cases, which does leave lo the parties 30 quite a lot of control over the course of the proceedings, but it is determined on the basis of the inquisitorial procedural system which vests full control of ihe process in the administrative judge; and, thus, in my view, the proper exercise
Article 146
.4 of the 35 Constitution presupposes that in every recourse the applicant should place before the Court all the grounds of law and of fact on which he alleges that the subject-matter of the recourse 1353 Triantafyllides P. CY.T.A. v. Republic
(1983)should beannulled and leave it to the Court to decide which issueorissuesneed to bedetermined inrelation tothe outcome of the recourse, andofwhich issue or issues thedetermination has become superfluous in view of such outcome (see, in this respect, inter alia, TheRepublic v. Georghiades,
(1972)3C.L.R. 594). 5 Moreover, thepresent case is nota case in which any one of the legal issues which have been raised bycounsel forthe applicant can bedecided nowin theabstract in a manner in which is could result in the final determination of this case, 10 because at thepresent stage of the proceedings thepossibility cannot be safely excluded that the relevant accounts ofthe applicant, which were to be produced by counsel for the applicant in support ofhis assertion that thesubjudicc assessment is arbitrary andmisconceived, will not,when produced, 15 reveal factors which maysomehow affect thefooting and the framework on the basis of which the legal issues which have been raised bycounsel for the applicant are tobefinallydetermined. I, therefore, direct that counsel for theapplicant should file 20 in Court and deliver to counsel for therespondents copiesof the aforementioned accountsand then, subject toany directions (hat mayhave to be given by the Court in the light ofthe contentsofsuch accounts, thehearingofthiscasewillcontinue. Order accordingly. 1354 25