3C.L.R. *.936March 28 [TKIANTAFYLLIDES, Ρ) INTHE MATTER

ARTICLE 146

THE CONSTITUTION HOLY BISHOPRIC

PAPHOS, Applicant, ν THE REPUBLIC

CYPRUS, THROUGH 1 THE MINISTER

FINANCE, 2 THE COMMISSIONER

INCOME TAX, Respondents (Case No 106/85) 5 Constitutionallaw—Right toproperty— Constitution, An 23 7andArt 23 9— Property belonging to anySee — TheSee cannot be depnved

money withoutitsconsent,even forthepurpose

levying execution inrespect

a tax — Money, which ought to have been refunded to the See by the Commissioner

Income Tax, retained and set

f against alleged indebtedness

theSee forspecialcontnbution — Suchset

f violatesArt 23 9 Legitimate interest — Assessment

income taxoperating to the benefti

the applicant—Applicantdoes notpossessalegitimateinteresttochallengeit 1 0 Income tax— Absence

liabilityto pay income tax for a particular year — Assessment crediting totheapplicantcertainsumscollectedatsourcedunng suchyear—As applicantwasnotliabletopayanyincome tax, itwasnot open totheCommissioner toraisesuch assessment 15 TheapplicantisoneoftheSeesoftheGreek-OrthodoxChurch

Cyprus In 1984itbecame entitledtogrossdividendsfromtheHellenicBankLtd and the Cyprus Popular Bank amounting toC£4,852 32,whichwere paid toit after a deduction atsourceofC£2062 25asincometax Itiscommon groundthattheapplicantdidnothavetopayanyincometax inrespect

thesaiddividends 20 On 21 December 1984 respondent 2 raisedan assessmentwhichstated thattheaforementioned amountofC£2,062 25wascreditedtotheapplicant 1371 HolyBiehopripPaphosv. Republic

the amount

C£206225 but eventually respondent 2 refused to refund it and on 21 December 1984 decided tosetitoffagainst special contribution pavable bythe applicantfor rents received byitfrom 1974to 1983 Hence this recourse challenging the saidassessment otincome taxaswell as the decision to appropnate the said amount against the said special contributions Held, annulling thesubjudice decision

paragraph

Article 23o

f the Constitution there emerge» clearly that the applicant could not be depnved

money which ismovable property without itswritten consent and that inviewofthe provisions

paragraph

Article 23

such depnvation could not take place without thewntten consent

theapplicant, evenforthepurpose

levying execution inrespectofataxbywayofspecial contnbution 5 10 15 Subjudice decision annulled No order asto cots Recourse. 20 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 tothe applicant G Tnantafylhdes, for the applicant Υ Lazarou, for the respondents 25 Cur adv vult TRIANTAFYLLIDESΡ read thefollowingjudgment By means

the present recourse the applicant challenges the refusal

respondent 2 -who comes under respondent 1 -to return tothe applicant an amount

C£2062 25 cent,which was deducted as 30 income tax at source from company dividends paid to the applicant, and to appropnate the said sum against special contnbution allegedlydue and payable by theapplicant The applicant challenges, also, by way

ancillary relief, a notice

incometax assessment (No 84/85/01/010)inrespect

1372 35 3C.L.R. HolyBishoprip Paphosv.Republic Triantafyllide* P. the year

assessment 1984 which was raised in circumstances referred to hereinafter. Theapplicant isoneoftheSeesoftheGreek-Orthodox Church

Cyprusand derivesincomefrom, interalia,rentsand dividends 5

companies. In 1984 itbecame entitled togrossdividendsfrom 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£2062.25asincome tax. 10 itiscommon ground that the applicant didnot have topay any income taxinrespect

the said dividends. On 21 December 1984 respondent 2 raised an assessment which stated that the aforementioned amount

C£2,062.25 which wasdeducted atsourceasincometaxfrom thedividendsof 15 the applicant wascredited to the applicant. The applicant objected on 25 January 1985 to the assessment inquestion onthegroundthatsinceitwasnotliabletopayincome taxsuch assessment should not have been raised atall. The applicant requested the refund

the amount

20 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 bytheapplicant forrentsreceived byitfrom 1974to1983. Iam

the view that inasmuch as the applicant was exempted 25 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£2062.25which had been deducted asincometaxfrom theamount

dividendsdueto 30 the applicant. As, however, the challenged by the applicant assessmentoperatedtothebenefit,andnottothedetrimentofany legitimateinterest,

theapplicantIdonotthinkthattheapplicant was entitled, under Article 146

the Constitution, tofilethe present recourse against such assessment and, consequently, to 35 thisextent thisrecourse hastobe dismissed. Regarding, next, the refusal by respondent 2 to refund to the applicanttheamount

C£2,062.25counsel fortheapplicant has submittedthatrespondent2wasboundtorefund thesaidamount 1373 TvUntafyUldea p . HolyBlehopripPapho» v.Republic

theAssessmentand Collection

Taxes Law, 1978(Law4/78) and that,inany event, 5 respondent2wasentitledundertheequitabledoctrineofsetoffto appropriate theamount

C£2,062.25totheindebtednessof the applicant forspecial contribution. It is useful to refer, at this stage, to paragraphs

Article23

the Constitution, which read asfollows: 10 «7.Nothing inparagraphs 3 and 4

thisArticle contained shall affect the provisionsof any lawmade for thepurposeof levying execution in respect

any tax or penalty, executing any judgment, enforcing any contractual obligation orfor the prevention

danger tolife 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 overitorinterestthereinshallbemade exceptwiththewritten consent

the appropriate ecclesiastical authority being in control

such property and the provisions

paragraphs3, 4, 7 and 8

this Article shall be subject to the provisionsof this paragraph: Provided that restrictions or limitations for the purposes

townand countryplanningundertheprovisionsofparagraph 3

this Article are exempted from the provisions

this paragraph.» Fromtheprovisionsofparagraph

Article23thereemerges 30 clearlythat the applicant could not be deprived

money, which ismovable property, without itswritten consent and that, inview

the provisions

paragraph

Article23,such deprivation could nottakeplace,withoutthewritten consentofthe applicant, even for the purpose

levying execution in respect

a tax by 35 wayofspecial contribution. It follows, therefore, that in the circumstances

the present caserespondent 2could notinvokeeithersection38

Law4/ 1374 20 25 3C.L.R. HolyBishopripPaphosv.Republlc TriantafyUides P. 78 or the equitable principleof set

f ina 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. 5 Inthe resulttnesubjudicerefusal

respondent 2torefund the said amount tothe applicant hastobe annulled. Inthelightoftheparticularfactsofthiscase Ishallnotmakeany orderastoitscosts. Subjudice decision annulled.No order astocosts. 10 1375