(1989)19S9April 27 [A. LOIZOY, P.] INTHE MATTER OF ARTICLE 146OFTHE CONSTITUTION THEKLA PROTOPAPA -THROUGH HER REPRESENTATIVE STEPHANOS PROTOPAPA, Applicant, v. THE REPUBLIC OF CYPRUS,THROUGH THE COMMISSIONER OF INCOMETAX, Respondent. (CaseNo.13/36) Judicial control — Factual elements forming basis of decision — Appreciation of, by Administration — Interference by Court — Principlesapplicable—Assessment of value oflandfor thepurposesof the Capitai Gains Tax Law — Usefulness of evaluation made by applicant, but not before the Administration, whensubjudice decision 5 reached — It is restricted to show whether the Administration acted under any misconception of fact or Law or in abuse of power, but otherwise, not being before therespondents, it shouldbe ignored— A review by the Court is confined to the evidence that was before the respondent Commissioner. In this case the applicant impugns the decision whereby the respondent Commissioner imposed Capital Gains Tax on him. The respondent acted on the basis of evaluation of the principal Assessor in the Department of Inland Revenue. Areport prepared on behalf of the 15 applicant by a valuer in private practice was not before the Commissioner, when he took the sub judice decision. The principle, applied by the Court, sufficiently appears in thehereinabove Hcadnote. Having reached the conclusion that the decision complained of was reasonably open to the respondent, the Court dismissed therecourse. 20 Recoursedismissed. No orderasto costs. 528 10 3C.L.R. Protopapa v.Republic Casereferredto: leronymides v.Republic (I9SS) 3C.L.R. 2657. 5 Recourse. Recourse against thecapitalgains tax assessments relatingto the disposal by the applicant in respect of her property at Strovolos. 10 St.leronymides,for the Applicant. Y. Lazarou, Counsel of theRepublic B, for the Respondent. 15 Cur.adv.vult. A. LOIZOU,P.readthefollowing judgment.Thisrecourseis against thecapital gains tax assessments relating to the disposal by the applicant on the24th September 1980 of 1/2 andon the 20 29th September 1980 of 1/4 of herproperty at Strovolos under Registration No. H.334 Sheet/Plan 30/13 Ε 1, Plot 368 of an area of four donums,oneevlek and700 sq. feet. The applicant who was the owner of a field at Ayios 25 Vassilios, Strovolos, exchanged on the 24th September 1980, one half of the property with her sister Evgenia Stephanou Protopapa and her brother Athanassios Protopapas in consideration of another property owned by her sister and brother. Subsequently on the 29th September 1980, the 30 applicant exchanged one quarter of her remaining half share in the above property to Kypriani Constantinouin consideration of another property owned by her mother. As the applicant failed tosubmit adeclarationof disposal of immovable property as provided by Section 12 of the Capital GainsTax Law, 1980, 35 (Law No. 52 of 1980) hereinafter to be referred to as the Law, the respondent on the 22nd February 1985 raised on the applicant assessments imposing capital gains tax (Appendices "A" and"B"),against which she objected (Appendix"C"). 40 On the 28th June 1985, the respondent for the sake of settlement reachedaprovisional agreement with theapplicant's representative StephanosProtopapasonthevalue of thepartof 529 A.Loizou,P. Protopapa v.Republic
(1989)theproperty disposed whichwasnowcomputedtobe£25,800 asat27th June 1976,and£32,250asat 29th September 1980. On1 the 23rd October 1985, the applicant's representative informed the respondent that the revised valuation was unacceptableandthatinhisopinionthevalueofthepropertyas 5 at27thJune 1978,wasthesameasatthedateofthedisposition. On the 4th September 1985, the respondent determined under Section 18of the Lawthe objection of the applicant by maintaining his original assessments and communicated his 10 decision forthwith to applicant's representative together with therelevantNoticesofCapitalGainsTaxPayable(Appendices, "D"," F \"F"). Asagainst these assessments the applicant filed her present 15 recourse by which she claims that the subjudice assessment is contrary to the Law and/or unlawful andwrong and/or lower from the real market-price of the said property, as it was manifestly higher and in fact £32,250 on the 27th June 1978, thanthevalue assessedtobe£25,800bytherespondents ason 20 thatdate. In support of her contentions the applicant has filed an affidavit byMr.Th.leronymides,anexpertvaluer,aChartered Surveyor MemberoftheRoyalInstituteofSurveyors ofGreat 25 Britain,whowasfrom 1968to1980DirectoroftheDepartment of LandsandSurveysandsincethenisengaged.invaluationsof immovable property. As against this valuation therespondent Commissioner has 30 filedanaffidavit by Mr.Gregoris Mateas,PrincipalAssessorin the Department of Inland Revenue, a qualified assessor and valuer,andMemberoftheIncorporated SocietyofValuersand Auctioneers,whodidalsotheoriginalvaluationuponwhichthe subjudicedecision wasbased. 35 The question that arises isnot one as to which of the two valuations this Court prefers, but as to the extent of the jurisdiction of the Court to interfere with the appreciation by theadministration offactual elementsandofthematerialinthe 40 file whichisnotsubject tojudicialcontrolsolongastheredoes notexistamisconception offactorlaworabuseofpower,nor 530 3C.L.R. Protopapa v.Republic A.Loizou, P. issubjecttojudicialcontroltheappreciation oftheweightofthe real facts constituting the reasoning. In the case of Athinoulla leronymides v. The Republic 5
(1988)3C.L.R.2657,1saidthe following: 10 15 20 "The usefulness of the valuation submitted by the applicant, andwhichwasfor thefirst timebrought to lightin the course of the present proceedings, is as to whether in appreciating the facts of the case, the respondent Commissioner acted under anymisconception of fact orlaw or in abuse of power, that is in circumstances in which this Court wouldbejustified to interfere withhisappreciation of thefactsorthedetermination ofthemerits. Notbeing before theRespondent Commissioner when the subjudice decision was reached, it should otherwise be ignored as a review by the Court is confined to the evidence that was before the Respondent Commissioner at the time he reached the subjudice decision - vide Christofides v. Republic
(1984)3 C.L.R. 1454at 1459-1460." The aforesaid approach applies with equal force to the facts of the present case asthevaluation that hasbeen placed before meon behalf oftheapplicants wasneverbefore the respondent 25 Commissioner. Whathastobedecidedtherefore iswhetherthe decision of the respondent Commissioner wasreasonably open to him on the basis of the valuation of Mr. Mateas,that being the only evidence before the respondent Commissioner at the material time as to the value of the land in question at the 30 relevant dates. It has,however, to be examined in the light of thevaluation producedonbehalf oftheapplicant inordertosee if there exists any of the aforementioned reasons justifying an interference of this Court with the appreciation of the facts of the case, guided in that respect by the general principles of 35 administrative Law to which I have already referred hereinabove. On thetotality ofthecircumstancesbefore me Iam satisfied that the valuation of Mr. Mateas is duly supported by the 40 materialrelieduponbyhim andproperly reasoned. Hegives a detailed account of the duly recognized method used and the comparable sales which were relied upon in arriving at the 531 A. Loizou, P. Protopapa v.Republic
(1989)conclusion that he did and there hasnot been established either that therehasbeenanymisconception offact orlaworthatsuch valuation givesriseto abuse orexcess or power. For all the above reasons the recourse fails and is hereby 5 dismissed, and the sub judice decision is confirmed in whole. There will be,however, no order asto costs. Recourse dismissed. No orderas to costs. 10 532