clr/1989/1989_3A_757.pdf

(1989)Hcadnotcs.theCourt decided thatsuchamisdirection cannot affect the legalityof thesubjudiceact. Further, having reached the conclusion that in the present casethe appreciation of the facts in question had been reasonably open to the 5 respondent Director, theCourt dismissedtheappeal. Appealdismissed.Noorderastocosts. Casesreferredto: 10 Republicv. HadjiPanteli(19S9)3C.LR. 961. Republic v.Vassiliadcs

(1967)3C.I..R. S2, 15 Pikis v. Republic

(1968)3C.LR. 303, Constantinides v. Republic

(1969)3C.LR.523. Papadopoullos v. Republic

(1970)3C.LR. 169. 20 Republic v. Pcricleous

(1972)3C.LR. 63, Charahimbous v. Republic(I9S9)3C.LR.

1. 25 Georghiades v. Republic(I9S2)3C.LR.
2. Protopapn v. Republic

(1989)3C.LR. 52S. Icronymidesv. Republic(19SS)3C.LR.

1. 30 Chnstol'idcs v. Republic(19S4) 3C.LR.
2. Appeal. 35 Appeal against thejudgment ofaJudge ofthe Supreme Court of Cyprus (Pikis. J.) given on the 22nd September, 1986 (Revisional Jurisdiction Case No. 454/85) Reported in

(1986)3 C.L.R. 1S3S, whereby appellants' recourse against the capital gains tax imposed on them for the sale of their land at Pyrgos 40 was dismissed. 758 3 C.L.R. Apostolou &Others v.Republic &Another Chr. Pourgourides. for the Appellants. A. Evangelou. Senior Counsel of the Republic, for the Respondents. 5 Cur. adv. vuh. A. LOIZOU, P. read the following judgment of the Court. This isan appeal from thejudgment of aJudge of this Court by 10 which he dismissed the recourse of the appellants with which they challenged the decision of the Director of Inland Revenue Department, hereinafter to be referred to as the respondent Director, dated the 31st January 1985.regarding the evaluation of thesubject propertv asat 27th June 1978. 15 According to the appellants' contention the value of the subject property was thirty-thousand pounds per donum, whereas according to the respondents it was twelve thousand pounds per donum. 20 Upon his own assessment of the value the respondent Director acted and made capital gains assessments with aviewto enabling him to ascertain thecapital gainstax payable. 25 The subject property which isof an extent of seven donums situated at Pyrghos village outside Limassol town and not far from the sea isjointly owned in equal shares by the appellants whosoldsameonthe 14thNovember 19S1for two-hundredand ten thousand pounds.Thereupon they submitted a return under 30 the Capital Gains Tax Law 1980 (law No. 52 of 1980) and includedtherein an assessment of its value asbeing on the 27th June 1978, one-hundred and eighty thousand pounds. This estimated valueoftheproperty on thesaiddatewasrejected by the respondent Director after an evaluation made by Mr. 35 Mateas. a Principal Assessor in the Department of Inland Revenue, a qualified assessor and Valuer who valued the propertyinJune 1.978,asbeingworthonlyeighty-four thousand pounds thus leaving a taxable profit of thirty-five thousand pounds in the hands of each appellant. The assessment raised 40 required each appellant to pay£7.400Capital GainsTax. The learned trial Judge, who had before him all the material 759 Λ. Loizou, P. Apostolou and Others v. Republic &Another

(1989)and also heard evidence from experts, both an architect and a dealer in land, who is a retired Land Clerk and ex officer of the Town Planning Department,concluded that "it was reasonably open totherespondents toraise thesubjudice assessment". He. further concluded that"an adequate inquiry was conductedinto 5 the facts relevant to the value of the land, theoutcome of which supported theconclusion reached by the respondents". Regarding the complaint of the appellants about discrimination which was based on theground that the valuer of 10 the respondent Director "excluded from his sample of comparison sales of property that were apt to shed light tothe value of the subject property, in particular the properties used for comparison by the valuers of the applicants", the learned trial Judge found that "those properties were dissimilar to the 15 property of the applicants in two materia! respects, namely (a) they fronted the seashore, a factor that greatly enhances the value of land, and (b). they had access to a road, whereas the subject property had none. Theacquisition of such right would not be free from comparison". 20 After finding as above the learned trial Judge proceeded to hold "that the dissimilarities between the compatibles of the valuers of the applicants and the subject property were such as to exclude comparison", and that"noticeof thesedissimilarities. 25 also, disposes of the complaint of the applicants that the authorities were quilty of discriminatory treatment towards the applicants." In arguing the appeal before us learned counsel for the 30 appellants challenged the above findings of the learned trial Judge regarding dissimilarities between the comparable*» of the valuers and the subject property and argued that in fact there were no dissimilarities at all. He also, argued, that the learned trial Judge acted underamisconception of fact when finding that 35 the property of the appellants is not fronting thesea. finally he argued that the learned trial Judge erroneously arrived at the conclusion that the sub judice assessment was correct. As was most recently said by Stylianides J.,in delivering the 40 judgment of the full Bench of this Court in the Republic v. HadjiPanteli

(1989)3 C.L.R.

1. the "nature of a revisional 760 3 C.L.R. Apostolou and Others v.Republic &Another A. Loizou, J\ appeal is different than the appeal in civil cases, due to the differences between thetwojurisdictions Thesubject matter of the recourse is the legality of the administrative act or decision. The subject matter of the revisional appeal continues 5 to bethelegality of thesame act or decision". This view is in line with the Case-law ol this Court. (See Republic v. Vassiliadcs (\%1) 3C.L.R. 82.Pikis v. Republic (I96S) 3 C.L.R.
2. Constantinides r. Republic

(1969)3 10 C.L.R. 523. Papadopoullos v.Republic

(1970)3 C.L.R. 169. Republic v.Pericieous

(1972)3C.L.R. 63). In conformity with the above Case-law what we have to consider inthisappeal isthelegalityofthesubjudiceassessment 15 in the light of thegrounds of law relied upon inthis appeal. The approach of the Courts in recourses against such assessments hasbeen stated in anumber ofcases. Recently this court had the occasion to deal with this matter in the case of 20 Cbamlambous v. Republic (19S9) 3 C.L.R. 655. and it was said: "Needlesstosayherethat thiscourt incasesoftaxreviewhas the same jurisdiction as in any other field of administrative 25 recourse. It isconfined to areview of the legality of the action of the administration within the sphere of their lawful authority. Providedtheyoperatewithin theframework oftheir powersthe administration isthejudgeofthefact finding process. Andifthe inquiry intothefacts isdueand proper inthecircumstances and 30 the decision one reasonably open to them, the court will not interfere with such appreciation as a proper exercise of their powers (See Lilian Georghiades v. The Republic

(1982)3 C.L.R. 659). 35 40 This Court, also, dealt with the same matter in the case of Protopapa v.Republic

(1989)3C.L.R.528andhadthis tosay: "Thequestion that arises isnot one astowhich ofthetwo valuations this court prefers, but as to the extent of the jurisdiction oftheCourt to interfere withtheappreciation by the administration of factual elements and of the material in thefilewhich isnot subject tojudicialcontrol solongasthere 761 A.Loizou.P. Apostolou &Othersv.Republic&Another

(1989)does not exist a misconception of fact or law or abuse of power, not is subject to judicial control the appreciation of the weight of the real facts constituting the reasoning. In the case of Athinoulla Ieronymides v. The Republic

(1988)3C.L.R. 2657 Isaidthe following: 5 'The usefulness of the valuation submitted by the applicant, and whichwasfor the first time brought tolight in the course of the present proceedings, is asto whether 10 in appreciating the facts of the case, the respondent Commissioner acted under any misconception of fact or lawor inabuseof power,that isincircumstances inwhich this Court would be justified to interfere with his appreciation of the facts of the determination of the 15 merits. Not being before the Respondent Commissioner when the sub judice decision was reached, it should otherwise be ignored asa review bythe Court is confined to the evidence that was before the Respondent commissioner at the time he reached the sub-judice 20 decision -vide Christofides v. Republic (19S4) 3C.L.R. 1454at 1459-1960." The aforesaid approach applies with equal force to the facts ofthepresent caseasthevaluation thathasbeen placed 25 before me on behalf of the applicants was never before the respondent Commissioner. What hastobe decided therefore iswhetherthe decision oftherespondent Commissioner was reasonably open to him on the basis of the valuation of Mr. Mateas. that being the only evidence before the respondent 30 commissioner at thematerial time asto thevalueoftheland in question at the relevant dates: It has, however; to be examined in the light of the valuation produced on behalf of the applicant in order to see if there exists any of the aforementioned reasons justifying an interference of this 35 court with the appreciation of the facts ofthe case,guidedin that respect by the general principles of administrative Law to which Ihave already referred hereinabove. On the totality of the circumstances before me I am 40 satisfied that the valuation of Mr. Mateas is duly supported by the material relied upon by him and properly reasoned. 762 3 C.L.R. 5 Apostolou &Others v.Republic &Another A. Loizou, P. He gives a detailed account of the duly recognized method used and the comparable sales which were relied upon in arriving at the conclusion that he didand there hasnot been established cither that there has been any misconception of fact orlaworthatsuchvaluation givesrisetoabuseorexcess of power." We have very carefully gone into all the material that was before the respondent Director and we have considered all the 10 submissions of learned counsel for the appellants. Having done this,wearesatisfied that onthetotality of the material that was before him itwasreasonably open tohim to raisethesubjudice assessment and in the circumstances hehas neither acted under any misconception of fact or law nor in abuse of power. 15 Moreoverhedulyinquired intoallaspectsofthematter andthe subjudicedecisioncannotbefaultedonanyground. Theappeal must,therefore, be dismissed. Before concluding we would like to add that indeed the 20 learned trial Judge acted under a mistaken view regarding the aspect of the sea-fronting of the subject property, a view, however, which the respondent Director did not have in any way. Butasalreadysaidwhat wehavetoconsider inthisappeal is the legality of the sub judice act. regarding which we have 25 alreadygiven ourpronouncement.Anymisdirection by aCourt of first instance in its appreciation of the legal or factual aspect of a casecannot by itself leadto the annulment of an otherwise valid act. 30 35 In the lightof theabove conclusions thisappeal mustbeand is hereby dismissed. In the circumstances, however, there will be no order asto costs. Appeal dismissed. No orderas to costs. 763