[*19] 1963 March 21

 

(FORSTHOFF, P., TRIANTAFYLLIDES and MUNIR, JJ.)

 

(October 25, November 22, 1962, January 8, 28, March 21, 1963)

 

STAVROULLA LYSSIOTOU,

AND

1.    THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF FINANCE,

2.    THE GREEK COMMUNAL CHAMBER.

(Case No. 172/62)

Income Tax assessments—Made without lawful authority and subsequently confirmed under another law, effect of.

Imposition of Personal Contributions on Members of the Greek Community for the Year 1961, Law No. 16 of 1961*—Notices under, confirming assessments not made under, effect of.

Following the Judgment of this Court in Argiris Mikrommatis and The Republic (Minister of Finance & another), 2 R.S.C.C. p. 125, the Applicant’s income from her own labour, until that time included in that of her husband who was himself, only, assessed for income tax purposes, was in May, 1962, separately assessed by the Commissioner of Income Tax for the years 1960 and 1961 (for convenience sake hereinafter referred to as assessments ‘A’ and ‘B’ respectively).

In June 1962, the Applicant objected against the said assessments, but in August, 1962, they were confirmed by the Commissioner of Income Tax by two notices-of-tax-payable, (hereinafter referred to as notices ‘A’ and ‘B’ respectively), the tax payable for 1960 being allegedly due to the Republic, whilst that for 1961 being allegedly due to the Greek Communal Chamber, on whose behalf the Inland Revenue Department was acting in collecting the amounts due, pursuant to Art. 88.3, as a personal contribution imposed on a member of the Greek Community.

The Applicant claimed that the said assessments were null and void.

In declaring both assessments to be null and void as having been made without lawful authority (vide Vasos C. Constantinou and The Republic (Minister of Finance and another), 4 R.S.C.C. p. 109) the Court, with respect to the 1961 assessment, assessment ‘B’, further—

Held : as assessment “B” itself was invalid for not having been made under the authority of a law, notice “B” which purported to confirm the said assessment under Law No. 16/61, could not validly confirm such assessment.

Assessments declared null and void.[*20]

Cases referred to :

Argiris Mikrommatis and The Republic (Minister of Finance & another), 2 R.S.C.C.

In Re-Tax Collection Law No. 31 of 1962 and HjiKyriacos and Sons Ltd., 5 R.S.C.C,

Vasos C. Kyriakides and The Republic (Minister of Finance & another), 4 R.S.C.C.

A. Triantafyllides and C. Melissas for the Applicant.

A. E. Munir, Counsel of the Republic, for the Republic.

G. Cr. Tornaritis for the Greek Communal Chamber.

Cur. adv. vult.

March, 21. The Judgment of the Court was read by:

FORSTHOFF, P. : The Court declares—

The assessments, EN 23/SP/62 and EN 494/SP/62G, dated the 31st May, 1962, as confirmed on the 4th August, 1962, are null and void and of no effect whatsoever.

xx        xx        xx

.. .. .. .. .. .. .. .. .. .. .. ..

Concerning assessment ‘B’, the Court is of the opinion, for the same reasons as those applicable to assessment ‘A’, that it should also be declared to be null and void.

Notice ‘B’, confirming assessment ‘B’, appears to have been given under the “Law for the Imposition of Personal Contributions on Members of the Greek Community for the Year 1961”, Greek Communal Law 16/61*, which was enacted on the 29th December, 1961, and which in Case 298/62† was found not to contravene Articles 24, 87 and 88 of the Constitution.

As, however, such notice ‘B’ purports to confirm, under Law 16/61, assessment ‘B’ which was not itself made under such Law but, as above stated, was made, at the time, without the authority of any law, the Court is of the opinion that it was not possible under Law 16/61 validly to confirm an assessment which was not made under such Law 16/61 and which, [*21] in any case, was made originally without lawful authority. Should Respondent No. 2 intend to tax Applicant in respect of the year of assessment 1961 the process of assessment, under the appropriate legislation, has to commence ab initio.

For the Reasons set out above the Court declares as stated in The Order.