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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 692
1989 June 17
[STYLIANIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ROUSHIAS HADJICHRISTODOULOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE COMMISSIONER
OF INCOME TAX,
Respondents.
(Case No. 7/86)
Taxation-Income Tax-Assessment and Collection of Taxes-The Assessment and Collection of Taxes Law, 1978 (Law 4/78) as amended by Laws 23/78 and 41/79, section 23(1)-Time limit within which the Director may raise an assessment-The time is within the year of assessment or within six years of the expiration thereof-Year of assessment means the period of 12 months commencing on the first day of January each year-Director may invoke his powers under section 23.1, whenever he, bona fide, forms the view that no assessment was raised or the tax levied is insufficient-The limit in respect of the income of 1970 (year of assessment 1971) ended on 31 December 1977 and for the subsequent year on 31 December 1978-As the assessments were raised on 13 October 1977, they were raised within the aforesaid time limit.
Taxation-Assessment and collection of taxes-Quantification and recovery of-Governed by the Law in force at the time of such quantification, assessment and recovery-This does not amount to retrospective taxation.
Constitutional Law- Taxation-Constitution, Art. 24.3 -Qualification and recovery of taxes governed by the Law in force at the time of such quantification and/or recovery-This does not contravene Art. 24.3 ofthe Constitution.
Constitutional Law-Taxation-Constitution. Art. 24.3-Interest payable on amount of tax-It is not taxation-It Can be imposed retrospectively.
Misconception of fact-What amounts to misconception of fact-Failure to make due inquiry causing lack of knowledge of material facts amounts to misconception of fact-It may consist of either the taking into account of non -existing facts or (lie non-taking into account of existing facts- Burden of establishing it, falls on the person challenging the validity of the decision in question-Presumption that an administrative decision is reached after a correct ascertainment of the relevant facts.
Judicial control-Assessment of taxes-Interference by the court-Principles applicable-court does not interfere lithe sub judice decision was reasonably open to the respondent on the basis of the correct facts and in the light of the correct application of the relevant legislation and principles of Law.
Taxation - Income Tax - Interest - Unjustifiable omission- The Assessment and Collection of Taxes Law. 1978 (Law 4/7S, as amended by Law 23/78, section 42(2)-Michaelidou v. The Republic (1985) 3 C.L.R. -1836 at pages 1848 to 1852 cited with approval and followed as regards meaning of "omission" and "unjustifiable".
The principles enunciated by the Court in determining the present recourse against the sub judice assessment of income tax appear sufficiently in the hereinabove Headnotes.
As regards the complaint in respect of the imposition of interest on the ground of unjustifiable omission in the sense of section 42(2) of Law 4/78, as amended, it should he noted that the applicant had failed to make any return of income for the years of assessment 1971, 1972, 1973, l974. He submitted his returns for the years of assessment 1975,1976 (years of income), 1974, 1975, on 10/8/1977. The assessments as far as the years of assessment 1977 and 1978 were concerned were raised on 26/4/1977 and 10/8/1978 respectively.
The Court found that there was an unjustifiable omission in respect of the years 1971-1974, both inclusive. The Court further found that the decision to charge interest for the year of assessment 1975 wasreasonably open to the respondent. Having regard to all the circumstances, including the position of the taxpayer, a villager, and an animal breeder, the Court thought that the decision to impose interest in respect of the year of assessment 1976 was not reasonably open to the respondent. Charge of interest can be made under section 42(2) if there is delay in making an assessment. There was no delay in respect of the years of assessment 1977 and 1978, though the taxpayer submitted his returns on 3 December 1977 and 15 December 1978, respectively, after the assessments were raised.
In the light of the above the Court annulled in part the sub judice decision as regard the imposition of interest for the years of assessment1976, 1977and 1978. The Court dismissed the recourse as far as all other issues are concerned.
Part of sub judice decision relating to
payment of interest in therespect of the years
of assessment 1976, 1977 and 1978
annulled. Recourse in all other respects
dismissed. No order as to costs.
Cases referred to:
Christou v. Republic (1965) 3 C.L.R. 214,
Matsis v. Republic (Minister of Finance and Another) (1969) 3 CL.R. 245,
Republic and Another v. Frangos (1965) 3 C.L.R. 641,
Mavromati v. Republic and Another (No.1) (1966) 3 C.L.R. 143,
Solomonides v. Republic (Commissioner of Income Tax) (1968) 3. C.L.R. 105,
Constanne Estates v. Republic (1982) 3 C.L.R. 859,
loannides v. Republic (1985) 3 CL.R. 1801,
Ignatiou and Another v. Republic (1989) 3 C.L.R. 346,
Ioannides v. Republic (Council of Ministers and Others) (1972) 3 C.L.R. 318,
Mikellidou v. Republic (1981) 3 C.L.R. 461,
Platritis v. Republic (Council of Ministers and Another) (1969) 3 C.L.R. 366,
P.G.G. Clift v. Republic and Another (1965) 3 C.L.R. 285,
Christides v. Republic (1966) 3 C.L.R. 732,
Markrides v. Republic (Minister of Finance) (1967) 3 C.L.R. 147,
Georghiades v. Republic (1982) 3 C.L.R. 659,
Mangli v. Republic (1983) 3 C.L.R.52,
HadjiEraclis and Another v. Republic (1984) 3 C.L.R. 604,
Michaelidou v. Republic (1985) 3 C.L.R. 1836.
Recourse.
Recourse against the validity of the decision of the respondent on the objections of the applicant in respect of the income tax for the years of assessment 1971-1978 and the imposition of special contribution for the year 1977.
M. Pelides. for the Applicant.
Y. Lazarou, Counsel of the Republic B, for the Respondent.
Cur adv. vult.
STYLIANIDES, J. read the following judgment. The applicant by means of this recourse challenges the validity of the decision of the Respondent on the objections of the applicant in respect of the income tax for the years of assessment 1971 to 1978 (years of income 1970-1977); the imposition of special contribution for the four quarters of the year 1977 and the relevant Notices of Assessment.
The Respondent imposed interest for all the assessments and annulment of this decision is also sought.
The facts of the case are as follows:-
The applicant, RoushiasHadjichristodoulou, of Akaki, Nicosia, derived his income at all material times from director's remuneration of his private family company AgroktimatikesEpichirisisRoushias Ltd. and from other income, either belonging to that company, which was not recorded in the books of account of the company, and/or otherwise. The applicant was a stock farmer and animal breeder. In 1970 he founded and caused to be registered the aforesaid company limited by shares. His pre-incorporation business was taken over by this company. He was a widower from 1970. He was living with his younger daughter, who married in 1976.
Applicant failed to submit his returns of income for the years 1970-1973 although such return were being sent to him for completion every year. His returns for the year 1974 to 1977 were submitted on the following dates and the only income declared was director's remuneration as follows:-
Year Date submitted remuneration declared Residential Income
£ £
1974 10.8.1977 1,850 10
1975 10.8.1977 2,400 10
1976(a) 3.12.1977 2,400
1976(b) 15.12.1978 3,000
1977 15.12.1978 3,000
On 26th April, 1977, Respondent issued to applicant a Notice of Assessment for the year of assessment 1977 on income of £8,000.-; against this assessment the applicant objected through his accountant Mr. Kalopetritis by letter dated 7th May, 1977 - (see Appendix B to the opposition).
On 13th October, 1977, the Respondent issued to the applicant Notices of Assessment for the years of assessment 1971 to 1976. Objection was taken to these assessments by the same accountant in writing - (see Appendices C, D, E to the opposition).
On 10th August, 1978, the Respondent raised assessment forthe year 1978, against which objection was made on the 20th September, 1978 - (see Appendix F).
On 22nd December, 1983, Respondent issued to applicant Notice of Assessment for Special Contribution for the four quarters of the year 1977, against which the applicant objected through another firm of accountants by letter dated 16th January, 1984.
On 12th October, 1978, applicant was requested in writing by Respondent to submit his return of income for the year 1977 and capital statements as at 31st December of each of the years 1974 to 1977, showing his wife's and children's assets and liabilities accompanied by all necessary documents.
Applicant submitted only his return of income for the year 1977 and two statements showing that his only assets and liabilities as to 31st December, 1977 and 31st December, 1978, were the following:-
31st December, 1977
1. Four shares in the aforesaid named private company.
2. Motor car, Registration No. HM 57, purchased in 1975, valued at £1,530.-.
3. He was indebted in £1,485.- to the Co-operative Credit Society of Akaki.
31st December, 1978
1. The same four shares.
2. A Peugeot car JQ 817, purchased on 18th September, 1978, at £5.000.-. He sold motor car HM 57 at £3.500.-
Such statements showed no other movable or immovable property, bank account or anything else in Cyprus or abroad - (Appendices H and I to the opposition).
The Respondent in investigating applicant's case requested him to submit evidence regarding an account that was kept by him with Barclays Bank and the Chartered Bank and copies of the drawings and building permits for the erection of hisdaughter's houses. No drawings or building permits were submitted with regard to the houses, but a certificate from applicant's architects - Petevis and Georghiades-dated 8th March, 1980, to the effect that the house of Maria Gregoriou of Akaki was erected and completed in 1977 at a cost of £8.000.-On 18th April, 1981, Respondent demanded in writing - (see Appendix M to the opposition) - submission of copies of applicant's account with Barclays Bank from 1st January, 1970 to 31st December, 1978. Copy of account was submitted for the period 1st October, 1974 to 27th December, 1978, only. This statement discloses that applicant was depositing and drawing various sums of money which were not justified from the amounts of receipts as remuneration from the company, Which, according to his version, was the only source of his income as from 1970. The Respondent ascertained that the applicant was not recording in the books all the income which belonged to the company and thus he was making false entries by having part of the company's income deposited in his own personal account and he was not making correct returns regarding his actual income. It was revealed that he failed to declare assets which he owned as at 31st December, 1977: a small account at Barclays Bank, balance of his current account with his private company - £7,205.-cost of acquisition of three fields in1975 - £2,469-.
A parallel investigation was carried into the income tax affairs of the company.
The applicant was not responding to several requests of the Respondent to call at his office for settlement of his income tax liability and the applicant's auditors informed the Respondent that their client was not co-operative with them and, due to this, they cased acting for him.
The Respondent proceeded and determined the amount of the object of the tax of the applicant for the aforesaid years, on the basis of the evidence available to him and his such decision was communicated to the applicant by letter dated 25th October, 1985. Notices of Assessment for the years of assessment 1971 to 1978 (years of income 1970 to 1977) and Notices of Assessment for special contribution for the four quarters of the year 1977 were sent to him on same day.
The grounds on which the applicant relies are:-
1. The assessments for the years of assessment 1971 and 1972, which were raised on 13th October, 1977, were made outside the six years period provided in section 23(1) of the Assessment and Collection of Taxes Law, 1978 (Law No. 4/78), as amended.
2. The Respondent failed to make a correct assessment of the factual background and thus acted under a misconception of fact.
3. The demand for interest on the tax payable fromthe dates stated on the Notices, i.e. from 1st December of the year of assessment at the rate of 6% for the years of assessment 1971 to 1977 and 9% for the year of assessment 1978, is ultra vires and Lacks due reasoning.
4. The case for the annulment of the special contribution isa corollary to the judgement of the Court on the income tax part of the case.
GROUND 1:
The liability to pay tax accrues in the year when the income was earned, irrespective of whether the Commissioner of Income Tax has sent a notice of assessment on the taxpayer or not and the income tax is deemed to have been imposed at the time when the income is earned and the liability actually accrued (DemetrisPetrouChristou and The Republic of Cyprus through The Commissioner of Income Tax (1965)- 3- C.L.R. 214; Andreas Matsis v. Republic (Minister of Finance and Another) (1969) 3 C.L.R. 245, a case on estate duty).
The Assessment and Collection of Taxes Law, 1978 (Law Na 4/78), as amended by Laws 23/78, 41/79, is a Law to consolidate and amend the Laws relating to the assessment and collection of taxes. This legislation regulates the machinery of assessment and objections and not the jurisdiction to charge tax, which is derived from the Income Tax Legislation.
Section 23(1) of Law 4/78 reads:-
"23. - (1) Where it appears to the Director that any person on whom has been imposed under any Law, including a Communal Chamber Law imposing a personal contribution in the form of income tax enacted either before or after the commencement of this Law, has not been assessed or has been assessed at a less amount than that which he ought to have been assessed, the Director may, within the year of assessment or within six years of the expiration thereof, assess such person at such an amount of tax or additional amount of tax as was imposed and ought to have been assessed and collected under the provisions of the Law imposing the tax, and the provisions of this Law shall apply to such assessment and to the tax assessed thereunder:
Provided that in making any such assessment the Director shall allow such deductions as the Law applicable to the respective year of assessment provides and the tax payable on any such assessment shall be at the rates provided in the Law applicable to the respective year of assessment."
When the liability for tax accrues and is neither met nor extinguished, the statutory provisions applicable for the quantification and recovery of such tax at the time of such quantification and assessment and recovery are the Laws in force at this time. This does not amount to retrospective taxation, nor is such Law contrary to the provisions of Article 24 paragraph 3, of the Constitution. The permissible time for assessment is under sub-section (1) of section 23 within the year of assessment or within six years of the expiration thereof. "Year of assessment means the period of twelve months commencing on the first day of January in each year."
Under section 6 of the Income Tax Legislation, tax shall be charged, levied and collected for each year of assessment upon the chargeable income of any person for the year immediately preceding the year of assessment.
Under section 23(1), the Respondent has power to raise new or additional assessments, when it appears to him that a taxpayer was not assessed at all or was under-assessed. The power conferred under section 23 may be exercised within six years after the end of the year of assessment. Under paragraph2 of section 23, where any person has been guilty of fraud or wilful default, the time-limit of the six years mentioned in subsection (1) is increased to twelve years.
The only limitation to the exercise of these powers is the time to which I have referred.
The Respondent is entitled to invoke his powers under section 23(l), whenever, he, bona fide, forms the view that no assessment was raised, or the tax levied is insufficient, within six years of the expiration of the year of assessment - (The Republic of Cyprus, through 1. The Attorney-General, 2 The Ministry of Finance through The Director of The Department of Inland Revenue, and Ioannis Chr. Frangos (1965) 3 C.L.R. 641; TheophilactosMavromati (No.1) and The Republic of Cyprus, through 1.The Director of Inland Revenue, 2.The Minister of Finance (1966) 3 C.L.R. 143, at p. 150 Dr. Solon Solomonides v. Republic (Commissioner of Income Tax) (1968) 3 C.L.R. 105; Constanne Estates v. Republic (1982) 3 C.L.R. 859; loannides v. Republic (1985) 3 C.L.R. 1801; ApostolosIgnatiou and Another v. The Republic of Cyprus, through The Commissioner of Income Tax (1989) 3 C.L.R. 346).
In the present case the six years limit ended for the income of 1970, year of assessment 1971, on 31st December, 1977, and for the year of income 1971, year of assessment 1972, on 31st December, 1978. The assessments were raised on 13th October, 1977, within the time prescribed by the Law.
GROUND 2:
With regard to the misconception of fact it is common place that failure to make a due inquiry causing lack of knowledge of material facts amounts to misconception of fact - (see. inter alia, Constantinosloannides v. Republic (Council of Ministers and Others) (1972) 3 C.L.R. 318; Mikellidou Republic (1981) 3 C.L.R. 461). A misconception as to facts may consist of either the taking into account of non-existing facts or the non-taking into account of existing facts.
The burden of establishing that an administrative decisionwas reached on the basis of a misconception as to the material facts lies on the person challenging the validity of such decision on this ground, as there exists a presumption that an administrative decision is reached after a correct ascertainment of the relevant facts. (See, inter alia, Costas Platritis v. Republic (Council of Ministers and Another) (1969) 3 C.L.R. 366).
It is well settled that, in any recourse under Article 146 of the Constitution against an assessment, the Court will not interfere with the sub judice decision of the income tax authorities, if it is of the opinion that such decision was reasonably and properly open to them on the basis of the correct facts and in the light of the correct application of the relevant legislation and principles of law - (see P.G.G. Clift and The Republic of Cyprus through (a) The Minister of Finance, (b) The Commissioner of Income Tax (1965) 3 C.L.R. 285; Christos Christides and The Republic of Cyprus, through The Director of Inland Revenue Department of the Ministry of Finance (1966) 3 C.L.R. 732; Rallis Makrides v. RepUblic (Minister of Finance) (1967) 3 C.L.R. 147; Georghiades v. Republic (1982) 3 C.L.R. 659; Mangli v. Republic (1983) 3 C.L.R. 52; HadjiEraclis and Another v. Republic (1984) 3 C.L.R. 604).
With regard to ground 2 and he incorrect assessment of the factual background, counsel for the applicant referred to the following matters:-
Personal living expenses, car expenses, gifts to daughters, income not subject to income tax child allowance for the younger daughter of the taxpayer who was living with him until 1976 when she was married.
It was argued by counsel for the applicant that the living expenses of the taxpayer assessed by the Respondent at £10,000.- for the years 1970 to 1977 (both inclusive) were excessive, having regard to the standard of living of the applicant, his way of life, his family condition and the social conditions in his village Akaki.
With regard to car expenses, it was argued that it should notbe estimated at £2,000.- in all. It was argued that it was wrongly computed, as the said car was mainly used for company purposes and that, at any rate, the reasonable amount should be in the region of £1,000.-.
With regard to gifts to daughters, there is no dispute that the said sums were given to them. His main contention is that the gift of shares of £8,000.-. which he admits that he transferred to the donees - daughters, was made for the services they rendered through the years, without proper remuneration and, therefore, a reasonable deduction should have been made so as to reflect the amounts which was saved by the applicant due to his daughters services, as in fact that amount or such deductible amount was not earned or belonged to the taxpayer, but to his daughters.
£525.- were credited to the directors current account and £1,000.- from the sale of a private car was ignored by the Commissioner. No allowance vas given for the younger daughter - child of the taxpayer - for the years 1971 to 1976 until her marriage. Most of the items to which this ground refers were within the personal knowledge of the taxpayer. He should have in his returns and/or otherwise give full particulars to substantiate his allegations and claim the deductions, etc., to which under the Law he claims to have been entitled.
The estimate for the applicant's living and car expenses is reasonable in the circumstances of the case. Not even a scintilla evidence was adduced to the Respondent substantiating the allegation that the car was used mainly for the purpose of the company.
The property, which was subsequently turned into shares, was included in the capital statement as at1st January 1970 and not included in the capital statement as at 31st December, 1970, because it was transferred in the name of the company. The value of shares in the company, which the applicant gifted to his daughters, has to be taken into consideration. i.e., added back so as to ascertain the applicant's correct chargeable income.
I find no merit in the allegations with regard to the house and the furniture and £1,000.- cash. With regard to the deduction forhis daughter, the Law provides that, in respect of a child over the age of 16, a deduction is made of £100.-, if it receives full time education in any secondary school, college, university or other educational institution in the Republic and £400.- if full time education is received outside Cyprus. The secondary education of the younger daughter was completed in 1972; he was no more after 1972 entitled to any child deduction, as the requirements of the Law were not satisfied.
On the basis of the aforesaid facts and the principles governing the determination of a recourse of this nature, expounded earlier on in this Judgement. I reached the conclusion that the sub judice decision is not a product of misconception of fact. The Respondent carried out, so far as possible in the circumstances, a due inquiry. The sub judice decision was reasonably open to the Respondent and is not faulty in this respect.
GROUND 3:
The applicant complains that by the Notices of Assessment the Respondent demanded from the applicant and made payable by him interest as from 1st December of the respective year of assessment, at the rate of 6% per annum in relation to the tax for the years of income 1970 to 1976 and at 9% as from 1st December, 1978 in relation to the tax for the year of income 1977.
It was submitted that the delay in the determination of the objection was not due to the applicant and that, if any delay in the making of the assessment was not due to the applicant's unjustifiable omission. Furthermore, that this part of the sub judice decision lacks due reasoning.
In the respective Notices of Assessment (Appendices P to V) we read:-
"3. Επειδή η καθυστέρηση στη διενέργεια της βεβαίωσης της φορολογίας οφείλεται στη δική σας αδικαιολόγητη παράλειψη τόκος προς 6% ετήσια καθίσταται πληρωτέος από 1.12...."
In the Notice of Assessment for the year 1978 (Appendix W) we read:
"3. Επειδή η καθυστέρηση στη διενέργεια της βεβαίωσης της φορολογίας οφείλεται στη δική σας αδικαιολόγητη παράλειψη τόκος προς 9% ετήσια καθίσταται πληρωτέος από 1.12.78."
The relevant statutory provision is section 42(2) of Law 4/78, as amended by Law 23/78, which reads:
"42. - (2) Οσάκις η καθυστέρησις εις την διενέργειαν βεβαιώσεως οφείλεται εις αδικαιολόγητον παράλειψιν του φορολογουμένου, καταβάλλεται τόκος προς εννέα τοις εκατόν ετησίως από της πρώτης ημέρας του Δεκεμβρίου, του έτους εις το οποίον αναφέρεται η βεβαίωσις, ανεξαρτήτως του έτους εν τω οποίω όντως εγένετο η τοιαύτη βεβαίωσις."
("42.- (2) Whenever the delay in making an assessment is due to a taxpayer's unjustifiable omission. interest at the rate of nine per centum per annum shall be payable from the first day of December of the year to which the assessment relates, irrespective of the year in which such assessment was actually made.")
The proviso to sub-section (2) of section 42 reads:-
"Provided that the interest payable with regard to any year of assessment preceding the year of assessment beginning on the 1st January, 1978, shall be at the rate of six per centum per annum."
I dealt in some length with interest, in tax cases and particularly with the aforesaid statutory provisions in Michaelidou v. Republic (1985) 3 C.L.R. 1836, at pp. 1848 to 1852.
Interest in this Law is neither tax nor penalty and, therefore, the constitutional provision prohibiting imposition retrospectively of tax is not applicable.
Law 4/78 came into operation on 1st January, 1978. Thelanguage of the sub-section and the proviso for payment of interest demands that the Law must be applied so as to have a retrospective operation.
As said in Michaeiidou case (supra), for interest to be payable there must be unjustifiable omission. "Omission" means a failure to give any notice, make any return, produce or furnish any document or other information required by or under the Law. The omission must be unjustifiable. A distinction must be made between unjustifiable and unreasonable. It is upon the administration to determine, in each particular case, subject to judicial review by this Court, whether an omission is unjustifiable or not.
Every person chargeable with tax has under the Law to give notice to the Director by the prescribed date in any year of assessment that he is so chargeable. He must, also, make a return of the object of the tax and such particulars as may be required by him to be rendered for the purpose of the Law, whereby the tax is imposed.
The Respondent stated in his aforesaid decision that there was an unjustifiable omission on behalf of the applicant in the sense of section 42.
The applicant failed to make any return of income for the years of assessment 1971, 1972, 1973, 1974. He submitted his returns for the years of assessment 1975, 1976 (years of income 1974, 1975) on 10th August, 1977. Assessments were raised for the years of assessment 1971 to 1976 (both inclusive) on 13th October,1977.
The delay in the making of the assessments for the years of assessment 1971, 1972, 1973, 1974 was due to the unjustifiable omission of the applicant to submit any returns.
With regard to the year of assessment 1975, the decision of the Respondent for payment of interest was reasonably open to him. This is not the case, however, with regard to the year of assessment 1976. Having regard to all the circumstances of the particular case, including the taxpayer's position - a villager, an animal breeder - the time of raising the assessment for the yearof assessment 1976, the decision for interest for this year is not sustained.
Assessments were raised for the year of assessment 1977 on 26th April, 1977 and for the year of assessment 1978 on 10th August, 1978. Objections were made on 7th May, 1977, and 20th September, 1978, respectively, -(see Appendix A) (p. 2) and Appendices B and F to the opposition).
Sub-section (2) of section 42 applies where there is delay in making an assessment and such delay is due to the unjustifiable omission of the taxpayer.
For the aforesaid years of assessment there was no delay in making the assessments, though the taxpayer submitted his returns on 3rd December, 1977 and 15th December, 1978, respectively, after the assessments were raised.
The determination of the objection should not be confused with the making of an assessment and the sending of notices of assessment.
For these three years, the combined provisions of section41, relating to the time-limit within which payment of tax is to be made and section 42(1), which governs the payment of interest for non-payment pt tax in time should have been applied.
The Respondent acted under misconception of fact and law and in abuse and excess of power.
GROUND 4:
With regard to special contribution, what I have said about income tax applies consequentially.
In the result, the part of the sub judice decisions relating to payment of interest on the tax for the years of assessment 1976, 1977 and 1978 is declared null and void and of no legal effect whatsoever.
The recourse in all other respects fails and is hereby dismissed.
No order as to costs.
Sub judice decision partly
annulled. No order as to costs.