Shree Changdeo Sugar Mills, Ltd. Vs.
The Commissioner of Income Tax, Bombay  INSC 273 (7 December 1960)
07/12/1960 HIDAYATULLAH, M.
CITATION: 1961 AIR 1154 1961 SCR (2) 990
Income-tax--Undistributed income--Company in
which Public are substantially interested--Powers to assess Super
Tax--Test--Part B States (Taxation Concession) Order, 1950, cl. 14--Indian
Income-tax Act, 1922 (11 of 1922), S. 23A(1).
During the assessment year, the company had
not distributed dividends to the extent of 60% of its profits and an order
under S. 23A(1) of the Act was passed by the Income-tax Officer. The question
referred by the Tribunal to the High Court was whether at the relevant time the
assessee company could be deemed to be a company in which the public were
substantially interested, i.e., held 25% of the voting power, was answered in
Held, that the test that no holding by the
Directors of a company could be regarded as one in which the public were
substantially interested was not the correct test to apply.
The test as laid down in Raghuvanshi Mills v.
Commissioner of Income-tax,  2 S.C.R. 978, would apply to this Case.
Held, further, that the paramount condition
in applying the proviso and the explanation of S. 23A(1) was that the public
should be beneficially interested in 25% of the voting power., The explanation
to S. 23A required that shares held by the company should be considered as held
by the public, only if S. 23A did not apply to it. The concession order in cl.
14 of the; Part B States (Taxation Concession) Order, 1950, did not seek to
negative that test, it only conferred a benefit on a company, 991 to which cl.
14 applied, and the company could avail that concession, and still might fall
within s. 23A for other purposes.
The Raghuvanshi Mills Ltd. v. Commissioner of
Income-tax, SI' Bombay,  2 S.C.R. 978, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal c,
No. 380 of 1957.
Appeal from the judgment and order dated March 8, 1956, of the Bombay High Court in Income-tax Reference No. 4 of 1956.
N. A. Palkhivala, S. N. Andley, Rameshwar
Nath, J. B. Dadachanji and P. L. Vohra, for the appellant.
A. N. Kripal and D. Gupta, for the
1960. December 7. The Judgment of the Court
was delivered by HIDAYATULLAH, J.-This appeal, on a certificate by the High
Court, has been filed by Shree Changdeo Sugar Mills, Ltd., to which s. 23A of
the Income-tax Act (prior to its amendment by the Finance Act, 1955) was
applied in respect of the assessment year, 1948-49. The question which was
referred to the High Court was whether at the relevant time the assessee
Company could be deemed-to be a Company, in which the public were substantially
interested. This question was answered in the negative by the High Court.
During the assessment year, the Company had
not distributed dividends to the extent of 60 per cent. of its profits, and an
order under s. 23A(1) of the Indian Income-tax Act was passed by the Income-tax
Officer. The Company appealed to the Appellate Assistant Commissioner, who
dismissed the appeal. It next appealed to the Tribunal, but was unsuccessful.
The Tribunal, however, referred the above question which, as already stated,
was answered in the negative by the High Court.
The issued, subscribed and paid-up capital of
the assessee Company consisted of 60,000 shares, which were distributed as
992 (1) 11 Directors of the Company 41,500
(2) The Managing Agency Firm 2,300 shares.
(3) Mysore Merchants Ltd. 11,880 shares.
(4) Others..... 4,320 shares.
-----------------The question arose in
determining whether the public were substantially interested in the Company,
that is to say, held 25 per cent. of the voting power. The Bombay High Court in
determining this point followed its decision in Raghuvanshi Mills V.
Commissioner of Income-tax (1), and held that no holding by the Directors of a
company could be regarded as one in which the public were substantially interested.
We have heard Civil Appeal No. 30 of 1957 from the decision of the Bombay High
Court in the Raghuvanshi Mills case (1), in which judgment has been pronounced
today, and have held that that is not the correct test to apply.
We have remanded the said appeal, after
setting out the correct test to apply. What we have said there applies equally
There is yet another question, which arose in
this appeal but not in the appeal of the Raghuvanshi Mills. As we have already
stated, Mysore Merchants Ltd., held 11,880 shares of the assessee Company. If
these shares could be said to be held by the public along with 4,320 shares,
the public would be holding 25 per cent of the voting power, whether or not the
Directors of the Company held the rest of the shares.
It was., therefore, necessary for the High
Court to consider whether the shares held by Mysore Merchants 'Ltd., could be
said to be held by the public. The High Court held against the assessee Company
that they could not be counted as part of the holding by the public, and, in
our judgment, the High Court has reached the correct conclusion.
The matter has to be judged under the third
proviso to s. 23A(1), which read as follows:
"Provided further that this sub-section
shall not apply to any company in which the public are (1)  24 I.T.R.
993 substantially interested or to a
subsidiary company of such a company if the whole of the share capital of such
subsidiary company is held by the parent company or by the nominees thereof.
Explanation.-For the purpose of this
sub-section, a company shall be deemed to be a company in which the public are
substantially interested if shares of the company (not being shares entitled to
a fixed rate of dividend, whether with or without a further right to participate
in profits) carrying not less than twenty-five per cent of the voting power
have been allotted unconditionally to, or acquired unconditionally by, and are
at the end of the previous year beneficially held by, the public (not including
a company to which the provisions of this sub-section apply), and if any such
shares have in the course of such previous year been the subject of dealings in
any stock exchange in British India or are in fact freely transferable by the
holders to other members of the public." In applying the proviso and the
Explanation, we have to give effect to the words "not including a company
to which the provisions of this sub-section apply", and have to determine
whether Mysore Merchants Ltd., is a Company, to which the provisions of s. 23A
can be said to be applicable. Learned counsel for the assessee Company contends
that in deciding this, we have to be satisfied on three points, which he
summarises as follows:
(a)The public should not be substantially
interested in that Company;
(b)It must have assessable profits for the
relevant assessment year; and (c)It must not have distributed 60 per cent of
its net assessable profits.
He contends that unless these three
conditions are fulfilled, s. 23A will not apply to Mysore Merchants Ltd., and
that the shares held by it will be deemed to be held by the public.
He points out that Mysore Merchants Ltd., had
no assessable income in the corresponding assessment year and had suffered a
loss, that conditions (b) and (c) did not, therefore, apply, and 994 that s.
23A is not applicable to that Company. In our opinion, the paramount condition
is that even in that Company the public should be beneficially interested in 25
per cent. of the voting power, and it was admitted before us that it was not a
public Company at all but a private Company, and that, therefore, the public
were not interested in that Company. The shares held by Mysore Merchants Ltd.,
cannot at all be counted as a holding in which the public are beneficially
interested, in view of the exclusion contained in the Explanation. This point
will not, therefore, be open for the determination of the High Court, when the
question is reconsidered by the High Court in the light of our observations in
The Raghuvanshi Mills. Ltd. v. Commissioner of Income-tax, Bombay (1), decided
Learned counsel for the assessee Company also
contended that in view of cl. 14 of the Part B States (Taxation Concessions)
Order, 1950, the provisions of s. 23A could not be applied to Mysore Merchants
Ltd. That clause reads as follows:
" 14. Requiring distribution of
dividends by private companies. The provisions of section 23A of the Act shall
not be applied in respect of the profits and gains of any previous year ending
before the appointed day unless the State law contained a provision
corresponding thereto." This Concession would be open to Mysore Merchants
Ltd., if it satisfied the terms of Cl. 14. That, however, cannot detract from
the application of s. 23A to determine whether the shares hold by it can be
described as those in which the public are beneficially interested in another
company. The Explanation requires that the shares held by a company should be
considered as held by the public, only if s. 23A does not apply to it. The
Concessions Order does not seek to negative this test; it only confers a
benefit on a company, to which cl. 14 applies. Mysore Merchants Ltd., may be
able to avail of that concession, and still fall within (1)  2 S.C.R.
995 s. 23A for other purposes. This contention
has no force.
The appeal is allowed, and the case is
remitted to s the High Court for deciding the question in the light of the
observations in our decision in the Raghuvanshi Mills case (1). As the case is
remanded, the costs of this appeal shall be paid by the respondent, but the
costs in the High Court will abide the result.