1985 (2) TMI 216 - HC - Companies Law

Summary

Issues Involved:

1. Determination of the residency status of the Bank of China (in liquidation) for tax purposes under the Income-tax Act, 1961.
2. Interpretation of "control and management" of the company's affairs under section 6(3) of the Income-tax Act, 1961.
3. Role and powers of the official liquidator under the Companies Act, 1956, and its impact on the residency status of the company.

Detailed Analysis:

1. Determination of the Residency Status of the Bank of China:

The primary issue is whether the Bank of China (in liquidation) should be assessed as a resident company in India for the assessment year 1975-76. The Income Tax Officer (ITO) initially treated the bank as a non-resident company. However, the Tribunal later directed the ITO to treat the bank as a resident within the meaning of section 6(3)(ii) of the Income-tax Act, 1961. The Tribunal's decision was based on the fact that the control and management of the bank's affairs were situated wholly in India during the relevant previous year.

2. Interpretation of "Control and Management" Under Section 6(3):

Section 6(3) of the Income-tax Act, 1961, states that a non-Indian company is considered resident in India if its control and management are situated wholly in India during the relevant year. The court emphasized that "control and management" signifies the controlling and directive power, often referred to as "the head and brain" of the company. The term "wholly" indicates that this power must be entirely in India. The court cited Lord Loreburn L.C.'s observation in De Beers Consolidated Mines Ltd. v. Howe, which established that a company resides where its real business is carried on, i.e., where the central management and control actually abide.

3. Role and Powers of the Official Liquidator:

Upon the liquidation of the company, the official liquidator, appointed by the High Court, assumes control and management of the company's affairs. Under section 457 of the Companies Act, 1956, the liquidator has various powers, including the authority to carry on the business of the company for beneficial winding-up, sell property, and do all things necessary for winding-up the affairs of the company. The court noted that the liquidator acts as an agent of the company and exercises these powers under the court's control.

The court further explained that under section 491 of the Companies Act, the powers of the board of directors cease upon the appointment of a liquidator. The liquidator, therefore, manages the company's affairs, including income-related activities, under the court's supervision. This management by the liquidator in India implies that the control and management of the company's affairs are situated wholly in India.

Conclusion:

The court concluded that since the official liquidator was managing the company's affairs in India, the Bank of China (in liquidation) must be deemed a resident in India for the relevant assessment year. The court answered the question in the affirmative, favoring the assessee, and allowed the official liquidator to retain the costs of the reference from the funds in his hands.

Separate Judgments:

Both Dipak Kumar Sen and Ajit K. Sengupta, JJ., concurred with the judgment, with Dipak Kumar Sen J. specifically stating, "I Agree."