1971 (7) TMI 5 - SC - Income Tax

Order levying additional super-tax - assessee in which shares carrying more than 50 per cent. of the voting right were held by less than six persons, was not one in which the public were substantially interested even though it was not found that its affairs were at any time controlled by less than six persons - An order u/s 23A is not an order of assessment - assessee s appeal dismissed

Summary

Issues:
1. Applicability of section 23A of the Income-tax Act, 1922.
2. Interpretation of the conditions under sub-clause (b)(iii) of the Explanation to section 23A.
3. Legal validity of imposing additional super-tax under section 23A without recourse to section 34(1).

Analysis:
1. The case involved an appeal regarding the applicability of section 23A of the Income-tax Act, 1922, concerning the assessment of super-tax on non-distributed income of companies. The dispute arose as the shares carrying more than 50% of the total voting power were held by less than 6 persons during the accounting period, leading to the contention that the company was not substantially interested to the public, thus invoking section 23A. The Income-tax Officer imposed additional super-tax due to non-distribution of dividends, which was upheld by the Appellate Assistant Commissioner and the Tribunal.

2. The crux of the matter revolved around the interpretation of sub-clause (b)(iii) of the Explanation to section 23A. The key issue was whether both conditions of the sub-clause needed to be fulfilled, i.e., control of company affairs by at least 6 persons and the holding of shares with more than 50% voting power by not less than 6 persons. The Tribunal and the High Court held that both conditions must be satisfied for a company to be considered substantially interested to the public. The use of the word "or" in the sub-clause was construed conjunctively, requiring compliance with both conditions.

3. Regarding the legal validity of imposing additional super-tax without recourse to section 34(1), the court relied on a previous decision that clarified such orders under section 23A were not considered orders of assessment under section 34(3), thus not subject to the limitation period prescribed therein. The court dismissed the appeal, upholding the imposition of additional super-tax and the interpretation of sub-clause (b)(iii) conditions as necessary for determining the applicability of section 23A.

In conclusion, the judgment affirmed the importance of fulfilling all conditions under section 23A, specifically emphasizing the necessity of meeting the requirements of sub-clause (b)(iii) for a company to be considered substantially interested to the public and the legality of imposing additional super-tax under the Act.