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TMI Blog1968 (6) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... 1949, before and after its amendment in 1956. Clause (iv) was recast in that year and took the shape of sub-section (2) of that section. Clause (iv), as originally stood was to this effect that: " No banking company shall carry on business in any Province of India unless it satisfies (among other conditions) that the voting rights of any one shareholder do not exceed five per cent. of the total voting rights of all the shareholders .........." The section had a proviso with which we are not concerned. As amended in 1956, sub-section (2) of section 12 stated that no person holding shares in a banking company shall, in respect of any shares held by him, exercise voting rights on poll in excess of 5 per cent. of the total voting rights of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Tribunal did not concur with that view but considered that as between P. N. Nagamanickam Chettiar and P. N. Nagamiah Gupta they held 10 per cent. of the voting rights and, therefore, it was clear that shares carrying more than fifty per cent. of the total voting power were at no time during the assessment years controlled and held by less than six persons. The result was that the Tribunal thought that the assessee was a public company in which the public were substantially interested within the meaning of section 23A of the Income-tax Act. In the circumstances, the following question has been referred to us: " Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee was a public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either he or his authorised representative may sign it. The authorisation by an assessee in this behalf is permitted by section 61 which is, that any assessee, who is entitled or required to attend before the Appellate Tribunal or any income-tax authority in connection with any proceeding under the Act, may attend by a person authorised by him in writing in this behalf. Mr. Swaminathan, for the assessee, refers to the form prescribed under section 66(1) and the terms of section 61 of the Income-tax Act and contends that the two, read together, would suggest that the Commissioner does not have the privilege of having an authorised representative, while an assessee or an Income-tax Officer would have it under the provisions of the Act. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a party in such court or Tribunal either in person or by his recognised agent or by an advocate or attorney on his behalf." This court in Subramanyan Chettiar v. Commissioner of Income-tax held that the language in a vakalath " to appear for me in the above assessment, appeal, revision, application, reference or other proceeding, to receive all notices and letters and all orders passed therein, to apply for and get return of all documents filed, copies of all papers and orders and to receive any refunds that may be due in the above proceedings," covered the authority for the advocate who held the vakalath to sign for an applicant for reference under section 66(1). The language employed to define an authorised representative in the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the total voting rights of all the members." Section 23A of the Income-tax Act provides for power to assess companies to super-tax on undistributed income in certain cases. Sub-section (9) is : " (9) Nothing contained in this section shall apply to any company in which the public are substantially interested or to a subsidiary company of such company if the whole of the share capital of such subsidiary company has been held by the parent company or by its nominees throughout the previous year." In view of this provision, section 23A is applied to what would be called controlled companies even though they may be public companies, Sub-section (9) has an Explanation and clause (iii) of this Explanation says: " Explanation 1.- For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only five per cent. of that figure, that is to say, an aggregate of ten per cent. of the total 144 votes. In other words, what learned counsel suggests is that the total voting rights should be taken for the purpose of limitation as at polling. To put it differently, P. N. Nagamanickam Chettiar and Nagamiah Gupta would each have five per cent. of 1,000 shares which would mean that each would have 50 and the remaining 16 shareholders would have 44, thus making a total of 144 votes. This will be the position at the polling and this, according to learned counsel, is the total voting rights of all the shareholders contemplated by section 12 of the Banking Companies Act. In our view, this contention cannot be accepted. It is against the plain la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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