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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 ..... nce 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 the shareholders of the banking company. Though, in substance and effect, the amended provision is the same as the unamended one, the former brings out the intent more clearly. By an application of the above provision, the Tribunal held that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal 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 company within the meaning of the Explanation to section 23A of the Income-tax Act ? " There is before us also a further question which is in the nature of a preliminary objection to the validity of the reference, viz., whether the petition filed before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 argument does not take into account section 5A(8) and the rules made thereunder. Sub-rule (ii) of rule 2 of the Appellate Tribunal Rules, 1946, framed under section 5A(8) defines an authorised representative in relation to an income-tax authority who is a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Appellate Tribunal Rules is a fortiori, for, the authorisation is not merely for appearance and pleading but also for acting. We are of the view that the Income-tax Officer who signed the reference petition was competent to do so. A further point is raised for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 the purposes of this section, a company shall be deemed to be a company in which the public are substantially interested--...... (iii) the affairs of the company or the shares carrying more than fifty per cent. of the total voting power were at no time during the previ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 language employed by section 12 and further, to accept that contention, would mean application of the limitation twice over. The provision speaks of not exceeding five per cent. of the total voting rights of all the shareholders which obviously, in our opinion, means tota ..... X X X X Extracts X X X X X X X X Extracts X X X X
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