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TMI Blog1974 (11) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not beneficially held by the public at the end of the relevant previous year and that the shares of the assessee-company were not the subject of dealings in any stock exchange and the shares were not in fact freely transferable by the holders to other members of the public. On appeal, the Appellate Assistant Commissioner was of the view that one of the shareholders of the company, namely, the Saroja Mills, was a company in which the public were substantially interested and since this company held more than 25 per cent. of the voting power in the assessee-company, the first condition relating to 25 per cent. of the voting power being vested in the public is satisfied. The Appellate Assistant Commissioner was also of the view that clause 13 of the articles of association of the company, which vested in the directors a discretion in the matter of transfer of shares, does not in any way go to show that the shares were not freely transferable to the other members of the public. In that view, he held that section 23A of the Act is not applicable. The revenue preferred an appeal to the Tribunal. Before the Tribunal, the assessee filed a statement listing out the transfers of shares ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision reported in East India Corporation Ltd. v. Commissioner of Income-tax , that in testing whether the company is one in which the public are substantially interested transfers of shares even subsequent to the relevant previous year could be taken into account, like the transfer of shares during and prior to that period. In that view, this court observed : " We are, therefore, of the view that the Tribunal will have to assess the relative facts over again to see whether the assessee is a company in which the public are substantially interested more especially when we have not accepted the Tribunal's view that only transfers prior to the end of the relevant previous year could be taken into account. We do not have before us the necessary facts and circumstances in the light of which we can ourselves express an opinion as to whether the transfers of shares between November, 1955 and June, 1959, are to members of the public. " In the course of the proceedings under section 66(5) of the Act the Tribunal felt that in order to give a satisfactory finding on the question of free transferability of the shares to the public, further facts would have to be found and that it would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome up for consideration in Income-tax Appellate Tribunal v. S. C. Cambatta and Co. , Rajkumar Mills Ltd. v. Income-tax Appellate Tribunal , Hukumchand Mills Ltd. v. Commissioner of Income-tax and Esthuri Aswathiah v. Commissioner of Income-tax , among other cases. In Income-tax Appellate Tribunal v. S. C. Cambatta and Co., the question for consideration was as to whether there could be a reference made to the High Court under section 66 out of an order made by the Tribunal under section 66(5). It was held : "........ reading section 33(5) and section 66(9) together, the scheme is fairly clear that when a reference is made to the High Court either under section 66(1) or section 66(2) the decision of the Appellate Tribunal cannot be looked upon as final ; in other words, the appeal is not finally disposed of. It is only when the High Court decides the case, exercises its advisory jurisdiction, and gives directions to the Tribunal on questions of law, and the Tribunal reconsiders the matter and decides it, that the appeal is finally disposed of. In one sense, as the learned judge rightly points out, it may be said that on the High Court giving its decision there is a continuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al remanding the matter to the Income-tax Officer for considering the question whether section 4(1)(a) was applicable in respect of the sum of Rs. 5,80,069. It was held that the Tribunal would have had jurisdiction under section 33 on the first occasion when the matter came up for hearing to remand the matter to the Income-tax Officer to consider the question of the applicability of section 4(1)(a). But, neither the Appellate Assistant Commissioner nor the Tribunal had any occasion to consider that question because they were agreeing with the Income-tax Officer on the question of applicability of section 4(1)(c). When the High Court held that section 4(1)(c) was not applicable and the matter was dealt with by the Tribunal under section 66(5), it had the same powers under section 33 and, therefore, the Tribunal was within its jurisdiction in remanding the matter to the Income-tax Officer for the purpose of consideration of the applicability of section 4(1)(a), in respect of the sum of Rs. 5,80,069. Hukumchand Mills Ltd. v. Commissioner of Income-tax dealt with the powers of the Tribunal under section 33. It was held that the Tribunal has sufficient power under section 33(4) to enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the decision of the High Court, the Tribunal exercises its appellate powers under section 33 and the order made is also one falling under section 33(4). Therefore, all the powers of the Tribunal that could have been exercised by it at the time of the original hearing of the appeal could also be exercised while disposing of the appeal after the decision of the High Court. But the questions that could be decided are those which were in dispute before the High Court in the reference and which have to be decided in accordance with the decision of the High Court. In some cases, as in Rajkumar Mills Ltd. v. Income-tax Appellate Tribunal , even those points which were not decided on the earlier occasion and which could not have been referred to the High Court, could be considered by the Tribunal, if they could have been considered on the earlier occasion. In regard to those questions also, the Tribunal shall have all the poers under section 33 including the power to remand. Thus, what are points that could be decided in the proceedings under section 66(5) would depend on the facts and circumstances of each case. If a question of law arises from the subsequent order made by the Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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