MARTIN BURN LTD. VS COMMISSIONER OF INCOME TAX, 1993 PTD-SUPREME-COURT-INDIA 915 (1992)

(Appeals from the judgment and order dated February 8, 1978 of the Calcutta High Court in Income-Tax Reference No. 292 of 1975).

Income-tax---

----Commissioner--- Revision---Appeal to Appellate Tribunal ---Remand to Commissioner--- Tribunal has power ---Indian Income Tax Act, 1961, Ss.254(1) & 263---Indian Companies Act, 1956, Ss.87 & 90.

Long before the commencement of the Companies Act, 1956, the appellant-company had issued equity and preference shares both having voting rights. The Income Tax Officer treated the company as one in which the public were substantially interested. In revision, the Commissioner passed an order directing the Officer to treat the appellant company as one in which the public were not substantially interested as the voting rights could not be exercised by holders of preference shares in view of section 87 of the Companies Act. On appeal the Appellate Tribunal was of the opinion that section 87 would not apply in view of section 90 and of the fact that those shares were issued prior to the commencement of the Companies Act, 1956. The Tribunal however instead of disposing of the appeal remanded the matter to the Commissioner for passing a fresh order and on a reference the High Court held that the Tribunal had the power to make the remand order in the manner it had done: see (1978) 114 ITR 939 (Cal.). The Department took the matter in appeal to the Supreme Court. The Supreme Court dismissed the appeal holding that the decision of the High Court was unexceptionable.

Hukumchand Mills Ltd. v. CIT (1967) 63 ITR 232 (SC) and CIT v. Assam Travels Shipping Service (1993) 199 ITR 1 (SC) fol.

Martin Burn Ltd. v. CIT (1978) 114 ITR 939.aflirmed.

Vibhu Bakhru, Ms. Anuradha Dutt, Ms. Vijayalarmi Menon and Ms.L. Mridula Ray, Advocates forAppellant.

S. Rajappa and Ms: A. Subhashini, Advocates for Respondent.

ORDER

DR. A.S. ANAND, J.---These appeals were filed on a certificate of fitness granted by the High Court of Calcutta, vide order dated November 29, 1978, in Income-tax Reference No. 292 of 1975.

In a reference under section 256(1) of the Income Tax Act, 1961; the following question was referred for the opinion of the High Court (see (1978) 14 ITR 939; 940):

Whether, on the facts and in the circumstances of this case, the Tribunal was justified in law in restoring the appeals once again to the file of the Additional Commissioner of Income-Tax, West Bengal-I, Calcutta, for passing fresh orders under section 263 of the Income Tax Act, 1961, after making further investigation? .

After detailed discussion, Sabyasachi Mukharji, J. (as his Lordship then was), speaking for the Bench held that the Tribunal had power to make the remand in the manner it had done. The question was answered in the affirmative and in favour of the Revenue.

After hearing learned counsel for the parties we are of the opinion that the answer rendered by the High Court of Calcutta to the question referred to it is unexceptionable and the view of the High Court is in consonance with the law laid down in Hukumchand Mills Ltd. v. CIT (1967) 63 ITR 232 (SC) acid in Civil Appeals Nos. 2735 and 2736 of 1977, decided on September 24,1992 (CIT v. Assam Travels Shipping Service (1993)199 ITR 1).

Consequently both the appeals fail and are dismissed. There shall, be no order as to costs.

Appeals dismissed. M.B.A./2275/T