JUDGMENT Sen, J.: In this Reference under Section 256(1) of the Income-tax Act, 1961 at the instance of the Commissioner of Income-tax the question which arises for determination is whether the assessee Eastern Equipment and Sales Limited, in the assessment year 1962-63, came within the mischief Section 104 of the Act. 2. The facts admitted and/or found are that the assessee is a limited company in which two other limited companies, namely, Messrs. Western Bengal Coal Fields Limited und Messrs. Central India Coal Fields Limited held 80% of the shares at the material time. The shareholders of the said two-holding companies were, inter alia, the Unit Trust, some Scheduled Banks, the Life Insurance Corporation and other Insurance Companies. A list of the share-holders in the said two holding companies has been annexed to the statement of ease being annexure "A". 3. In the assessment year in question the assessee had declared only Rs. 22,500/- as dividend, whereas if Section 104 of the Income-tax Act, 1961 was applicable the assessee should have declared 60% of its distributable surplus, namely, Rs. 60,737/- 4. In the proceedings under Section 104 before the Income-tax Officer it was contended that the assessee was a public limited company in which the public were substantially interested within the meaning of Section 2 (18) of the Income-tax Act, 1961. The contentions of the assessee were rejected and additional super-tax under section 104 was levied. 5. On appeal it was held by the Appellate Assistant Commissioner that the assessee was a company in which the public were substantially interested. The Appellate Commissioner, relied on the decision of the Supreme Court in the case of (1) Shree Changdeo Sugar Mills Limited v. Commissioner of Income-tax, Bombay, reported in 41 Income-tax Reports, page 667 and allowed the appeal. 6. The Revenue preferred a further appeal to the Tribunal. It was submitted on behalf of the Revenue before the Tribunal that the public were not substantially interested in the assessee inasmuch as the assessee company had been described in the Report of the Monopolies Enquiry Commission as being a company under the Birla group and further the said two holding companies were also described in the said Report all belonging to that group. In support reliance was placed on a decision of the Bombay High Court in the case of (2) Indian Hume Pipe Co. In support reliance was placed on a decision of the Bombay High Court in the case of (2) Indian Hume Pipe Co. v. Commissioner of Income-tax, reported in 74 ITR 760, 7. It was contended by the assessee on the other hand that the assessee was a company within the meaning of section 2(18) of the Act and as such the decision of the Bombay High Court had no application. 8. The Tribunal came the conclusion that the assessee was a company in which the public were substantially interested. 9. It was found by the Tribunal that the eon tents of the Report of the: Monopolies Enquiry Commission were not relevant inasmuch as the shares of the holding companies were quoted in the Stock Exchange and there were frequent changes in such share holding. The commission started functioning only in May, 1964 whereas the relevant assessment year was 1962-63 of which the previous year was even earlier. The Tribunal held that the: shareholdings in the said two holding companies at the relevant time could not be related to the said Report. 10. The Tribunal concluded that there was no material before it to disturb the findings of the Appellate Assistant Commissioner that the two holding companies were public companies within the meaning of section 2(18) of the Income-tax Act, 1961. 11. The question which has been referred to us from this order of the Tribunal is as follows :- "Whether, on the facts and in the circumstances of the case, the assessee was a company in which the public were substantially interested within the meaning of section 2(18) of the Income-tax Act, 1961 in view of 80% of its shares being held by the two companies, Western Bengal Coal Fields Ltd. and Central India Coal Fields Ltd. ?" Mr. B.L. Pal, learned Counsel for the Revenue, contended before us at the hearing that the Tribunal had proceeded only on the basis that the two holding companies were public limited companies within the meaning of the Companies Act, 1956 and that the Tribunal did not apply its mind to the question whether the public in fact were substantially interested in the said two holding companies. Even assuming that this particular question had not been referred, on the authority of the well known decision in the case of (3) Commission of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., Mr. Even assuming that this particular question had not been referred, on the authority of the well known decision in the case of (3) Commission of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., Mr. Pal contended that the question how being agitated by him was in issue before the Tribunal and could be stated to be one of the aspects of the question actually referred. 12. Mr. Pal, however, did not dispute that if it was found that the public were in fact substantially interested in the said two holding companies and if it was held that they were companies within the meaning of section 2(18) of the Income-tax Act, 1961, then it would follow that the assessee was also a public company within the meaning of that section. 13. This proposition is concluded by the decision of the Supreme Court reported in 41 ITR at page 667 as aforesaid and also by another decision of the Supreme Court in the case of (4) Pilani Investment Corporation Ltd. v. Commissioner of Income-tax (Central), Calcutta, reported in 89 ITR 53. In an unreported decision of this Court in Appeal No. 117 1971 (5) (The Income tax Officer, 'C' Ward, Companies Dist. I. Calcutta & others v. Padmavati Raje Cotton Mills Ltd.) the same point has been decided. 14. Dr. Debi Pal learned counsel on behalf of the assessee relied on the aforesaid decisions in support of his contentions. He further contended that in the instant case there was specific finding of the Tribunal that the two holding companies were companies in which the public were substantially interested and that they came within the ambit of section 2(18) of the Income-tax Act. 1961 and that as such the question is a question of fact which has been concluded by the finding of the Tribunal. 15. It appears to us that the contentions of the assessee should succeed in the instant case. We find that complete lists of the shareholders of the two holding companies were before the Tribunal and were considered. It further appears that the only evidence adduced by the Revenue before the Tribunal, namely the Report of the Monopolies Enquiry Commission was rejected by the Tribunal. We find that complete lists of the shareholders of the two holding companies were before the Tribunal and were considered. It further appears that the only evidence adduced by the Revenue before the Tribunal, namely the Report of the Monopolies Enquiry Commission was rejected by the Tribunal. The Tribunal upheld the finding of the Appellate Assistant Commissioner and noted that the Revenue had never contended that the two holding companies were not companies in which the public were substantially interested before the Appellate Commissioner. 16. The above findings of the Tribunal have not been challenged as perverse or as based on no evidence or irrelevant evidence. 17. In this view we answer the question referred to us in the affirmative and in favour of the assessee. There will be no order as to costs. Deb, J.; I agree.