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1998 DIGILAW 1258 (MAD)

Commissioner of Income Tax v. Indian Potash Limited

1998-09-16

A.SUBBULAKSHMY, R.JAYASIMHA BABU

body1998
Judgment :- R. JAYASIMHA BABU, J. The question that is proposed by the Revenue in our opinion is a question for which the answer is evident to any reasonable person who reads the relevant statutory provision in a reasonable way. The statutory provision is section 2(18)(b)(B) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). Section 2(18) of the Act defines "company in which the public are substantially interested". The company is regarded as one in which the public are substantially interested, inter alia, if the "shares in the company (not being shares entitled to a fixed rate of dividend whether with or without a further right to participate in profits) carrying not less than fifty per cent. of the voting power have been allotted unconditionally to, or acquired unconditionally by, and were throughout the relevant previous year beneficially held by - (a) the Government, or (b) a Corporation established by a Central, State or Provincial Act, or (c) any company to which this clause applies or any subsidiary company of such company where such subsidiary company fulfils the conditions laid down in clause (b) of section 108" and where the public are not substantially interested in a company, to which the clause does not apply, the said shares were, during the relevant accounting year, freely transferable by the shareholder to the other members of the public when the affairs of the company or the shares carrying fifty per cent. of the total voting power, had at no time during the relevant previous year been controlled or held by five or less persons. The Revenue's contention is that the reference to the Government, statutory corporation, company, and the public must be read disjunctively and that it is only when 50 per cent. or more of the shares are held by the Government alone, or by a statutory corporation alone, or by a company by itself, or by public, that the company can be regarded as one in which public are substantially interested. This argument has only to be stated to be rejected, having regard to the object of the section and the language employed in section 2(18)(b)(B) of the Act. The statutory provision refers to an unconditional holding of 50 per cent. or more of the shares with voting power attached to these shares with the further requirement that such shares shall be freely transferable. The statutory provision refers to an unconditional holding of 50 per cent. or more of the shares with voting power attached to these shares with the further requirement that such shares shall be freely transferable. The holder of these shares could be any one of the entities mentioned in that clause, viz., the Government, statutory corporation, company or public. Sub-clauses (a) to (c) of section 2(18)(b)(B) of the Act refer to the persons who hold the shares. There is no requirement therein, on these individuals or legal entities, to hold the shares to the exclusion of others mentioned in other parts of section 2(18)(b)(B) of the Act. The use of the word "or" after each and every sub-clause is only to indicate that the shares will be held by any one of those listed legal entities or individuals and not that they should be held by one to the exclusion of others. No plausible reason for adopting the construction proposed by the Revenue, which could be regarded as being the object sought to be achieved by the provision, has been suggested to us. The argument advanced is solely on the basis of the word "or" employed after each and every sub-category that each sub-category must be regarded as exclusive and not capable of including any of the other categories for the purpose of computing 50 per cent. of the voting power of the company.The Tribunal was quite right in pointing out in its order that the provision had never been construed in the way in which the Commissioner had construed the provision. It also expressed its view that the reference application by the Commissioner was needless. We entirely agree with the Tribunal. Counsel for the Revenue contended that this court is required to call for a reference whenever any question is raised which can be regarded as a question of law, even if the answer to such a question is obvious, and it is ascertainable from a mere reading of the provision in the context of the other provisions of the Act, we cannot agree with the submission of counsel. The court is not required blindly to call for a reference only for the purpose of providing an answer which is obvious, such answer to be provided after several years of waiting and after putting the assessee to the trouble of having to appear before the court to contest the proceedings. The question proposed by the Revenue or by an assessee should be one which calls for a debate or deeper examination. Merely putting forth a construction which the section is not capable of bearing does not amount to a referable question of law. The Tribunal has found that the assessee company's shares were held by public sector undertakings as also by the co-operative sector. It is rightly held that for the purpose of section 2(18)(b)(B) of the Act, that the shares held by all the individuals or entities mentioned in sub-clauses (a) to (c) of the sub-section are required to be taken cumulatively. There is no error in that view of the Tribunal, which view is one which can be said to be evident, from a mere reading of the statutory provision. The enumeration of the entities and individuals in sub-clauses (a) to (c) is in the context of defining a company in which the public are substantially interested. The interest of the public in the company is regarded as having been sufficiently established, if the shares are held by any one or more of the individuals or entities mentioned in sub-clauses (a) to (c). The object of the definition here is with regard to the substantial interest of the public in the company. The shares held by the Government are regarded as indicative of substantial interest of the public in the company. Simultaneously, the shares held by a statutory corporation or a company are also regarded as indication of substantial interest of public in the company. No useful purpose whatever will be served, by reading the section in the manner sought to be done by the Revenue to hold that unless the Government holds 50 per cent. of the shares in the company, the company cannot be regarded as one in which the public are substantially interested. No useful purpose whatever will be served, by reading the section in the manner sought to be done by the Revenue to hold that unless the Government holds 50 per cent. of the shares in the company, the company cannot be regarded as one in which the public are substantially interested. When, by aggregating the shares held by the Government, those held by the statutory corporation, and those by companies or by the public, all of whom are regarded, in the definition clause, as persons or entities who form part of the public and whose holding in the company is indicative of the interest of the public in the company, such shareholding exceeds 50 per cent. specified in clause (B), clearly the company is one in which the public are substantially interested. It is not sufficient that the public should have an interest, but the interest has to be substantial. It is regarded as substantial, when the shares so held aggregate to 50 per cent. or more than 50 per cent. Such shareholding may be by any one of the individuals or entities mentioned in sub-clauses (a) to (c) of clause (B) of section 2(18)(b) of the Act, singly or by two or more of them together.The questions proposed therefore do not merit reference and we decline to call for a reference. Counsel for the Revenue invited our attention to the order made in T.C.P. Nos. 135 to 138 of 1997 on July 29, 1997, wherein the court called for a reference on this question. We have perused the order of the court. We do not find any reasons having been set out in the order, except the court's view that the question arises out of the order of the Tribunal, we could not derive any assistance from that order. In the result, the tax cases petitions are dismissed.