{"id":162096,"date":"2008-06-20T00:00:00","date_gmt":"2008-06-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-vs-emtici-on-20-june-2008"},"modified":"2015-12-23T21:37:28","modified_gmt":"2015-12-23T16:07:28","slug":"commissioner-vs-emtici-on-20-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-vs-emtici-on-20-june-2008","title":{"rendered":"Commissioner vs Emtici on 20 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Commissioner vs Emtici on 20 June, 2008<\/div>\n
Bench: Jayant Patel Kureshi, Akil Kureshi<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nITR\/57\/1998\t 4\/ 13\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nINCOME\nTAX REFERENCE No. 57 of 1998\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE JAYANT PATEL  \nHONOURABLE\nMR.JUSTICE AKIL KURESHI\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nCOMMISSIONER\nOF INCOME-TAX - Applicant(s)\n \n\nVersus\n \n\nEMTICI\nENGINEERING LTD. - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nMANISH R BHATT for\nApplicant(s) : 1, \nMR RK PATEL for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE JAYANT PATEL\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE AKIL KURESHI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 20\/06\/2008 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE AKIL KURESHI)<\/p>\n
This
\n\treference at the instance of Revenue calls for consideration of
\n\tquestion of law preferred in following terms :\n<\/p>\n
\u00fdSWhether
\n\tthe Appellate Tribunal is right in law and on facts in holding that
\n\tthe assessee should be treated as a Public Limited Company?\u00fd\u00fd<\/p>\n
The
\n\tconcerned assessment year is 1985-1986. The case of the Assessee is
\n\tthat the Assessee Company is the Company in which the public are
\n\tsubstantially interested as defined under Section 2(18) of the
\n\tIncome Tax Act, 1961(Act for the short).\n<\/p>\n
On
\n\tthe other hand, the case of the Revenue is that the Assessee Company
\n\tis not covered by the definition of the Company in which public are
\n\tsubstantially interested as contained in Section 2(18) of the Act.
\n\tBefore adverting to the factual background and the legal
\n\tcontroversy, it would be useful to note statutory provisions
\n\tapplicable in the present case.\n<\/p>\n
Section
\n\t2(18) of the Act insofar as the same is relevant for our purpose
\n\treads as follows :\n<\/p>\n
\u00fdS(18)
\n“Company in which the public are substantially interested”\n<\/p>\n
– a company is said to be a company in which the public are
\nsubstantially interested –\n<\/p>\n
(a)
\nIf it is a company owned by the Government or the Reserve Bank of
\nIndia or in which not less than forty per cent of the shares are held
\n(whether singly or taken together) by the Government or the Reserve
\nBank of India or a corporation owned by that bank; or] <\/p>\n
(aa)
\nIf it is a company which is registered under section 25 of the
\nCompanies Act, 1956 (1 of 1956); or <\/p>\n
(ab)
\nIf it is a company having no share capital and if, having regard to
\nits objects, the nature and composition of its membership and other
\nrelevant considerations, it is declared by order of the Board to be a
\ncompany in which the public are substantially interested :\u00a0\n<\/p>\n
Provided
\nthat such company shall be deemed to be a company in which the public
\nare substantially interested only for such assessment year or
\nassessment years (whether commencing before the 1st day of April,
\n1971, or on or after that date) as may be specified in the
\ndeclaration;\u00a0 or]<\/p>\n
(ac)
\nIf it is a mutual benefit finance company, that is to say, a company
\nwhich carries on, as its principal business, the business of
\nacceptance of deposits from its members and which is declared by the
\nCentral Government under section 620A of the Companies Act, 1956 (1
\nof 1956), to be a Nidhi or Mutual Benefit Society; or] <\/p>\n
(b)
\nIf it is a company which is not a private company as defined in the
\nCompanies Act, 1956 (1 of 1956), and the conditions specified either
\nin item (A) or in item (B) are fulfilled, namely :-\n<\/p>\n
(A)
\nShares in the company (not being shares entitled to a fixed rate of
\ndividend whether with or without a further right to participate in
\nprofits) were, as on the last day of the relevant previous year,
\nlisted in a recognised stock exchange in India in accordance with the
\nSecurities Contracts (Regulation) Act, 1956 (42 of 1956), and any
\nrules made thereunder;\n<\/p>\n
(B)
\nShares in the company (not being shares entitled to a fixed rate of
\ndividend whether with or without a further right to participate in
\nprofits) carrying not less than fifty per cent of the voting power
\nhave been allotted unconditionally to, or acquired unconditionally
\nby, and were throughout the relevant previous year beneficially held
\nby –\n<\/p>\n
(a)
\nThe Government, or <\/p>\n
(b)
\nA corporation established by a Central, State or Provincial Act, or <\/p>\n
(c)
\nAny company to which this clause applies or any subsidiary company of
\nsuch company where  such subsidiary company fulfills the conditions
\nlaid down in clause(b) of Section 108.\n<\/p>\n
Explanation
\n\t: In its application to an Indian company whose business consists
\n\tmainly in the construction of ships or in the manufacture or
\n\tprocessing of goods or in mining or in the generation or
\n\tdistribution of electricity or any other form of power, item (B)
\n\tshall have effect as if for the words “not less than fifty per
\n\tcent”, the words “not less than forty per cent” had
\n\tbeen substituted;\u00fd\u00fd <\/p>\n
Section
\n\t108(b) of the Act reads as follows :\n<\/p>\n
\u00fdS108.\n<\/p>\n
\tNothing contained in Section 104 shall apply –\n<\/p>\n
(a)to
\n\tany company in which the public are substantially interested; or <\/p>\n
(b)
\n\tto a subsidiary company of such company if the whole of the share
\n\tcapital of such subsidiary company has been held by the parent
\n\tcompany or by its nominees throughout the previous year.\u00fd\u00fd<\/p>\n
Before
\n\tthe authorities below, the case of the Assessee Company has been
\n\tthat more than 50% shares of Assessee Company are held by  P.B.
\n\tInvestments & Trusts Ltd. and K.B. Investments Ltd. taken
\n\ttogether. These two companies are subsidiaries of VVN Manufacturing
\n\tand Investment Ltd. which is  the Company whose shares are listed on
\n\tthe stock exchange. It is also the case of Assessee that P.B.
\n\tInvestments & Trusts Ltd. and K.B. Investments Ltd. are assessed
\n\tto tax at Bombay and they have been treated as Companies covered by
\n\tthe definition of Section 2(18) of the Act. It is thus the case of
\n\tthe Assessee that P.B. Investments & Trusts Ltd. and K.B.
\n\tInvestments Ltd. are the Companies \u00fdSto which this clause applies\u00fd\u00fd
\n\tas referred to in sub-clause(c) in Section 2(18)(b)(B). It is thus
\n\tthe case of Assessee that the Assessee Company should also be
\n\ttreated as a Company covered within the definition of Section 2(18)
\n\tof the Act since more than 50% of the shares of the Assessee Company
\n\tare held by P.B. Investments & Trusts Ltd. and K.B. Investments
\n\tLtd. which are the Companies \u00fdSto which this clause applies\u00fd\u00fd.\n<\/p>\n
On
\n\tthe other hand, the case of the Revenue is that though P.B.
\n\tInvestments & Trusts Ltd. and K.B. Investments Ltd. are
\n\tcompanies which are subsidiaries of VVN Manufacturing and Investment
\n\tLtd., these Companies do not fulfill the requirement of Clause(b) of
\n\tSection 108 namely that of \u00fdSa Subsidiary Company of such company
\n\twhose whole of the share capital has been held by the parent company
\n\tor by its nominees through out the previous  year.\u00fd\u00fd It is thus the
\n\tcase of the Revenue that  P.B. Investments & Trusts Ltd. and
\n\tK.B. Investments Ltd. though are subsidiary companies of a Company
\n\t\u00fdSto which this clause applies\u00fd\u00fd nevertheless, P.B. Investments &
\n\tTrusts Ltd. and K.B. Investments Ltd.  do not fulfill the further
\n\trequirement of such Companies which fulfill the conditions laid down
\n\tin clause(b) of Section 108. It is on this premise that the Revenue
\n\tcontends that Assessee Company is not a Company in which public are
\n\tsubstantially interested as defined in Section 2(18) of the Act. The
\n\tAssessing Officer in his order dated 24.3.1988 decided this issue
\n\tagainst the Assessee and in favour of the Revenue on the following
\n\tpremises :\n<\/p>\n
\u00fdSIn
\n\tthis context, it has to be seen as to whether P.B. & K.B. are
\n\tthe companies referred to in sub-clause(c). Sub-clause(c) refers to
\n\ta \u00fdSCompany to which this clause applies\u00fd\u00fd. This clause applies to
\n\tthe companies referred to in sub-clauses (a), (aa), (ab) & (ac)
\n\tbelonging to the special categories of the companies, and, this
\n\tclause also applies to the companies referred to at items (A) and
\n\t(B), viz, companies whose shares are listed on the Stock exchange
\n\tand companies whose shares are held by the Government and companies
\n\twhose share are held by Statutory Corporations. That is all.\n<\/p>\n
4.10\t\tP.B.\n<\/p>\n
\t& K.B. are, therefore not the companies referred to in first
\n\tcondition of sub-clause(c). In fact, P.B. & K.B. have themselves
\n\tbeen treated as covered within the terms of section 2(18) because
\n\ttheir shares are held by VVN, which is \u00fdSa company to which this
\n\tclause applies\u00fd\u00fd, because shares of VVN are listed on the Stock
\n\tExchange. In the circumstances, the fact that more than 51% shares
\n\tof Emtici Engg. Co. Ltd. are held by P.B. & K.B., taken
\n\ttogether, does not entitle the Emtici to be covered under the
\n\tdefinition of Section 2(18). Thus, the case is not covered under the
\n\tfirst condition of sub-clause(c).\n<\/p>\n
4.11\t\tThe
\n\tfacts of the case certainly draw us to the other condition referred
\n\tto in Sub-clause(c). P.B. and K.B. are subsidiary companies of a
\n\tcompany \u00fdSto which this clause applies\u00fd\u00fd. We are therefore
\n\trequired to examine the issue whether whole of the equity shares
\n\tcapital of these two subsidiary companies are held by VVN or not. It
\n\tis observed that only 4 out of 6 Equity shares of Rs. 100 each of
\n\tP.B. Investments & Trust Ltd. are fled by VVN Mfg. & Investa
\n\tLtd. It is further observed that only 3 out of 5 Equity shares of
\n\tRs. 100 each of K.B. Investments Ltd. are held by VVN Mfg. and
\n\tInvesta Ltd. Thus, it can be said that VVN Mfg. & Investa Ltd.
\n\twhich is a widely held company is not holding whole of the Equity
\n\tshare capital of any of the two companies mentioned before which is
\n\tthe second conduction of sub-clause(c) of Section 2(18)(B) of the
\n\tAct.\u00fd\u00fd <\/p>\n
CIT(Appeals)
\n\tin its appellate order also upheld the stand of the Revenue,
\n\tnegatived the contention of Assessee, approved the view of the
\n\tAssessing Officer and came to the conclusion that Assessee is not a
\n\tCompany covered under Section 2(18) of the Act and thus it is not a
\n\tCompany in which public are substantially interested. The Income tax
\n\tTribunal however, reversed the decision of the authorities below and
\n\theld that the Assessee Company is covered under Section 2(18) of the
\n\tAct. Reasoning of the Tribunal was as follows :\n<\/p>\n
\u00fdSIn
\n\tour view, the conditions which have been emphasised by us in the
\n\tabove section are fully applicable to the assessee. It is not
\n\tdisputed that the assessee is not a private company so defined in
\n\tthe Companies Act, 1956 as section 43A of the Companies Act, 1956
\n\tclearly rules out such possibility. More than 50% of the shares of
\n\tthe assessee company belongs to two public hase companies i.e. P.B.
\n\tInvestments and Trusts Ltd. and K.B. Investments Ltd. In our view,
\n\tany company to which this clause applies is any public limited
\n\tcompany and in this case both P.B. Investments  and Trusts Ltd. and
\n\tK.B. Investments Ltd. are public companies. In view of the above, we
\n\tallow the contention of the assessee.\u00fd\u00fd<\/p>\n
Before
\n\tadverting to the rival contentions and seeking to resolve the legal
\n\tcontroversies, few undisputed facts emerging from the record may be
\n\tnoted :\n<\/p>\n
1)\tP.B.\n<\/p>\n
\tInvestments & Trusts Ltd. and K.B. Investments Ltd. between them
\n\tare holding more than 50% of shares of the Assessee Company.\n<\/p>\n
2)\tP.B.\n<\/p>\n
\tInvestments & Trusts Ltd. and K.B. Investments Ltd. are treated
\n\tas Companies covered under Section 2(18) of the Act and are thus
\n\tCompanies in which the public are substantially interested as
\n\tdefined under the said provision.\n<\/p>\n
3)\tP.B.\n<\/p>\n
\tInvestments & Trusts Ltd. and K.B. Investments Ltd. are
\n\tsubsidiaries of VVN Manufacturing and Investment Ltd, however, it is
\n\tequally undisputed that P.B. Investments & Trusts Ltd. and K.B.
\n\tInvestments Ltd. in their relation to VVN Manufacturing and
\n\tInvestment Ltd do not satisfy the requirement of clause(b) of
\n\tSection 108. In other words,  VVN Manufacturing and Investment Ltd
\n\tdoes not hold the whole of the share capital of P.B. Investments &
\n\tTrusts Ltd. or K.B. Investments Ltd.\n<\/p>\n
In
\n\tview of the above background, learned Counsel Shri Bhatt appearing
\n\tfor the Revenue submitted that the Tribunal erred in interpreting
\n\tsub-clause(c) in Section 2(18)(b)(B) of the Act. It was contended
\n\tthat since  P.B. Investments & Trusts Ltd. and K.B. Investments
\n\tLtd are subsidiaries of  VVN Manufacturing and Investment Ltd and
\n\tsuch subsidiary companies do not fulfill the conditions laid down in
\n\tclause(b) of Section 108, the Assessee Company whose more than 50%
\n\tshares are held by  P.B. Investments & Trusts Ltd. and K.B.
\n\tInvestments Ltd., cannot derive benefit of  sub-clause(c) in Section
\n\t2(18)(b)(B) of the Act.\n<\/p>\n
On
\n\tthe other hand, learned advocate Mr. Bhargav Karia appearing for the
\n\tAssessee contended that the correct interpretation of  sub-clause(c)
\n\tin Section 2(18)(b)(B) of the Act would be that \u00fdSany company to
\n\twhich this clause applies\u00fd\u00fd would also include any company which
\n\tmay be subsidiary of a holding Company. Since   P.B. Investments &
\n\tTrusts Ltd. and K.B. Investments Ltd. are Companies \u00fdSto which this
\n\tclause applies\u00fd\u00fd and since between  P.B. Investments & Trusts
\n\tLtd. and K.B. Investments Ltd. more than 50% shares of Assessee
\n\tCompany are held, the Assessee Company should be deemed to be one in
\n\twhich public is substantially interested as required under Section
\n\t2(18) of the Act.\n<\/p>\n
Having
\n\tthus heard the learned advocates appearing for the parties, and
\n\thaving taken note of the undisputed facts emerging from the record,
\n\tthe entire question boils down to the interpretation of
\n\tsub-clause(c) in Section 2(18)(b)(B) of the Act. At the outset, it
\n\tmay be recalled that admittedly  P.B. Investments & Trusts Ltd.
\n\tand K.B. Investments Ltd. are subsidiaries of  VVN Manufacturing and
\n\tInvestment Ltd, but it is equally undisputed that  VVN Manufacturing
\n\tand Investment Ltd. does not hold the whole of the share capital of
\n\tsuch subsidiary companies. In that view of the matter, learned
\n\tCounsel Shri Bhatt for the Revenue would be justified in contending
\n\tthat in case of Assessee Company, second part of  sub-clause(c) in
\n\tSection 2(18)(b)(B) of the Act namely; that of \u00fdSany subsidiary
\n\tcompany of such company where such subsidiary company fulfills the
\n\tconditions laid down in clause(b) of Section 108\u00fd\u00fd does not stand
\n\tfulfilled. If P.B. Investments & Trusts Ltd. and K.B.
\n\tInvestments Ltd  were themselves not Companies \u00fd\u00fdto which this
\n\tclause applies\u00fd\u00fd as provided in sub-clause(c) in Section
\n\t2(18)(b)(B) of the Act, the Assessee Company would not be in a
\n\tposition to get the benefit of the said provision. However, we find
\n\tthat admittedly, P.B. Investments & Trusts Ltd. and K.B.
\n\tInvestments Ltd  are the companies to which the said clause applies.\n<\/p>\n
Upon
\n\tcareful reading of  sub-clause(c) in Section 2(18)(b)(B) of the Act,
\n\tit would emerge that the same is in two parts. Requirements of
\n\tsub-clause(c) could be fulfilled either by \u00fdSany company to which
\n\tthis clause applies\u00fd\u00fd OR \u00fdSany subsidiary company of such company
\n\twhere such subsidiary company fulfills the conditions laid down in
\n\tclause(b) of Section 108.\u00fd\u00fd It can thus be seen that to fulfill the
\n\trequirement noted above, it would be sufficient if not less than 50%
\n\tof the shares of the Assessee Company have been allotted
\n\tunconditionally to or acquired unconditionally by and held
\n\tthroughout the relevant previous year by a holding Company. For
\n\tcompany \u00fdSto which this clause applies\u00fd\u00fd, alternatively, the
\n\tcondition could also be fulfilled if more than 50% of the shares
\n\thave been alloted or acquired by any subsidiary company of such
\n\tcompany (i.e. any company to which such clause applies) where such
\n\tsubsidiary company fulfills conditions laid down in clause(b) of
\n\tSection 108. Two parts of sub-clause(c) in Section 2(18)(b)(B) of
\n\tthe Act, are separate and independent of each other. If the company
\n\twhich is subsidiary company of holding company but which satisfies
\n\tthe requirement of being \u00fdSany company to which this clause
\n\tapplies\u00fd\u00fd, need not thereafter, fulfill the further requirement of
\n\tbeing a Company  whose whole of the share capital has been held by
\n\tthe parent company as provided in Section 108(b). In other words,
\n\tthere is nothing in the first part of sub-clause(c) in Section
\n\t2(18)(b)(B) of the Act, namely \u00fdSany company to which this clause
\n\tapplies\u00fd\u00fd which would exclude the company which is a subsidiary of
\n\ta parent company. Thus if a company which is subsidiary of a parent
\n\tcompany but which independently fulfills the requirement of being
\n\tCompany \u00fdSto which this clause applies\u00fd\u00fd requirement of
\n\tsub-clause(c) in Section 2(18)(b)(B) of the Act, stands fulfilled.\n<\/p>\n
With
\n\tthis clarity in mind, if one reverts back to the present case, it is
\n\tan admitted position that between P.B. Investments & Trusts Ltd.
\n\tand K.B. Investments Ltd., the two companies hold more than 50% of
\n\tthe capital share of the Assessee Company. P.B. Investments &
\n\tTrusts Ltd. and K.B. Investments Ltd   are the companies \u00fdSto which
\n\tthis clause applies\u00fd\u00fd as per  sub-clause(c) in Section 2(18)(b)(B)
\n\tof the Act. This being the case so far as Assessee company is
\n\tconcerned, it’s not less than 50% of the shares having been
\n\tunconditionally alloted to P.B. Investments & Trusts Ltd. and
\n\tK.B. Investments Ltd. together and since P.B. Investments &
\n\tTrusts Ltd. and K.B. Investments Ltd  are companies \u00fdSto which this
\n\tclause applies\u00fd\u00fd, the Assessee Company stands covered within the
\n\tdefinition of Section 2(18) of the Act. In our opinion, the Tribunal
\n\twas justified in so holding. We thus answer the question in
\n\taffirmative i.e. against the Revenue and in favour of Assessee.\n<\/p>\n
Reference
\n\tstands disposed of accordingly.\n<\/p>\n
(Jayant
\nPatel,J.)<\/p>\n
(Akil
\nKureshi,J.)<\/p>\n
(raghu)<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Commissioner vs Emtici on 20 June, 2008 Bench: Jayant Patel Kureshi, Akil Kureshi ITR\/57\/1998 4\/ 13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD INCOME TAX REFERENCE No. 57 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-162096","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nCommissioner vs Emtici on 20 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/commissioner-vs-emtici-on-20-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Commissioner vs Emtici on 20 June, 2008 - 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