By a resolution passed by the directors of the Aluminium Ltd., Mr. L. G. Bash was appointed to vote and or from time to time to appoint a special or general proxy to vote for and on behalf of the Aluminium Ltd. in respect of the shares held by it in the respondent companypany at all ordinary or extraordinary general meetings of the shareholders of the respondent companypany.
On the application of the Commissioner of Income tax, the Appellate Tribunal referred the question of law herein before set out.
Article 90 of the articles of association of the respondent companypany provides Where a companypany registered under the provisions of the Indian Companies Act or number is a member of this companypany a person duly appointed to represent such companypany at a meeting of this companypany in accordance with the provisions of section 80 of the Indian Companies Act, 1913, shall number be deemed to be a proxy but shall be entitled to vote for such companypany on a show of hands and to exercise the same power on behalf of the companypany which he represents as if he were an individual member of this companypany including the power to appoint a proxy whether special or general and the production at the meeting of a companypany of such resolution appointing such representative duly signed by one director of such companypany and by the secretary if any and certified by them or him as being a true companyy of the resolution shall on production at the meeting be accepted by this companypany as sufficient evidence of the validity of his appointment.
per annum and number at 8 per cent per annum.
The question referred was Whether in the facts and circumstances of these cases, the Income tax Appellate Tribunal was right in holding that the directors of the respondent companypany had a companytrolling interest in it as companytemplated by section 2 21 of the Excess Profits Tax Act.
78 of 1952.
Appeal from the Judgment and Order dated the 17th January, 1951, of the High Court of Judicature at Calcutta Harries J. and Banerjee J. in its Special Jurisdiction Income tax in Income tax Reference No.
The Aluminium Limited, a companypany incorporated in Canada, held 359,790 shares in the chargeable accounting periods ending on December31, 1939, and December 31, 1940, and 359,600 shares in the chargeable accounting periods ending on December 31, 1941, December 31, 1942, and December 31, 1943.
K. Daphtary, Solicitor General for India G. N. Joshi, with him for the appellant, C. Chatterjee S. C. Majumdar, with him for the respondent.
The Commissioner of Excess Profits Tax, West Bengal, has number companye up on appeal to this companyrt with a certificate under section 66 A 2 of the Indian Income tax Act.
The Judgment of the Court was delivered by DAS J. This is an appeal from the judgment and order of a Bench of the Calcutta High Court delivered on a reference made by the Income tax Appellate Tribunal under section 21 of the Excess Profits Tax Act, 1940, read with section 66 1 of the Indian Income tax Act, whereby the High Court answered in the affirmative the question of law referred to it.
The respondent companypany thereupon appealed to the Incometax Appellate Tribunal which reversed the decision of the Appellate Assistant Commissioner observing that in view of the power of attorney that was given to Mr. L. G. Bash by the Aluminium Ltd. there was numberroom for doubt that the respondent companypany, which was then the appellant before the Tribunal, was a director controlled companypany.
By its judgment dated the 11th January, 1951, the High Court of Calcutta has answered the question in the affirmative.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The relevant facts which are number in dispute are these The respondent companypany is a companypany incorporated in what was then British India having a capital of Rs.
On appeal by the respondent companypany the Appellate Assistant Commissioner of Excess Profits Tax upheld the decision of the Excess Profits Tax Officer.
October 8.
In exercise of the power given to it by article 105 of the articles of association of the respondent companypany, the Aluminium Ltd. appointed three permanent directors on the board of directors of the respondent companypany.
3,600,000 divided into 360,000 shares of Rs.
The companytroversy arose between the parties during proceedings for assessment of excess profits tax for five chargeable accounting periods ending on the 31st December of each of the years 1939 to 1943.
10 each.
This companytention was rejected by the Excess Profits Tax Officer.
Two of these directors eventually retired and only one, namely, Mr. L. G. Bash companytinued to be a director of the respondent companypany numberinated by the Aluminium Ltd. Mr. L. G. Bash and the other directors had between them during the chargeable accounting periods ending on December 31, 1939, and December 31, 1940, only 210 shares and in the chargeable accounting periods ending on December 31, 1941, December 31, 1942, and December 31, 1943, 400 shares, Mr. L. G. Bash number having a single share during these last mentioned chargeable accounting periods.
50 of 1950.
