Ramaswami J. - (1.) This appeal is brought from the judgment o the Calcutta High Court dated March 10, 1964, in Income-tax Reference No. 116 of 1960.
(2.) The relevant assessment year is 1950-51 and the corresponding previous year ended on March 31, 1950. In respect of the said assessment year the Income-tax Officer made an order dated March 15, 1956, under section 23A(1) of the Income Tax Act, 1922 (hereinafter referred to as "the Act"). By the said order the Income-tax Officer held that Rs. 35,476 should be deemed as having been distributed as dividend by the respondent and the proportionate share thereof of each shareholder should be included in the total income of such shareholder for the purpose of assessing his total income. The balance-sheet of the respondent disclosed past losses amounting to Rs. 45,692 which had been brought forward. The Income-tax Officer held that such losses resulted from the failure of the respondent in not properly accounting for some bonus shares received by it. The Income-tax Officer recomputed the losses of the respondent in earlier years by valuing the bonus shares received by the respondent at nil and, accordingly, held that the losses amounted to Rs. 6,509. The aforesaid computation was made mainly by disallowing Rs. 37,500 from the debits in the share account and adding Rs. 10,151 on account of grossing up of dividends and interest on securities. The sum of Rs. 37,500 represented the cost of bonus shares at face value which had been debited in the share account by the respondent. The respondent took the matter in appeal to the Appellate Assistant Commissioner who, by his order dated May 11, 1957, cancelled the order of the Income-tax Officer under section 23A. The Appellate Assistant Commissioner took the view that the losses of the earlier accounting period amounted to Rs. 6,509, the income-tax chargeable for the relevant assessment year amounted to Rs. 17,829 and the subscribed capital of the respondent amounted to Rs. 6,00,000. The Appellate Assistant Commissioner therefore held that the profits of the respondent cannot be held to be adequate to justify the application of the provisions of section 23A of the Act. Thereafter, the Commissioner of Income-tax preferred an appeal to the Appellate Tribunal which set aside the order of the Appellate Assistant Commissioner and restored the order of the Income-tax Officer under section 23A. The Appellate Tribunal dealt with the question of past losses and the accounting of bonus shares and agreed with the findings of the Income-tax Officer and held that the past losses amounted to Rs. 6,509. The Appellate Tribunal further held that the Appellate Assistant Commissioner should not have taken into consideration the actual tax liability of Rs. 17,829. The Appellate Tribunal observed that the Appellate Assistant Commissioner was wrong in taking into consideration the subscribed and the paid up capital for the purpose of computing it with the profits made in the year of account. Under section 66(1) of the Act the Appellate Tribunal drew up a statement of the case and referred the following question of law for the opinion of the High Court : "(1) Whether, on the facts and in the circumstances of the case, the profits made by the applicant in the year of account did not attract the application of section 23A (1) (2) Whether, on the facts and in the circumstances of the case, the tax liability for the assessment year under consideration, amounting to Rs. 17,829 should be taken into consideration for the purpose of determining whether an order under section 23A (1) should be made on the applicant -
(3.) By its judgment dated March 10, 1964, the High Court answered the first question in the negative. As regards the second question, it was conceded by counsel on behalf of the respondent that the Appellate Assistant Commissioner should not have taken into consideration the tax liability of Rs. 17,829 for his finding that no fund was available for payment of dividend. The High Court answered question No. 2 also in the negative in view of the concession made by counsel on behalf of the respondent.;