Dipak Kumar Sen, J. - (1.) In this Reference under Section 66 (1) of the Indian Income-tax Act, 1922, the question referred reads as follows:- "Whether on the facts and in the circumstances of the case, when the balance of the book profit after payment of tax is lower than the amount to be distributed out of the statutory distributable surplus, the provisions of section 23A can be applied for the years under reference". The facts appear from the statement of the case and the annexures thereto. For the assessment years, 1956-57, 1958-59 and 1960-61, the distributable surplus available to the assessee company arrived by deducting the taxes payable from he income assessed were respectively Rs. 56.015/- ; Rs. 1,06, 394/- and Rs. 164936/- It was also found that the dividend which was declared by the assessee company in respect of the said three years were respectively Rs. 20,000/- ; Rs. 30,000/- and Rs. 45,000/-.
(2.) Subsequently there were some modifications in these figures and ultimately the balance of distributable surplus found to be available to the assessee company in the said three assessment years were found Rs. 38,015/-; Rs. 75,394/- and Rs. 1, 19,986/-.
(3.) Under Section 23A of the Indian Income-tax Act, 1922, the assessee had to declare 90 per cent of the distributable surplus as dividend. As admittedly this percentage was not declared by way of dividends, the Income-tax Officer assumed jurisdiction under the said Section and levied additional super tax for the said three assessment years.;