Dipak Kumar Sen, J. - (1.) This reference is at the instance of the assessee, Charmugaria Trading Co. Ltd. The assessment year involved is 1963-64, the relevant previous year being the accounting year ended on 30th June, 1972. The facts found or admitted as appearing from the statement of the case ami the annexures thereto may be briefly noted as follows :
(2.) The assessee is a company in which admittedly the public are not substantially interested. For the assessment year in question the distributable surplus was Rs. 11,637 and the company declared a dividend of Rs. 7,200. It is the contention of the revenue that the assgssee ought to have distributed the statutory percentage of 90 per cent. of its distributable surplus inasmuch as it was an investment company within the meaning of Section 109(ii) of the Income-tax Act, 1961.
(3.) The Income-tax Officer proceeded on the basis that the assessee was an investment company and levied additional super-tax under Section 104(1) of the Income-tax Act, 1961, as in the earlier assessment year 1962-63, where it was held that the assessee was an investment company and this finding was confirmed in appeal.;