2008 (6) TMI 184 - HC - Income Tax

Court rules assessee qualifies as a public company under Income Tax Act

The High Court determined that the assessee qualifies as a company in which the public are substantially interested under Section 2(18) of the Income Tax ... Case of the Assessee is that the Assessee Company is the Company in which the public are substantially interested as defined u/s 2(18) since more than 50% of the shares are held by two Companies “to which this clause applies” – contention of assessee is acceptable – two companies even if not fulfilling conditions laid down in section 108(b), but covered under definition of S 2(18) – therefore, assessee company is also covered by S. 2(18) - assessee should be treated as a Public Limited Company Issues Involved:1. Whether the assessee should be treated as a Public Limited Company under Section 2(18) of the Income Tax Act, 1961.Detailed Analysis:Issue 1: Whether the assessee should be treated as a Public Limited Company under Section 2(18) of the Income Tax Act, 1961.Statutory Provisions:- Section 2(18) of the Income Tax Act, 1961 defines a 'Company in which the public are substantially interested.' It includes companies owned by the government, companies registered under Section 25 of the Companies Act, mutual benefit finance companies, and companies listed on a recognized stock exchange or having more than 50% of voting power held by the government, corporations, or companies to which this clause applies.- Section 108(b) of the Act exempts companies in which the public are substantially interested and their subsidiaries from certain provisions.Arguments by the Assessee:- The assessee argued that more than 50% of its shares are held by P.B. Investments & Trusts Ltd. and K.B. Investments Ltd., which are subsidiaries of VVN Manufacturing and Investment Ltd., a company listed on the stock exchange.- P.B. Investments & Trusts Ltd. and K.B. Investments Ltd. are treated as companies covered by Section 2(18) of the Act, thus making the assessee a company in which the public are substantially interested.Arguments by the Revenue:- The Revenue contended that P.B. Investments & Trusts Ltd. and K.B. Investments Ltd. do not fulfill the requirement of being wholly owned subsidiaries of VVN Manufacturing and Investment Ltd. as per Section 108(b).- Therefore, the assessee does not qualify as a company in which the public are substantially interested under Section 2(18) of the Act.Findings of the Assessing Officer:- The Assessing Officer ruled against the assessee, stating that P.B. Investments & Trusts Ltd. and K.B. Investments Ltd. do not meet the criteria of being wholly owned subsidiaries as required by Section 108(b).Commissioner of Income Tax (Appeals):- The Commissioner upheld the Assessing Officer's decision, agreeing that the assessee is not a company in which the public are substantially interested.Income Tax Tribunal:- The Tribunal reversed the lower authorities' decisions, holding that the assessee is covered under Section 2(18) of the Act. It reasoned that P.B. Investments & Trusts Ltd. and K.B. Investments Ltd. are public companies holding more than 50% of the assessee's shares, thus meeting the conditions of Section 2(18).High Court's Analysis:- The court noted that P.B. Investments & Trusts Ltd. and K.B. Investments Ltd. hold more than 50% of the assessee's shares and are treated as companies covered under Section 2(18) of the Act.- It was undisputed that P.B. Investments & Trusts Ltd. and K.B. Investments Ltd. are subsidiaries of VVN Manufacturing and Investment Ltd., but VVN does not hold the entire share capital of these subsidiaries as required by Section 108(b).- The court interpreted sub-clause (c) in Section 2(18)(b)(B) as having two independent parts: one for companies to which this clause applies and another for subsidiaries fulfilling Section 108(b) conditions.- The court concluded that if a subsidiary company independently fulfills the requirement of being a company to which this clause applies, it need not meet the further requirement of being wholly owned by the parent company.Conclusion:- The court held that since P.B. Investments & Trusts Ltd. and K.B. Investments Ltd. are companies to which this clause applies and they hold more than 50% of the assessee's shares, the assessee qualifies as a company in which the public are substantially interested under Section 2(18) of the Act.- The court answered the question in the affirmative, against the Revenue and in favor of the assessee.Disposition:- The reference was disposed of accordingly.