# BOMBAY CITY I, BOMBAY v. JUBILEE MILLS LTD. BOMBAY

- **Citation:** [1968] 2 S.C.R. 539
- **Court:** Supreme Court of India
- **Decided:** 1967-12-05
- **Case number:** Civil Appeal No. 525 of 1967
- **Bench:** J. C. Shah, V. Ramaswami, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bombay-city-i-bombay-v-jubilee-mills-ltd-bombay-4231
- **Pages:** 9

## Headnote

Income Tax Act, 1922, s. 23-A-Company reconstructing capital to
write off· accumulated losses and reducing capital-Whether losses prior
to reconstruction relevant for determining reasonableness of company not
declaring dividend in subsequent year as prescribed by s. 23-A-S. 66(5)
-Procedure to be followed by Tribunal after High Court deciding question against the view taken by Tribunal.
The respondent company had suffered large losses in the years prior
to 1930 aIJd in that year it reconstructed its capital by adjusting a debit
balance of Rs. 12,75,000 in the profit and loss account against the paid
up capital and reducing the face value of its shares.
For the accounting
year relative to the assessment year 1948-49, the
respondent Company
declared a dividend amounting only to Rs. 24,750 although in terms of
s. 23-A of the Income-tax Act, 1922, it was prima facie liable to declare
a much largeT dividend.
The Income-tax Officer therefore held that the
company should be deemed to have declared a dividend of Rs. 3,98,798.
The respondent's appeals against this order to
the Appellate Assistant
Commissioner and the Appellate Tribunal were dismissed. The Tribunal
rejected the respondent's contention that in view of th'e past losses suffered
by the cempany, it was not reasonable to expect it to dectaie a larger
dividend.
It held that after the reconstruction of its capital the company
emerged in a new cloak of reduced capital and for the purposes of deter•
mining the applicability of s. 23-A the reconstructed capital alone had tQ
be taken into account and not the original capital, a great portion of which
had been wiped out by debiting losses. The High Court, upon a reference,
held that thi: loss of Rs. 12,75,000 incurred by the company prior to its
reconstruction in 1930 could be taken into consideration for the purposes
of the applicability of s. 23-A.
F
On appeal to this Court,
HELD : (i) The view taken by the Appellate Tribunal was erroneous
in law and the High Court had rightly answered the question referred to
it in favour of the respondP.nt-company.
Th<Te is nothing in the language or context of s. 23-A(l) of the Act
to suggest that the expre~:;ion "Josses incurred in the earlier years" should
be construed so as to exclude losses incurred prior to the reconstruction
G , "and to include only unadjusted or carried forward losses still outstanding
in the books of the company, The section requires the Income-tax Officer
to take into consideration "the losses incurred by the company in the earlier years'' or the "sma1Jness of profits made"
It is well-established that
the profits which are to be considered under s .. 23-A (I) are the commercial
or the accounting profits and not the assessable income or the assessable
profits of the company, because it is the commercial or the actual accountH
ing profits which arc to form the source from which the diVidend is to be
distributed and not the assessable income or assessable profits which may
have no relation to the commercia1 or accounting profits and which arc
not the actual source out of which the dividend could be paid. [544 G-H:
545 A-CJ
540
SUPREME COURT RBPOJ.TS
[1968] 2 S.C.R.
C.l.T. West Bengal v. Gangadliar Ranerju, ~1 J.T.R. 176, referred to.
A
If a c.omp~ny v.·~ich has got over its losses for ~ome year.. by adjusting
them against lls capnal anJ rc(fucing its capi1al males a profit in the 11ubscq~1t::nt y~ar it may the0rctic:11ly be in a P<'Sition to di;\tribute the whole
of .11s prollls 'or that ycJ.r but it cannot he said to have ac:ed unreasonably
!f it t..:hosc not to do sn and n:taincd a portion of the profits for the pUrposc of builJin~ up a capitJI reserve wh!ch in cour~e or time \\'ould enable
:he company to regain ib origin;il strength of capital.
It may he- th.at even
8
~1ftcr 1:ak.ing iat;.) co;isideration IOS'>~ prior to a reconstructi:l:J it i~ μossible
to come to the cono:Ju..,ion 1hat t}ie companv y,.·as not justified in not dcclar·
iog a larger di\':dcnd than tha

## Text

A
COMMISSIONER
OF INCOME-TAX,
BOMBAY CITY I,
BOMBAY
B
c
D
E
v.
JUBILEE MILLS LTD. BOMBAY
December 5, 1967
[J. C. SHAH, V. RAMASWAMI AND V. BHARGAVA, JJ.J
Income Tax Act, 1922, s. 23-A-Company reconstructing capital to
write off· accumulated losses and reducing capital-Whether losses prior
to reconstruction relevant for determining reasonableness of company not
declaring dividend in subsequent year as prescribed by s. 23-A-S. 66(5)
-Procedure to be followed by Tribunal after High Court deciding question against the view taken by Tribunal.
The respondent company had suffered large losses in the years prior
to 1930 aIJd in that year it reconstructed its capital by adjusting a debit
balance of Rs. 12,75,000 in the profit and loss account against the paid
up capital and reducing the face value of its shares.
For the accounting
year relative to the assessment year 1948-49, the
respondent Company
declared a dividend amounting only to Rs. 24,750 although in terms of
s. 23-A of the Income-tax Act, 1922, it was prima facie liable to declare
a much largeT dividend.
The Income-tax Officer therefore held that the
company should be deemed to have declared a dividend of Rs. 3,98,798.
The respondent's appeals against this order to
the Appellate Assistant
Commissioner and the Appellate Tribunal were dismissed. The Tribunal
rejected the respondent's contention that in view of th'e past losses suffered
by the cempany, it was not reasonable to expect it to dectaie a larger
dividend.
It held that after the reconstruction of its capital the company
emerged in a new cloak of reduced capital and for the purposes of deter•
mining the applicability of s. 23-A the reconstructed capital alone had tQ
be taken into account and not the original capital, a great portion of which
had been wiped out by debiting losses. The High Court, upon a reference,
held that thi: loss of Rs. 12,75,000 incurred by the company prior to its
reconstruction in 1930 could be taken into consideration for the purposes
of the applicability of s. 23-A.
F
On appeal to this Court,
HELD : (i) The view taken by the Appellate Tribunal was erroneous
in law and the High Court had rightly answered the question referred to
it in favour of the respondP.nt-company.
Th<Te is nothing in the language or context of s. 23-A(l) of the Act
to suggest that the expre~:;ion "Josses incurred in the earlier years" should
be construed so as to exclude losses incurred prior to the reconstruction
G , "and to include only unadjusted or carried forward losses still outstanding
in the books of the company, The section requires the Income-tax Officer
to take into consideration "the losses incurred by the company in the earlier years'' or the "sma1Jness of profits made"
It is well-established that
the profits which are to be considered under s .. 23-A (I) are the commercial
or the accounting profits and not the assessable income or the assessable
profits of the company, because it is the commercial or the actual accountH
ing profits which arc to form the source from which the diVidend is to be
distributed and not the assessable income or assessable profits which may
have no relation to the commercia1 or accounting profits and which arc
not the actual source out of which the dividend could be paid. [544 G-H:
545 A-CJ
540
SUPREME COURT RBPOJ.TS
[1968] 2 S.C.R.
C.l.T. West Bengal v. Gangadliar Ranerju, ~1 J.T.R. 176, referred to.
A
If a c.omp~ny v.·~ich has got over its losses for ~ome year.. by adjusting
them against lls capnal anJ rc(fucing its capi1al males a profit in the 11ubscq~1t::nt y~ar it may the0rctic:11ly be in a P<'Sition to di;\tribute the whole
of .11s prollls 'or that ycJ.r but it cannot he said to have ac:ed unreasonably
!f it t..:hosc not to do sn and n:taincd a portion of the profits for the pUrposc of builJin~ up a capitJI reserve wh!ch in cour~e or time \\'ould enable
:he company to regain ib origin;il strength of capital.
It may he- th.at even
8
~1ftcr 1:ak.ing iat;.) co;isideration IOS'>~ prior to a reconstructi:l:J it i~ μossible
to come to the cono:Ju..,ion 1hat t}ie companv y,.·as not justified in not dcclar·
iog a larger di\':dcnd than that actually de..:lared.
Hut in the preiirot case
the Tribun;,il !:at! rni'ldl;ccted itsc!f in law in holdint! that lo\!c~ incurred
prior h .. the recon~tru:;tion ;i.rc irrelevant for the purPosc of applic.11tion of
s. 23-A in suhsequent yea". [545 E-G; 546 A-Bl
(ii) The High Coun having rightly answered the question referred to
C
it in favour of the as,..:ssee meant that the ·rribuaal must now. io conformity with the judgment of th-o High Coun. act under " 66(5) of the Act,
1bat i~ to say, dispose of the case 1fter l'(:-hcaring the respondent company
an<l the Commis.s.ione; 10 thr.: light of the evidence and according to law.
[547 B-DJ
Income-tax Appellate Tribunal. Bomba;t and Ors, v. S.C. Cambatta &
Co. Ltd. 29 l.T.R.
118
and
fathuri Aswathiah v. The C.1.T. M7sore,
D
C.A. No. 631.' 1966 dated 18-4-67, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 525
of
1967.
Appeal from the judgment and order dated May 3/ 4, 1963
of the Bombay High Court in Income-tax Reference No. '40 of
1957.
E
B. Sen and R. N. Saclrthey, for the appellant.
S. F'. Mehta, S. E. Dastoor ar:d /. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
Ramaswami, J.
This appeal is brought, by certificate, from
the judgment pf tl'c Llomhay High Court dated May 3/4, 1963 io
1 ncome T:L~ Reference No. 40 of 1957.
E
The respondent-company is a limited liability company with
a paid up capital of Rs. 15.25,000/- as on June 30, 1947. Prior
to 1930 :he respondent-company had <uffered large losses and in
G
1930 a debit balance of Rs. 12·.75,000/- in the profit and loss
;iecoum of the respondent-company was adjus1ed by reducing the
paid up capital.
The face value of the Ordinary
shares
was
reduced from Rs. 100/- to Rs. 10/- each and of Preference
shares from Rs. 100/- •o Rs. 25/- each after obtaining the sanct'on
vf the Bombay High Courl.
For the assessment year 1948-49,
Ii
for which the relevant previous year was the year ended June 30.
1947. the respondent-company was assessed to a total income of
Rs.
7.47,6'9/-. On that
amount tax
was
calculated
at
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C.I.T. v. JUBILEE MILLS (Ramaswaml, J.)
541
Rs. 3,27,091/- and the balance available for distribution by way
of dividends for the purpose of s. 23A of the Income-tax Act,
1922 (hereinafter referred to as the 'Act') was,
therefore,
Rs. 4,20,548/-. Section 23A of the Act requires a company in
which the public are not substantially interested to declare in the
absence of certain special c:rcumstances a dividend which would
not be less than 60% of the said balance. The respondent
company the1efore was prima facie liable to declare a dividend of
at least Rs. 2,52,358/- in order to escape the penal consequences
of non-compliance with the provisions of the said section.
The
actual dividend which was declared by the respondent-company
was only Rs. 24,750/-. The Income-tax Officer with the previous
approval of the Inspecting Assistant
Commissioner,
therefore,
applied the provisions of s. 23A of the Act to the respondentcompany and held that the company should be deemed to have
declared a dividend of Rs. 3,95,798/-. The respondent-company
appealed to the Appellate Assistant Commissioner of Income-tax
against the order of the Income-tax Officer but the appeal was
dismissed.
The respondent-company thereafter filed
a second
appeal to the Income-tax Appellate Tribunal. By its order dated
September 7, 1955 the Appellate Tribunal confirmed the order
made under s. 23A of the Act' and dismissed the appeal. It was
contended before the Appellate Tribunal on behalf of the respondent-company that in view of the past losses suffered by it the nondeclaration of a dividend larger than that actually declared was
not unreasonable. It was argued that in view of the past losses
of Rs. 12,75,000/- it was not reasonable to expect the respondentwmpany to declare a larger dividend.
The argument of the
respondent-company was rejected by the Appellate Tribunal. It
stated as follows in the course of its order:
"It is true that company incurred large losses in past
years. But it reconstructed its capital in 1930. In that
year, the debit balance in the profit and loss account
had been set off against the paid-up capital thereby reducing the paid-up capital of the company. After the
reconstruction, the company emerged in a new cloak _of
reduced capital.
For the purpose of determining the
applicability of provision of Section 23A, in our view,
the reconstructed capital alone has to be taken into
account and not the original cap;tal. a great portion of
which had been wiped out by debiting losses. Those
prior losses had already been wiped out by writing off
against the paid up capital. They cannot now be taken
for consideration."
At the instance of the respondent-company thy Appellate
Tribunal referred the following questions of law for the opinion of
the Bombay High Court :
542
SUPREME COURT REPORTS
[1968] 2 SC.R.
. .. I. Whether on the facts and in the circumstances
ot the ca1e, the Income-tall Officer was competent to
pas, an 01der u/s. 23(1) of the Act after having allowed a rebate of one aana per rupee in the assessment under
t.he proviso (a) to paragraph (B) of Part I of the
Second Schedule of the Finance Act, 1948 ?
2. If the answer to question No. I is in the affirmative whether on the facts and in the circumstances of
the c~se, the asscssel'. company is a company in which the
pubhc are substantially interested for the purposes of
sec. 23A of the Act '' and
3. Whether the loss of Rs. 12.75.000/- incurred by
the company prior to its reconstruction in 1930, could
be taken into consideration for purposes of the applicability of sec. 23A (1) of the Act ?"
By its judgment dated March 13, 195.8 the High Court answered
the first question in the affirmative, holding that the Income-tax
Officer was competent tu pass an order under s. 23A(l) and he
was not precluded from doing so by reason of his having granted
rebate to the respondent-company. On the second qt1estion also
the High Court gave its answer in the affirmative, holding that the
respondent.company was a company in which the public was
>Ubstantially interested for the purpose of s. 23A of the Act. In
view of the answer to the second question the provisions of s. 23A
of the Act would not be applicable to the respondent-company and
the third question hecame academic, and the High Court declined
to answer it. The CommL<;.sioner of Income-Tax took the matter
in appeal to this Court which reversed the answer which the High
Court had given to question No. 2 and held that the respondentcompany was a company in which the public were not substantially interested for the purpose of s. 23A of the Act. In view of
the decision of this Court on the second question it became necessary for the High Court to consider the third question and this
Court therefore remanded the reference fo the High Court for consideration of the third question. After the remand the High Court
heard the reference again and by its judgment dated May 3 / 4,
1963 answered the third question in the affirmative and in favour
of the respondent-company. It was held by the High Court that
the losses prior to reconstruction of the respondent-«impany in
1930 which were set off against the paid-up capital could be taken
into consideration for the purpose of application of s. 23A of the
Act.
Section 23A of the Act before its amendment in 1955, in so
far as it is material, states as follows:
"23A. Power to assess individual members of certain
companiesA.
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C.l.T. v. JUBILEE MILLS (Ramaswaml, !.)
543
( 1) where the income-tax officer is satisfied that in
respect of any previous year the profits and gains distributed as dividends by any company upto the end of
the sixth month after its accounts for that previous year
are laid before the company in general meeting are less
than sixty per cent of the assessable income of the company of that previous year, as.reduced by the amount of
the income-tax and super-tax payable by the company in
respect thereof he shall, unless he is satisfied that having
regard to losses incurred by the company in earlier
years or to the smallness of the profit made, the payment
of a dividend or a larger dividend than that declared
would be unreasonable, make with the previous approval
of the Inspecling Assistant Commissioner an order in
writing that the undistributed portion of the assessable
income of the company of that previous year as computed for income-tax purposes and reduced by the
amount of income-tax and super-tax payable by the
company in respect thereof shall be deemed to have
been distributed as dividend amongst the shareholders
as at the date of the general meeting aforesaid and
thereupon the proportionate share thereof of each shareholder shall be included in the total income of such
shareholder for the purpose of assessing bis total income :
Provided further that this sub-section shall not apply
to any company in which -the public are substantially
interested or to a subsidiary company of such a company if the whole of the share capital of such subsidiary
company is held by the parent company or by the
nominees thereof.
Exp/anation.-For the purpose of this sub-section,
a company shall be deemed to be a company in
which the public are substantially interested ·if shares
of the company (not being shares entitled to a fixed
rate of dividend, whether with or without a further
right to participate in profits) carrying not less than
twenty-five per cent of the voting power have been allotted unconditionally to. or acquired unconditionally by,
and are at the end of the previous year beneficially held
by the public (not including a company to which the provisions of this sub-section apply). and if any such shares
have in the course of such previous year been the subject
SUPREME COURT REPORTS
[ 1968] 2 S.C.J..
of dealings in any stock exchange in the taxable territories or arc in fact freely transferable by the holders to
other members of the public."
The applicability of s. 23A of the Act is therefore attracted
when it is found that the company in which the public are not
substantially interested has declared a dividend of less than 60%
of the assessable income of the company as reduced by the amount
of income-tax and super-tax payable by the company in respect
thereof for any previous year. The section, however, has provided
that even if the applicability of the section is attracted, the Incomctax Officer has to consider whether, having regard to the losses
incurred by the company in earlier years or having regard to the
smallness of its profits, it would have been unreasonable for the
company .to declare. a dividend larger than which it had actually
declared .. The object of the section is to collect super-tax from
the shar.eholders which would be payable if the company had distributed its income by way of dividends and to discourage avoidance of •;ix by failing to distribute its income.
On behalf of the appellant Mr. B. Sen put forward the· argument that as a result of the reconstruction of the capital in 1930
a new chapter had opened in the life of the respondent-company
and losses which it had suffered prior to the reconstruction of its
capital were irrelevant and should not be considered for the purpose of s. 23A of the Act so.far as subsequent years are concerned.
It was said that for determining the application of s. 23A of tho
Act it was the reconstructed capital alone and not the original
capital that had to be taken into account.
It was
PO;!lted
out
that though the reduction of 'he capital h3d been necessitated by
lesses ouffered, the reconstruction of the capital had resulted in
wiping out the losses and star·ini! the company afresh with reduced
capital as its paid-up share c.apital.
The argument was stressed
that where the company adjusts losses against the paid-up capital
and reconstructs its capital, the financial position of the company
and its dividend distributing capacity in subsequen! years have to
be judged only by the result of its tradin~ after reconstruct;on and
not with reference 10 earlier losses which have disappeared by adjustment. In our opinion. there is no warrant for the acgument put
forward on behalf of the appellant. There is nothing in the langua!!e
or con•ext of s. 23A (I) of the Act to suggest that the expression
"losses incurred in the earlier years" should be construed so as to exclude losse~ incurred.prior to the reconstruction and to include only
unadjusted or carried forward losses still outstanding in the books
of the company.
In our opinion, the losses which have been adjusted in the books of the company at the time of reconstruction
do not cease to be "losses incurred hy the company in the earlier
years" within the meaning of s. 23A ( 1). The section requires
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C.l.T, .v .. JU.l!ILEE MILLS (Ramaswami, J.)
545
the Income-tax Officer to take into consideration "the losses in,
curred by the company in the earlier years" or "the smallness of
profits made." It is well-established that the profits which are to
be considered under s. 23A(l) are the commercial or the accounting profits and not the assessable income or the asse.ssable profits
of the company, because it is the commercial or the actual
accounting profits . which are to form the source from which the
dividend is to be distributed and not the assessable income or
assessable profits which may have no relation to the commercial
or accounting profits and which are not the actual source out of
which the dividend could be paid.-See C.l.T., West Bengal v.
Gangadhar Banerjee('). On a similar line of reasoning the
consideration of losses in the earlier years should be made in the
setting and conte/(t of the inquiry whether the company could
be regarded as acting reasonably in declaring a smaller dividend.
It is true that as a result of the losses having been adjusted against
the paid-up capital they no longer remain as unadjusted losses
or carried for)Vard losses but it does not mean that they cease to
have any i.p1pact on the financial position of the company in subsequent yetti;s.
Even if the company resorts to the method of
wiping out the losses by adjusting them against its capital, the
procedure results in crippling its finances and the company in
future.)'ears may reasonably take steps for improving its crippled
financial position. If therefore a company which has got over its
losses for some years by adjusting them against its capital and
reducing its capital makes a profit in the subsequent year it may
theoretically be in a position to distribult> the whole of its profits
for that year but it cannot be said to have acted unreasonably if
it chose not to do so and retained a portion of the profits for the
purpose of building up a capital reserve which in course of time
u1ould enable the company to regain its original strength of capital
which had been crippled by the adjustment of losses at the time
of reconstruction.
We are therefore unable to accept the argument put forward on behalf of the ·appellant on this aspect of the
case. In our opinion, the Appellate Tribunal mis-directed itself
in law in holding .that the losses incurrecj. prior to the reconstruction of the respondent-company are irrelevant far the purpose of
application c•f s. 23A of the Act in subsequent years. As we have
already said, the losses incurred prior to the reconstruction having been adjusted are no longer shown in the books of the company. It does not, however, mean that the losses cease to have
their effect on the financial posftion of the company in subsequent
years. It cannot therefore be said .that the losses prior to reconstruction do not fall within the ambit of the expre>sion "losses incurred by the company in earlier years" for the purpose of the
application of s. 23A of the Act. Such losses are relevant to be
considered even though they may not be surviving in the books of
(1) 57 LT. R. 176.
L2Sup Cl/68-4
5~6
SUPREME COURT REPORTS
(1968] 2 S.C.R.
the C-Ompany as un_adjusted or carried forward losses. It may be
A
that even after talong s_uch losses into e-0nsideration it is possible
to come to the conclusion that the company was not justified in
not declarin~ a larger dividend than that. actually declared. But
what the Tnbunal has done in this case is that it has refused to
take such losses into account at all because it has taken the view
that by their adjustment against the capital the losses do not surB
\"!Ve for coqsideration for the purpose of the application of s. 23A
of the Act.
The view taken by the Appel!a•e Tribunal is erroneous in law and we arc of opinion that the High Coun has rightly answered the third question in the affirmative and in favour of
the respondent-company.
But it is necessary to give certain effective directions, so that
a mere order of dismissal of this appeal may not result in injustice.
Section 66(5) of -the Act requires the Tribunal on receiving · a
copy of the judgment of the High Court to pass such orders as
are necessary to dispose of the case conformably to such judgment. The section clearly imposes an obligation upon the Tribunal
to dispose of the appeal in the light of and conformably with the
judgment of the High Court. If the High Court agrees ~ith the
.,iew of the Tribunal, the appeal may be di5posed of by a formal
order.
But if the High Court disagrees with the Tribunal on a
ques!ion of law, the Appellate Tr'bunal must modify its order in
the light of the order of the High Court. If for example the High
Court has held that the judgment of the Tribunal
is
vitiated,
because it is based on no evidence or because the judgment proceeds upon a mis-cons•ruction of the statute,
the Appellate
Tribunal would be under a duty to dispose of the case confonnably with the opinion of the High Court and on the merits of the
dispute; and rehear the appeal after giving notice to the parties
and redetermine ir in accordance with law. In Income-tax Appellate 1'riburw/.
Bc>mbay and Ors. v. S.
C.
Camba/la and
Co. Ud., (') the Bombay High Court explained the procedure to
be followed JS under :
"when a reference is made lo the H;l!h Court either
under s. 66 (I ) or section 66 (2) the decision of the
Appellate Tribunal cannot be looked upon as final; in
other wQrds. the appeal i5 not finally dispooed of. It is
only when the High Coun decide<: the case, exercises its
advi~;ory jurisdiction, and gives directions to the Tribunal on questions of law. and lhe Tribuna1 reconsiders
the matter and decides it, tha• the aope~l is
finally
disposed of. ......... it is clear that what the Appellate Tribunal is doing after the High Court has heard
the case is to exercise its appellate powers under section
(I) 29 I.T.R. t IS
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547
33 ........... The shape that the appeal would ultimately take and the decision that the Appellate Tribunal would ultimately give would entirely depend upon
the view taken by the High Court."
This passage was quoted with approval by this Court in Esthuri
Aswathiah v. The C.1.T., Mysore('). In the present case, the
High Court has held, and we agree with the High Court, that fte
judgment of the Appellate Tribunal is vitiated in law because it
has proceeded on an erroneous interpretation of the statute. The
High Court accorwngly answered the third question in the affirmative and in favour of the respondent-company.
We must make
it clear that the answer of the High Court to this question mean•
that the Appellate Tribunal must now, in conformity with the
judgment of the High Court, act under s. 66 ( 5) of the Act, that
is to say, dispose of the case after rehearing the respondent- ·
company and the Commissioner in the light of the evidence and
according to law.
Subject to this wrection. the appeal is dismissed with costs.
R.K.P.S.
Appeal dismissed.
(I) Civil Appeal No. 631 of '!~66. decided on April 18, 1967.