# SHREE KRISHNA AGENCY LTD v. COMMISSIONER OF INCOME TAX CENTRAL, CALCUTTA

- **Citation:** [1972] 1 S.C.R. 368
- **Court:** Supreme Court of India
- **Decided:** 1971-08-24
- **Case number:** Civil Appeals Nos. 1837 and 1838 of 1968
- **Bench:** K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shree-krishna-agency-ltd-v-commissioner-of-income-tax-central-calcutta-5364
- **Pages:** 5

## Headnote

Income-tax Act, 1922, s. 23A(9')-Exp/nnation (!)
cl.
(ii)-Free
transferability of shares-Directors having absolute discretion to refuse
to
register
transfer of shares
without
giving
any
reasons-Shares
whether freely transferable-Public whether
s:1bstantially
interestea
in
company.
The assessee was a public limited company.
Under Art. 3 7 of its
Articles of i\ssociation the Directors could at any time in their disc.:retlon
and without assigning any reason decline to register any proposed transfer
-of shares.
The question in Income-tax proceedings relating to the assessment years 1952-53 and 1954-55 was whether on a true interpretation of
Art. 3 7 the assessee company could be regarde.d as one in which the public
were substantially interested within the meaning of the third proviso to
s. 23A(l) of the Income-tax Act, 1922. In reference the High Court
ans\.\'·ered tihe question in favour of the revenue Oll the view that the shares
of the company were not freely transferable and therefore it was not
a
company in which the public were substantially interested. In the
assessee'B appeal by special leave,
HELD : Artide 37 could not by any stretch of reasoning be regarded
'by itself to be a restriction on the transfer of shares by one shareholder to
another.
Free transferability of shares is a nor1nal and common feature
·of limited companies. Indeed there would hardly be any public company
in the memorandum of articles of which an article similar to Art. 37.
will not be fougd.
This article appears even in the standard Articles of
Association prescribed under the Companies Act itself. The purpose is
,only to give power to the Directors for declining to register the tran•fer
,of a share when the paramount interest of the company so require. There
may be cases where it can be shown that the Directors have been exercising
the power very freely and have virtually eliminated the element of free
transferability. In such cases it may be possible to hold that in fact the
shares were not freely transferable. But in the present case there was no
evidence of the Directors having acted in the aforesaid manner nor was
there any restriction in the other Articles of Association interfering with
·the free transfer of shares by one shareholder to another. The High Court
was therefore in error in holding that the mere existence of an article like
Art. 37 would affect the fre_e transferability of the shares within the mean~
ing of the Explanation (1) to s. 23A(9) of the Act. [372 C-F]
East India Corporation Ltd. v. Commissioner of Income-tax,
Madras,
61 I.T.R. 16 and Raghuvanshi Mills Ltd. v. Commissioner of Income-tax,
Bombay, 74 l.T.R. 823, approved.
Commissioner of lncom•-tax, West Bengal v. Tona lute Co.
Ltd. 48
A
B
c
D
E
1. T. R. 902, disapproved.
H

## Text

368
SHREE KRISHNA AGENCY LTD.
v.
COMMISSIONER OF INCOME TAX CENTRAL, CALCUTTA
August 24, 1971
[K. S. HEGDE AND A. N. GROVER, JJ.]
Income-tax Act, 1922, s. 23A(9')-Exp/nnation (!)
cl.
(ii)-Free
transferability of shares-Directors having absolute discretion to refuse
to
register
transfer of shares
without
giving
any
reasons-Shares
whether freely transferable-Public whether
s:1bstantially
interestea
in
company.
The assessee was a public limited company.
Under Art. 3 7 of its
Articles of i\ssociation the Directors could at any time in their disc.:retlon
and without assigning any reason decline to register any proposed transfer
-of shares.
The question in Income-tax proceedings relating to the assessment years 1952-53 and 1954-55 was whether on a true interpretation of
Art. 3 7 the assessee company could be regarde.d as one in which the public
were substantially interested within the meaning of the third proviso to
s. 23A(l) of the Income-tax Act, 1922. In reference the High Court
ans\.\'·ered tihe question in favour of the revenue Oll the view that the shares
of the company were not freely transferable and therefore it was not
a
company in which the public were substantially interested. In the
assessee'B appeal by special leave,
HELD : Artide 37 could not by any stretch of reasoning be regarded
'by itself to be a restriction on the transfer of shares by one shareholder to
another.
Free transferability of shares is a nor1nal and common feature
·of limited companies. Indeed there would hardly be any public company
in the memorandum of articles of which an article similar to Art. 37.
will not be fougd.
This article appears even in the standard Articles of
Association prescribed under the Companies Act itself. The purpose is
,only to give power to the Directors for declining to register the tran•fer
,of a share when the paramount interest of the company so require. There
may be cases where it can be shown that the Directors have been exercising
the power very freely and have virtually eliminated the element of free
transferability. In such cases it may be possible to hold that in fact the
shares were not freely transferable. But in the present case there was no
evidence of the Directors having acted in the aforesaid manner nor was
there any restriction in the other Articles of Association interfering with
·the free transfer of shares by one shareholder to another. The High Court
was therefore in error in holding that the mere existence of an article like
Art. 37 would affect the fre_e transferability of the shares within the mean~
ing of the Explanation (1) to s. 23A(9) of the Act. [372 C-F]
East India Corporation Ltd. v. Commissioner of Income-tax,
Madras,
61 I.T.R. 16 and Raghuvanshi Mills Ltd. v. Commissioner of Income-tax,
Bombay, 74 l.T.R. 823, approved.
Commissioner of lncom•-tax, West Bengal v. Tona lute Co.
Ltd. 48
A
B
c
D
E
1. T. R. 902, disapproved.
H
CIVIL APPELLATE JURISDICTION :
Civil Appeals Nos. 1837
and 1838 of 1968.
A
B
c
D
E
SHREE KRISHNA AGENCY v. C.I.T. (Grover, J.)
369
Appeals from the judgment and order dated February 10, 196S
and July 17, 1967 of the Calcutta High Court in !ncome-tax
Reference Nos. 274 of 1961 and 114 of 1963 respectively.
D. Pal, R. K. Chaudhry, N. R. Khaitan, Krishna Sen and
B. P. Maheshwari, for the appellant (m both the appeals).
B. Sen, R. N. Sachthey and B. D. Sharma, for the respondent
(in both the appeals).
The Judgment of the Court was delivered by
Grover, J.
These appeals by certificate from a judgment ?f
the Calcutta High Court arise out of Income Tax References m
which the main point involved was whether the assessee company
could be regarded as one in which the public ~re substantially
interested within the meaning of the Explanat10n m s. 23A of the
Indian Income Tax Act,1922, hereinafter called the "Act".
The appeals relate to the assessment years 1952-53 and 195455.
The assessee is a public company incorporated under the
Indian Companies Act, 1913.
Article 37 of its
Articles of
Association provided as follows :-
"The Directors may at any time in their absolute
and uncontrolled discretion and without assigning any
reason decline to register any proposed transfer of
shares."
The Income Tax Officer held that the assessee was a company in
which the public were not substantially interested 'Within the meaning of the Explanation in s. 23A of the Act.
Accordingly he
applied the provisions of that section. The assessee appealed to
F
the Appellate Assistant Commissioner. The appeal relating lo the
assessment year 1952-53 was dismissed but with regard to the
subsequent year it was allowed.
The Appellate Tribw1al upheld
the contention that Article 37 of its Articles cf Association did
not operate as a bar to the tree transferability of the chares and
!f1erefore it ~a~ a compan~ in which the public were substanti1lly
G mterested withm the meamng of the Explanation in s. 23A of the
Act.
Thereupon the Tribunal was moved by the Commissioner
of !~come tax for .stating the case and referring the following
ques!lon of law which was referred by it to the High Court in
the case relating to the assessment year 1952-53 :
H
"Whether on a true interpretation df Article 37 of
the Articles of Association, the assessee Company can
!'e regarded .as .one in whic~ the public are substantially
mterested within the meanmg of the third proviso to
section 23A(l)".
-
:J 7 0
SUPREME COURT REPORTS
[1972] 1 s.c.R.
A
A similar question was referred in the case relating to the assessment year 1954-55. The High Court following a judgment of the
same court in Commissioner of Income tax, West Bengal v. Tona
Jute Co.
Ltd., (1)
answered the questions referred against the
assessee and in ·favour of the Revenue. In that case the Calcutta
High Court had expressed the view that a public company whose
Directors had absolute discretion to refuse to register the transfer
B
of any share to any person whom it shall in their opinion be undesirable in the interest of the company to admit to membership and
were not obliged to give any reason for refusal to register was not
a company the shares of which were freely transferable to other
members of the public within the meaning of the Explanation in
s. 23A of the Act.
c
Section 23A of the Act confers power to ass~ss companies to
super tax on undistributed income in certain cases.
Sub-section
( 9) inter alia provides that nothing contained in the section shall
apply to any company in which the public are
substantially
interested.
Explanation ( 1) which was so renumbered by s. 7
of the Finance Act of 1957 to the extent it is material is as
D
follows:
"For the purposes of this section, a company shall
be deemed to be a company in which the public are
substantially interested."
(a)
(b) if it is not a private company as defined in the
Indian Companies Act, 1913, (VII of 1913),
and
(j) ....................... .
E
(ii) the said shares were at any time during the preF
(iii)
vious year the subject of dealing in any recognised stock exchange in India or were freely
transferable by the holder to other members of
the public; and
..
The Calcutta High Court referred to the relevant provisions of
the Indian Companies Act 1913 according to which unless the
Article provided otherwise the shareholder had a free right to
·transfer his shares to whomsoever he liked. But it was considered that where the Articles contained a power under which
the Directors could decline to register any transfer of shares the
right of free transfer was cut down by that Article ~nd this affected
the question of free transferability of the shares. Moreover the
(I) 48 I.T.R. 902.
G
H
A
B
SHREE KRISHNA AGENCY v. C.I.T. (Grovsr, J.)
371
transfer of shares was not complete until the registration of the
name of the transferee and if such a registration could not be .
insisted on as a matter of right it could not be said that the shares ,
were freely transferable. The Madras High Court in East India
Corporation Ltd. v. Commissioner of Income-tax, Madras(1) and
the Bombay High Court in Raghuvanshi Mills Ltd., v. Commissioner of Income-tax, Bombay(') took the contrary view and dissented from the opinion expressed in the Calcutta case that in
the presence of an Article similar to Article 3 7 of the Articles of
Association of the assessee the shares would not be freely transferable within the meaning of clause (ii) to Explanation 1 in s. 23A
( 9) of the Act. It may be mentioned that before its amendment
C
by the Finance Act 1955 the corresponding provision appeared in
the Explanation ins. 23A(l) after the third proviso. But instead
of the word "were" the word "are" Was employed. The question,
therefore, which has to be examined is whether the shares could
be regarded as freely transferable to other members of the public,
D
E
F
G
In our opinion the following observations in the East India Corporation case represent the correct view about the meaning of the
word "transferable" :
""Transferable", ex facie, is not to be equated to
"transferred".
The word imports a quality, a legal
effect arising out of or inherent in the character and
nature of the shares themselves. This quality does not
stand by itself, for the section says "are in fact freely
transferable". We have to give effect to each of these
words, and ifwe did so, transferability is qualified by
the fact which in. the context, to out minds, means a
factual tendency which is unrestricted and which ensures
transferability. In other words, we understand by the
words "are in fact freely transferable" not that there
should necessarily be actual transfers of shares, but a
factual tendency towards free transfer of shares, subject,
of course, to reasonable restrictions by holders to other
members of the public."
The Directors have certainly been given a discretion by Article 3 7
to decline to register any proposed transfer of shares but that does
not mean that the shares cease to be transferable. The said Article
does not confer any uncontrolled or unrestricted discretion upon
the Directors to refuse to register the transfer of shares in a given
case. In other words the Direetors cannot act &rbitrarily or capriH
ciously. It is well known that the power conferred by such an
Article is of a fiduciary nature which has to !Je exercised by the
!I) 61 J.T.R. 16.
(2) 74 l.T. R. 823.
372
S~PREME COURT REPORTS
[1972] 1 s.c.R.
Directors in the best interests of the company for preventing any
undesirable person becoming a member if that is likely to be
prejudicial to the company.
It is a power which has
to
be
reasonably exercised for protecting the interests of the company.
It cannot be assumed that the discretion conferred on the Directors
will be abused for uHerior purposes. The discretion which has
been conferred for being exercised in the interest of the company
cannot take away the tendency of the free transferability of the
shares in the absence of cogent material or other factors from
which it can be inferred that the shares were not capable of being
freely transferred. Article 3 7 can by no stretch of reasoning be
regarded by i'tself to be a restriotion on the transfer of shares by
one shareholder to another.
Free transferability of shares is a
normal and common feature of limited companies. Indeed there
would hardly be any public company in the memorandum of
articles of which an article similar to Article 37 will not be
found.
This article appears even in the standard Articles
of
Association prescribed under the Companies Act . itself.
The
purposes, as has been noticed before, is only to give power to
the Directors for declining to register the transfer of a share when
the paramount interests of the company so require.
There may
be cases where it can be shown that the Directors have been exercising that power very freely and have virtually eliminated tht
element of free transferability. In such cases it may i>e possible
A
B
c
D
to hold that in fact the shares were not freely transferable. But
in the present case ithere is no evidence of the Directors having
E
acted in the aforesaid manner nor is there any restriction in the
other Articles of Association interfering with the free transfer of
shares by one shareholder to another. We are unable, therefore,
to uphold the judgment of the Calcutta High Court that the mere
existence of an article like Article 37 would affect the free transferability of the shares within the meaning of the Explanation.
In the result the appeals are allowed and the decision of the
High Court is set aside.
Tue question referred in each case is
answered in favour of the assessee and again5t the Revenue. The
assessee shall be entitled to one set of costs in this Court.
G.C.
Appeal allowed.
F