TMI Blog1989 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal is by special leave and is directed against the judgment of the Bombay High Court dated July 16, 1974, ([1975] 100 ITR 458), on a reference made under section 66(1) of the Indian Income-tax Act, 1922. The year of assessment is 1951-52 corresponding to the accounting year ending March 31, 1951. The question referred by the Tribunal to the High Court at the instance of the Revenue was (at page 459 of 100 ITR) : "Whether, on the facts and in the circumstances of the case, the assessee-company could not be held to be a company in which the public were substantially interested within the meaning of the Explanation to section 23A(1) by reason of the fact that the shares of the company carrying not less than twenty-five per cent. of its vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the instance of the Revenue, the aforesaid question was referred and the case was stated to the High Court under section 66(1) of the 1922 Act. The High Court found in favour of the assessee and against the Revenue. That has led to the present appeal by special leave. As pointed out above, the short point for consideration in this appeal is as to whether the assessee satisfied the requirements of the Explanation to section 23A(1) of the Act so as to be entitled to the tax benefit. This court pointed out in the case of CIT v. Afco P. Ltd. [1963] 48 ITR (SC) 76 (p. 80) : "Section 23A was enacted to prevent evasion of liability to pay super-tax by shareholders of certain classes of companies taking advantage of the disparity between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dealings in any stock exchange in the taxable territories or are in fact freely transferable by the holders to other members of the public." The only question that has engaged the attention of the Tribunal and the High Court at the instance of the respective parties is whether the shares were freely transferable by the holders to other members of the public in the course of the previous year. As we have already pointed out, the Income-tax Officer and the first appellate authority held that the terms of the Explanation required that the shares should have been freely transferable by the shareholders to other members of the public at every point of time during the previous year and transferability should be established by actual transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasised upon the feature that in the same Explanation, reference to time has been expressed differently and if the legislative intention was not to distinguish and while stating "in the course of such previous year" it was intended to convey the idea of the last day of the previous year, there would have been no necessity of expressing the position differently. There is abundant authority to support the stand of counsel for the Revenue that when the situation has been differently expressed, the Legislature must be taken to have intended to express different intention. "Course" ordinarily conveys the meaning of a continuous progress from one point to the next in time or space and conveys the idea of period of time ; duration and not a fix ..... X X X X Extracts X X X X X X X X Extracts X X X X
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