The
Chief
Justice
(per
curiam)
(judgment
delivered
from
the
Bench):—We
have
concluded
that
it
is
not
necessary
to
hear
counsel
on
the
second
branch
of
the
case.
This
is
an
appeal
in
an
income
tax
matter
from
the
Trial
Division.
The
question
is
whether
the
appellant
was
associated
with
another
company
for
the
1968
and
1969
taxation
years
for
the
purposes
of
section
39
of
the
Income
Tax
Act.
The
trial
judge
held
that
the
two
companies
were
so
associated
on
alternative
grounds,
viz,
they
fell
within
paragraph
39(4)(b)
and
they
fell
also
within
paragraph
39(4)(d).
We
have
heard
counsel
with
reference
to
paragraph
39(4)(b)
and
have
concluded
that
it
is
not
necessary
to
hear
them
with
regard
to
paragraph
39(4)(d).
With
reference
to
paragraph
39(4)(b),
it
is
common
ground
that,
if
beneficial
ownership
in
the
shares
of
two
of
the
registered
shareholders
had
been
transferred
to
the
two
Lawlor
brothers
in
1968,
the
appeal
must
fail.
On
this
point,
in
the
view
that
we
take
of
the
case,
two
questions
arise,
viz:
(a)
Did
the
trial
judge
hold
as
a
fact
that
the
shares
in
question
were
so
beneficially
transferred?
and
(b)
If
he
did,
is
there
any
basis
for
this
Court
interfering
with
that
finding
of
fact?
With
reference
to
the
first
question,
while
there
is
a
statement
in
the
trial
judge’s
reasons
to
the
effect
that
the
brothers
“never
intended
to
divest
themselves
of
the
ownership
of
their
shares”,
which,
read
by
itself,
raises
some
doubt
as
to
the
soundness
of
his
appreciation
of
the
facts,
when
the
relevant
part
of
his
reasons
is
read
as
a
whole,
he
appears
to
have
had
a
complete
grasp
of
what
was
involved
and
to
have
made
a
finding
that
the
brothers
“were
beneficial
owners
of
the
majority
of
the
shares
in
Regal”.
With
reference
to
the
second
question,
the
finding
of
fact
was
made
on
the
basis
of
a
conflict
between
evidence
the
proper
appreciation
of
which
depended
in
part
at
least
on
observation
of
the
witnesses.
In
our
view,
the
conclusion
that
the
trial
judge
reached
was
open
to
him
on
the
evidence
and
it
has
not
been
shown
that
he
was
guilty
of
any
error
in
the
manner
in
which
he
reached
that
conclusion.
For
these
reasons,
we
are
of
the
view
that
the
appeal
should
be
dismissed
with
costs.
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