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.