- (1.) A Scheme of Amalgamation of one M/s.Usman Paper Mills with the petitioner company was sanctioned under Sections 391 and 394 of the Companies Act, 1956 by the Company Court by common order dated 29th October, 2004 passed in Company Petition No.04 of 2004 and Company Petition No.05 of 2004. In view of definition of "conveyance" in Section 2(g)(iv) of the Bombay Stamp Act, 1958 (now the Gujarat Stamp Act, 1958), the order was liable to payment of stamp duty, in respect of the properties and assets of transferor company conveyed to and in the name of transferee company, as per Article 20(c) of the Schedule I to the Act. Copy of order was presented before the stamp authority for payment of stamp duty. The stamp authorities took view that the same was presented after period of one year contemplated under Section 40 of the Stamp Act.
(2.) The Collector and Superintendent of Stamps by his order dated 03rd July, 2008 required the petitioner to pay deficit stamp duty amount of Rs.05,89,340/- under Article 20(d) and Rs.01,00,000/- towards penalty under Section 39(1)(b) of the Act. Petitioner's Revision thereagainst filed under Section 4(1) of the Act was also dismissed. 2.1 The petitioner company has thus impugned by filing the present petition, the aforementioned order dated 16th June, 2010 passed in Revision Application No.41 of 2008 by the Chief Controlling Revenue Authority-respondent herein, together with aforesaid order dated 03rd July, 2008 of Collector and Superintendent of Stamps.
(3.) The relevant facts shall be in a nutshell. The aforesaid order of amalgamation dated 29th October, 2004 in the Company Petitions was made subject to the requisite orders by the Board of Industrial & Financial Reconstruction (BIFR). The certified copy was received on 11th January, 2005. The BIFR granted sanction on 07th June, 2005. The order was presented for stamp duty on 17/23rd February, 2006. 3.1 The relevant paras from the aforesaid order dated 29th October, 2004 sanctioning the Scheme of Arrangement in the nature of Amalgamation under Section 301 with Section 394 of the Companies Act are reproduced with relevance. ".... learned Addl. Central Government Standing Counsel appearing on behalf of the Central Government and Mr. Pranav. G. Desai, learned Advocate appearing on behalf of Dena Bank. 3 Both the Transferor and the Transferee Companies belong to the same group of management. Both are Private Limited Companies. The meetings of the Shareholders of both the Companies and the Creditors of the Transferor Company were dispensed with in view of the consent letters obtained from the Shareholders and the Secured and Unsecured Creditors, approving the Scheme, having been placed on record vide order dated 26/12/2003 in Company Application Nos. 599 & 600 of 2003. 4 After the petitions were admitted the same were duly advertised in Newspapers "Indian Express" (English Daily)- Vadodara Edition and "Gujarat Mitra" (Gujarati Daily)-Surat Edition, on 24/03/2004. The publication in Government Gazette was dispensed with as directed in order dated 11/3/2004. No one has come forward with any objections to the petitions even after publication of the advertisement. 5 Notice of admission of petition of Transferor Company was served on Official Liquidator attached to the High Court of Gujarat. He has placed on record report dated 13/09/2004 along with report of Auditors appointed for the purpose of scrutiny and investigation. The report states that the affairs of the Transferor Company have not been conducted in any manner prejudicial to the interest of Members of the Company or the public interest. 6 Notice of admission of petition of the Transferee Company has also been served on the Central Government and Smt.P.J.Davawala, learned Addl. Central Government Standing Counsel appears for the Central Government. She has placed on record letter dated 20/09/2004 received from the Registrar of Companies, Gujarat along with communication dated 08/09/2004 from the Regional Director indicating that the Transferor Company is a sick Company, registered with Board For Industrial & Financial Reconstruction under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act,1985 on 12/06/2002 and hence, permission of BIFR may be necessary for proposing above amalgamation. It is further submitted that the Central Government has decided that after bringing the aforesaid fact to the notice of the Hon'ble High Court the matter may be left to the Hon'ble High Court to be decided on merits" (Para 6) "As can be seen from the Minutes of The Joint Meeting the Transferor Company submitted Draft Rehabilitation Scheme in terms of the orders passed by the Bench of BIFR on 16/09/2003 and at the meeting the Secured Creditors viz. Dena Bank, Regional Office, Surat, GSFC, Gandhinagar and GIIC, Surat were represented. As recorded in the Minutes the Transferor Company has entered into one time settlement with all the three Secured Creditors for the amounts mentioned in the Minutes. Furthermore, in the same Minutes it is recorded that the revised DRS, whereunder the Transferor Company is to amalgamate with Transferee Company, has been consented to by the Secured Creditors. It is further recorded in the Minutes that the advantages that would flow on the Scheme of Amalgamation being sanctioned are: "(a) Once the amalgamation takes place, the applicant unit will become part of the Bio-deal Laboratories Pvt.Ltd. which is growing and profitable company. Thus, the applicant company will have immense benefits and can go for future up-gradation and expansion. This will result in to increase in production which will expedite the turnaround of the company make the unit viable at much early stage than envisaged in the scheme. (b) Bio-deal Laboratories Pvt.Ltd., consumes large quantity of corrugated boxes, which amounts to forward integration for USMPL and thus, has a strong synergy for both the companies. (c) Bio-deal Laboratories Pvt.Ltd. will be able to get the benefits of carry forward loss of the applicant company and thus it will be able to save sizeable amount by way of tax which will in turn further help in revival of the applicant unit. (d) Once Usman Paper Mills Pvt.Ltd. is taken over as going concern by way of amalgamation, the paper mill will be operated for three shifts which will also assure additional turnover and it will also contribute by way of higher excise duties and sales-tax to the ex-chequer of the Govt.of India/Gujarat". The minutes further record that "it was decided to submit the minutes of the meeting to BIFR with due recommendation for acceptance of DRS as submitted by the Company"." (Para 8) "No other objections are raised by anybody. In view of the aforesaid fact situation it is apparent that the amalgamation would be in the interest of the Companies, their Members and their Creditors. There is no reason to withhold sanction to the Scheme of Amalgamation. Prayers in terms of paragraph No.15.(a) of Company Petition No.5 of 2004 and Company Petition No.4 of 2004 are hereby granted to the effect that arrangement embodied in the Scheme (Annexure-C) is hereby sanctioned so as to be binding on all Members, Shareholders and other persons concerned under the Scheme of Compromise with effect from the appointed date."(Para 9) "As already recorded in the Minutes of the Meeting held on 10/09/2004, the petitioner Company shall submit the Minutes of the said Meeting through the lead institution and this order shall be subject to the requisite orders of sanction by BIFR." (Para 10);