Debangsu Basak - (1.) The petitioner has assailed a writing dated February 8, 2018 issued by the Collector of Stamp Revenue, Kolkata adjudicating the stamp duty payable in respect of the order dated February 26, 2016 passed by the High Court in Company Petition No. 242 of 2016 connected with Company Application No. 137 of 2016 sanctioning a scheme of amalgamation between the transferor and the transferee companies.
(2.) Learned Advocate appearing for the petitioner has submitted that, the impugned order has proceeded on the basis of Article 23A of the Indian Stamp Act, 1899. He has submitted that, the transferee company is not the beneficiary of any immovable property being transferred to it by virtue of sanction granted to the Scheme of Amalgamation. Therefore, stamp duty for a conveyance of an immovable property is not payable by the transferee company. He has submitted that, Article 23A prescribes half per centum of the value of the issued paid up and subscribed share capital of the transferee company as the stamp duty payable by the transferee company. The impugned order is therefore incorrect. He has drawn the attention of the Court to the proviso to Article 23A and submitted that, the main provision cannot be cut down by the proviso. He has relied upon (Hindustan Ideal Insurance Co. Ltd. v. Life Insurance Corporation of India, 1963 AIR(SC) 1083) in support of such contention. Relying upon 2012 Volume 3 Calcutta High Court Notes page 102 (In re: Emami Biotech Limited & Anr.) he has submitted that, stamp duty is payable by the transferee company even in absence of special provision requiring stamp duty to be payable. However, subsequent to the judgments of the Court rendered in 114 Company Cases 1992 (In re: Gemini Silk Ltd.), 130 Company Cases page 510 (Madhu Intra Ltd. v. Registrar of Companies) and (Hindustan Lever v. State of Maharashtra, 2004 9 SCC 438) Article 23A was introduced to the Indian Stamp Act, 1899. The impugned order misconstrues and misapplies the provisions of Article 23A in the facts of the present case.
(3.) Learned Senior Standing Counsel appearing for the State has submitted that, the State has proceeded on the basis of the stamp duty attracted in the facts of the present case at the rate which is the highest in view of the words "whichever is higher" as appearing in Article 23A. He has submitted that, the impugned order cannot be faulted.;