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2012 (10) TMI 1151 - CALCUTTA HIGH COURTLease granted for a period of 99 years - change of use of the said land from non-IT set up to IT set up - without any intimation to the lessor - Whether transfer of shares by the shareholders of a company to the stranger purchaser of such share amounts to transfer of assets of the company, whether acquired by way of lease or otherwise? - HELD THAT:- Following the decision of the Hon'ble Supreme Court in Bacha F. Guzdar, Bombay Vs. CIT [1954 (10) TMI 2 - SUPREME COURT] as well as of this Hon'ble Court in Kopila Hingorani vs. State of Bihar [2003 (5) TMI 359 - SUPREME COURT], this Court has no hesitation to hold that with the transfer of the share by the promoter shareholder to the present shareholder, namely the transferees of such share, the lease hold interest of the company was not transferred from the promoter shareholder to the present shareholder of the said company. The petitioner-company which obtained the said lease from the Government, still remains the lessee of the said plot of land and its leasehold interest in the said plot of land remains unaffected by transfer of share by the promoter shareholders to the present holders. As such, this Court holds that the restrictive clause regarding transfer of the lease hold interest of the lessee in favour of a stranger, sub-lessee or assignee, does not attract in the present case and as a result, the demand for transfer fees for recognizing the alleged transfer of leasehold interest from the erstwhile shareholders of the said company to the present shareholder, is absolutely illegal and unlawful and as such, that part of such demand, which was made by the concerned authority in the impugned order and/or letter as aforesaid, stands quashed. Whether the petitioner's representation for change of use of the said plot of land submitted on December 20, 2006 can be decided on the basis of the subsequent Notification dated 17th April, 2007 when this Hon'ble Court, while disposing of the earlier writ petition, directed the concerned authority to consider the petitioner's said representation in the light of the notification dated 6th May, 2005? - HELD THAT:- This Court holds that the demand of the permission fees for change of user of the land from a Non-IT set up to IT set up purpose at the rate as prescribed in the subsequent Notification of 2007 which came in to operation on 17th April, 2007, is illegal and unlawful. As such, that part of the impugned order and/or demand made in this regard by the concerned authority, stands quashed. The concerned authority is, thus, directed to raise a fresh demand towards the permission fees for change of use of the said land from non-IT set up to IT set up at the rate as prescribed in the Notification dated 6th May, 2005. The writ petition is, thus, allowed.
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