TMI Blog2012 (10) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... tracting appropriate duty - As per the proposed law scheme of amalgamation and/or arrangement would involve two per cent Stamp Duty whereas the “conveyance” as of date would require payment of duty at the rate of seven per cent. It is for the State to fix the rate. So long the new law does not come in force the existing law would prevail. The parties would have to adhere to the same. - A.P.O. No. 114 of 2012 C.P. No. 398 of 2011 & A.P.O. No. 136 of 2012 C.P. No. 627 of 2011 - - - Dated:- 12-9-2012 - Mr. Ashim Kumar Banerjee And Mr. Shukla Kabir Sinha JJ. Abhrajit Mitra, Jishnu Chowdhury, Dipayan Chowdhury, Subhradal Chowdhury, S.N. Mukherjee, Ratnanko Banerjee, Krishna Raj Thakkar, K. Mallick and A.K. Mishra for the Appellant. Jayanta Mitra, Debangshu Basak and Sakyasen for the Respondent. Somenath Bose and Bhaskar Prasad Banerjee for the Union of India. ASHIM KUMAR BANERJEE.J: PREFACE Both these appeals would relate to a short but important question as to whether a scheme of amalgamation and/or arrangement sanctioned by the High Court under Section 391 of the Companies Act, 1956 (hereinafter referred to as the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters to appear on a subsequent date for appropriate order on the sanction. Hence, these appeals. THE JUDGMENT AND ORDER OF THE LEARNED JUDGE AN ANALYSIS The judgment and order would appear at pages 276-296 of the paper book in the case of ITP Limited. In Gemini Silk Limited VS- Gemini Overseas Ltd.1 the learned single Judge of this Court held that the scheme would require payment of appropriate Stamp Duty that was upset by the Division Bench in the case of Madhu Intra Ltd. Another VS- Registrar of Companies and Others2 . However, the Madhu Intra Ltd. did not take notice of Hindustan Lever Another VS- State of Maharashtra Another 3 delivered by the Apex Court just before the delivery of the judgment. We 1 2003 Volume-114 Company Cases Page-92. 2 2006 Volume-130 Company Cases Page-510 find from the relevant dates, Hindusthan Lever was delivered after the hearing was concluded in Madhu Intra. However, the Madhu Intra was delivered subsequent to the said decision. Hindusthan Lever categorically held, transfer of property through sanction of a scheme of amalgamation of demerger would have all trappings of a sale . The Apex Court judgment would have a greater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91. He distinguished the Madras decision in Automac. He rather relied on the Single Bench decision of our Court delivered by one of us (Ashim Kumar Banerjee,J.) in Peerless General Finance Investment Company Limited. VS- Poddar Projects Limited Another8. He also distinguished Allahabad decision in Hero Motors to say that the State of Uttar Pradesh had relevant amendments to attract Stamp Duty. He lastly distinguished Hindusthan Lever by placing paragraph 32 to 45 to say that the constitutional validity of the State 7 All India Reporter 1997 Supreme Court Page-506 8 2007 Volume-136 Company Cases Page-160 (Calcutta) amendment came up for consideration of the Apex Court. The Apex Court held the Maharashtra amendment intra vires. It would be premature for this Court to decide on the issue without law being enacted in the State. He lastly contended, Maharashtra, Uttar Pradesh, Madras did have appropriate amendments whereas the State was yet to amend the law. So long it is was done, it would be premature for this Court to say that the Stamp Duty was payable. He lastly relied on the decision in the case of State of Orissa VSSudhansu Sekhar Misra Others9 to say, Madhu Intra would s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articularly paragraphs 4, 5 and 6 to support his contention that on 11 2001 Volume-VII Supreme Court Cases Page-573 amalgamation the transferor company would lose its identity hence, it could not be said to be a transfer within the meaning of the said Act of 1899. CONTENTIONS OF THE STATE Mr. Jyanta Mitra Mr. Mitra, learned senior counsel specially engaged by the State to defend them in these appeals made elaborate submissions on the proposition of law that would come for discussion as relevant in the present case. Mr. Mitra first drew our attention to page 27 of the paper book in case of Emami wherein the scheme itself would provide exemption of Stamp Duty on the strength of the notification hence, the learned Judge rightly decided the issue that would take care of the first contention of Mr. Mukherjee as to the competence of the learned Company Judge. On the second contention, Mr. Mitra drew our attention to the scheme involved in both the cases that would show that properties including immovable properties would be involved in the process of transfer through scheme. He contended 12 2011 Volume-IV Supreme Court Cases Page-266 13 All India Reporter 1991 Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter 1986 Supreme Court Page-1218 UNION OF INDIA Mr. Somenath Bose Mr. Bose being assisted by Mr. Bhaskar Prasad Banerjee adopted the submissions made by the State through Mr. Mitra learned senior counsel. REPLY Abhrajit Mitra Mr. Mitra distinguished the State of Himachal Pradesh and contended, pre-amendment would not, in any way, support paragraph 13 of the judgment and order impugned. He would contend, the General Radio would have no application as it dealt with the tenancy law vis-a-vis the protection of the landlord as contained in Section 14 of the Tenancy Law. Krishna Raj Thakkar Mr. Thakkar replied on behalf of the Emami. According to him, even Jemini Silk made the 1937 notification applicable in the State. Such decision merged in Madhu Intra that would be squarely binding upon us and we could not avoid the same without referring it to a larger bench. He would further contend, J.K. Drugs Pharmaceuticals Ltd.16 relied on the relaxation as available in the notification. OUR VIEW We already referred to the cases cited by the parties including the brief proposition for which that were cited. We would however, restrict our discussion concentr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer of Property Act, 1882 to mean an act by which a living person conveys property, in present or in future to one or more other living persons. Company or association or body of individuals, whether incorporated or not, have been included amongst living person in this section. It clearly brings out that a company can effect transfer of property. The words inter vivos in the context of Section 394 of the Companies Act would include within their meaning also a transfer between two juristic persons or a transfer to which a juristic person is one of the parties. The transaction between a minor or a person of unsound mind with the other person would not be recognised in law, though the same is between two living beings, as they are not juristic persons in the eye of the law who can by mutual consent enter in a contract or transfer the property. The company would be a juristic person created artificially in the eye of the law capable of owning and transferring the property. Method of transfer is provided in law. One of the methods prescribed is dissolution of the transferor company by merger in the transferee company along with all its assets and liabilities. Where any propert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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