Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

Shakti Insulated Wires Pvt. Ltd. & Others Versus Great View Properties Pvt. Ltd. & Others

Transfer of shares - Transfer of assets and liabilities between a transferor and transferee company in the case of amalgamation - whether transfer of assets in the case of a scheme of amalgamation between transferor and transferee companies is a voluntary transfer and not an involuntary transfer by operation of law? - Held that:- A proper reading of the Articles seems to be that any transfer of shares occasioned by a scheme of amalgamation sanctioned by the court is not a transfer of shares with .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

regoing Articles. Such transmission merely requires production of evidence that the claimant sustains the character in respect of which he proposes to act under Article 39 or has the requisite title. In other words, all entitlements to shares other than by virtue of transfers in pursuance of Articles 21 to 38 are covered by Article 39 and must abide by it.

Even if its case be covered under the transmission clause of Article 39, it can be registered as a member in respect of the shares .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the auditors of the company within the meaning of Article 25.

Accordingly, whilst the findings of CLB in the impugned order are not disturbed, the operative order passed by CLB is modified by substituting Clause 'C' of para 21 of the impugned order by the following clause

C The Appellant company at its option shall either register the first Respondent as a shareholder in its register of members or allow the first Respondent to sell 1980 shares held by the first Respondent .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

enior Advocate with Mitesh Naik I/b. Dhru & Co For the Respondent : Mr. Astad Randheria with Ms. Sujata More I/b. Desai Desai Carrimjee & Mulla JUDGMENT The company appeal impugns an order of the Company Law Board, Mumbai Bench ( CLB ) allowing the petition of the first Respondent, under Section 111 of the Companies Act, 1956 ( Act ), declaring it to be the owner of 1980 shares of the Petitioner company and directing the latter to rectify the register of members accordingly. 2. The facts .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion on the ground that the transfer of shares was in breach of the relevant Articles of Association providing for a right of pre-emption. This rejection was challenged by the first Respondent before the CLB under Section 111 of the Act. The CLB allowed the petition and directed rectification of the register. 3. Learned Counsel for the Appellants submits that the CLB has erred in law by treating the transfer of shares under the scheme of amalgamation as a case of transmission by operation of law .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he Appellant provide for transfer and transmission of shares. Article 22 restricts transfers of shares except after exhaustion of rights of pre-emption provided in Articles 23 to 38 which follow. Article 39 provides for a 'transmission clause', where a person becomes entitled to shares other than by transfer in accordance with the foregoing Articles. In case of a transmission, the Articles providing for rights of pre-emption do not apply. The controversy between the parties really involv .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

res in the Company shall be transferred unless and until the rights of Pre-emption hereinafter conferred shall have been exhausted. (23) Except where the transfer is made pursuant to article 29 or Article 38 hereto, the person proposing to transfer any share (hereinafter called the Proposing Transferor ) shall give notice in writing (hereinafter called a Transfer Notice ) to the Company, that he desires to transfer the same. Such notice shall specify the sum he fixes as the fair value and shall .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

te notice in respect of each. A transfer Notice shall not be revocable except with the sanction of the Directors. (24) If the Company shall within the space of 28 days after being served with a Transfer Notice find a Purchasing Member and shall give notice thereof to the Proposing Transferor he shall be bound upon payment of the fair value in accordance with Article 25 thereof, to transfer the share to the Purchasing Member.. (27) If the Company shall not within the space of 28 days after being .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ther, sister, nephew, niece, cousin, wife or husband of such member and any share of a deceased member may be transferred by his executors or administrators or other legal representatives to any child or other issue, son-in-law, daughter-in law, father, mother, brother, sister, nephew, niece, cousin, widow or widower of such deceased member (to whom such deceased member may have specifically bequeathed the same) and shares standing in the name of the trustees of the will of a deceased member may .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uch member, and the Company shall not be bound to recognise such executors, administrators or holder of succession certificate unless such executors, administrators or holder of succession certificate shall have first obtained Probate or Letters of Administration or a Succession Certificate, as the case may be, from a duly constituted Court in India. The relevant Article providing for transmission is quoted below : (39) Subject to the provisions of Article 38 any person becoming entitled to shar .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o transfer hereinbefore contained, transfer such shares. This clause is hereinafter referred to as The Transmission Clause. 6. The main plank of the Appellant's case is that transfer of assets in the case of a scheme of amalgamation between transferor and transferee companies is a voluntary transfer and not an involuntary transfer by operation of law. Learned Counsel for the Appellant relies on the judgment of the supreme Court in the case of General Radio & Appliances Co.Ltd. vs. M.H. K .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mpany in effect purchases is the transferor company or its undertaking for a specified sum which is ordinarily paid in the form of allotment of shares of the transferee company to the shareholders of the transferor company. The valuation is based on the net of the transferor company's assets and liabilities. This aspect would have an important bearing on the question which we are considering, as I have explained below. 7. If one has regard to the Articles of the Appellant, Articles 21 to 38 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or person approved by the Board of Directors, who is willing to purchase the shares at the price or at the option of the purchasing member at a fair value to be determined by the auditors of the company in accordance with Article 25. That is the purport of Article 23. If the company is served with a transfer notice, as provided in Article 24, it has to find a purchasing member and give a notice thereof to the proposing transferor within the space of 28 days. In case of any difference between th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

appointed any one Director or Secretary of the company as his agent to execute the transfer to the purchasing member and upon execution of such transfer, the company shall hold purchase monies in trust for the proposing transferor. In such a case the name of the purchasing member has to be entered in the register as the holder of the shares. Under Article 27, if the company fails to find a purchasing member and give notice within the space of 28 days, the proposing transferor shall, at any time .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the scheme of amalgamation, is not of shares at any particular value. Secondly, the transfer occurs upon or subject to the court sanctioning the scheme of amalgamation. In a given case, the Court may not sanction a scheme, in which case there would be no question of transfer of any shares. In the premises, whenever a scheme is proposed it would be absurd to expept the transferor company to actually give a notice of transfer within the meaning of Article 23 and then subject itself to transfer .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

play, that is to say, the company not finding within 28 days of the transfer notice a purchasing member or giving a notice in accordance with Article 24. Even then the transfer must be at a price not below the fair value determined by the auditors of the company. This again is unfeasible and unwarranted within the framework of a scheme of amalgamation. A proper reading of the Articles seems to be that any transfer of shares occasioned by a scheme of amalgamation sanctioned by the court is not a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n by transfer in accordance with the foregoing Articles. Such transmission merely requires production of evidence that the claimant sustains the character in respect of which he proposes to act under Article 39 or has the requisite title. In other words, all entitlements to shares other than by virtue of transfers in pursuance of Articles 21 to 38 are covered by Article 39 and must abide by it. 8. The CLB is, accordingly, perfectly justified in coming to the conclusion that the transfer of share .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     Latest Happenings     ↓  

Forum: Input tax credit

Forum: Excise duty credit on finished stock at additional place of business.

Forum: 3B mistake

Forum: Cess paid instead of SGST

Forum: Manpower Service provider

Forum: Due date of Filing TRAN-1

Highlight: Diversion of income at source - Joint venture agreement - 97% of the receipt transfer to M/s TRG Industries (P) Ltd. - scope of the agreement - it is diversion by overriding title - not taxable in the hands of assessee - HC

Highlight: Expenditure on eligible projects or schemes u/s 35AC - After 01.04.2017 the legislature desired to withdraw such deduction. - The Union legislature was competent to introduce such amendment - HC

Highlight: Transfer of trading assets at cost price, the profit component also stood transferred to the outgoing Directors, which otherwise belonged to the Company - the fact that AO has made the addition in the hands of the Directors would not make any difference - additions confirmed - HC

Highlight: The interest u/s 234B of the Act cannot go beyond the stage of S.245D(I) before the Settlement Commission - HC

Highlight: Galvanized iron pipe is a different commercial commodity than a iron pipe, therefore the activity of galvanization in our considered opinion amounts to manufacture - Deduction u/s 80-IB allowed - HC

Highlight: Penalty u/s 271C - non deduction of TDS on interest paid to sister concerns in terms of Section 194A - Levy of penalty confirmed - HC

Highlight: Disallowance of interest - reference to section 179 - The legislature has also recognised, that the doctrine of lifting of veil in the matter of tax dues is to be applied to prevent fraud etc. and not where the company has suffered despite its normal bona fide function. - HC

News: RBI Reference Rate for US $

Notification: Amendment in Notification No. S.O. 3118(E), dated the 3rd October, 2016

Highlight: Discount on ESOP to be allowed as business expenditure u/s 37(1), during the years of vesting on the basis of percentage of vesting during such period, subject to upward or downward adjustment at the time of exercise of option.

Notification: Central Government appoints the 20th September, 2017 as the date on which proviso to clause (87) of section 2 of the Companies Act 2013, shall come into force

Notification: Companies (Restriction on number of layers) Rules, 2017

Highlight: Penalty u/s 271(1)(c) - additional income disclosure - surrender of income post survey u/s 133A - he disclosure made by the assessee is voluntary in nature, in the revised return - no penalty

Highlight: Reopening of assessment - notice u/s 148 issued on the directions of JCIT / CIT - a perusal of reasons for initiating reassessment proceedings clearly show that they are against the sprit of provisions u/s 147

Notification: All Industry Rates of Duty Drawback Schedule

Highlight: MAT - Adjustment to book profit - computation u/clause (f) of Explanation-1 to section 115JB(2) is to be made without resorting to the computation as contemplated u/s 14A r.w.Rule 8D of I.T. Rules.

Notification: The Customs and Central Excise Duties Drawback Rules, 2017

Highlight: Addition on account of alleged suppression of service value received - the addition made simply believing the Form 26AS will be an arbitrary exercise of power which cannot be sustained

Notification: Exempts intra state supply of heavy water and nuclear fuels from DAE to NPCIL

Notification: Seeks to amend notification No. 12/2017-UTT(R) to exempt right to admission to the events organised under FIFA U-17 World Cup 2017

Notification: Seeks to amend notification No. 11/2017- UTT(R) to reduce CGST rate on specified supplies of Works Contract Services

Highlight: Liability to pay duty on import of software - Though no authorization was given by the appellant to DHL, it is an undisputed position that the software has, in fact, been ordered by the appellant and have been delivered to them by DHL - the appellant is to be considered as the importer

Notification: Exempts inter-state supply of heavy water and nuclear fuels from DAE to NPCIL

Notification: Seeks to amend notification No. 09/2017-IT(R) to exempt right to admission to the events organised under FIFA U-17 World Cup 2017

Notification: Seeks to amend notification No. 08/2017-IT(R) to reduce CGST rate on specified supplies of Works Contract Services

Notification: Exempts intra state supply of heavy water and nuclear fuels from DAE to NPCIL

Notification: Seeks to amend notification No. 12/2017-CT(R) to exempt right to admission to the events organised under FIFA U-17 World Cup 2017

Notification: Seeks to amend notification No. 11/2017-CT(R) to reduce CGST rate on specified supplies of Works Contract Services.

News: Tax on fuel more important for a dry state like Gujarat

Highlight: For an ayurvedic medicine to be classified under Chapter 30 has to pass the test whether it is for cure of any disease. If the same is only meant for care, then such product would not fall under medicament.

Highlight: Demand of interest - the period of limitation that applies to a claim for the principal amount should also apply to the claim of interest thereon.

Highlight: Government issues new notifications under CGST, IGST and UTGST to grant fresh exemptions in respect of certain supplies.

Circular: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 117 of the Central Goods and Services Tax Rules, 2017

Forum: Construction of single unit bungalow

Article: SIMPLIFIED E-WAY BILL UNDER GST

Article: SERVICES UNDER REVERSE CHARGE UNDER GST REGIME

Highlight: Rate of exchange of conversion of the foreign currency with effect from 22th September, 2017 - Notification

Highlight: Companies (Acceptance of Deposits) Second Amendment Rules, 2017 - Notification

Highlight: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. reg. - Circular

Highlight: Amendment to Paragraph 2.72 (b) of the Handbook of Procedures of the Foreign Trade Policy (FTP) 2015-20 - Public Notice

Notification: Amendment in Appendix 3 (SCOMET items) to Schedule- 2 of ITC (HS) Classification of Export and Import Items 2012

Circular: Amendment to Paragraph 2.72 (b) of the Handbook of Procedures of the Foreign Trade Policy (FTP) 2015-20

Notification: Companies (Acceptance of Deposits) Second Amendment Rules, 2017

Notification: Rate of exchange of conversion of the foreign currency with effect from 22th September, 2017



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version