TaxTMI 
TaxTMI 
2018 (8) TMI 2103
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....dent have also been sought to be quashed and set aside. 2. Before coming to the question of admissibility of the relief sought in the writ petition, it is desirable to refer to the facts in a nut-shell. Consequent upon the execution of conveyance/sale deed, Annexure P-2, Industrial Plot No.19, situated in the Industrial Area known as HPSIDC, SFS, Industrial Area, Baddi, District Solan, H.P. was alloted by the respondent-Corporation to 'Dabur India Limited', a Company incorporated under the Companies Act. Clause 2(xi) of the conveyance deed allegedly violated reads as follows: "(xi) The vendee shall not sell, lease out, transfer, assign or otherwise part with the possession of the plot or building erected thereon either in whole or part except with the prior written approval of the Managing Director of the vendee/Corporation. The Managing Director of the Corporation shall have the right to refuse such requests at his absolute discretion. In the event of such consent being given the Corporation may impose such terms and conditions as it deemed fit and the Corporation shall be entitled to claim and recover a portion of the unearned increase in the value (i.e. the difference betwe....
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....pplementary transfer deed qua plot is executed in favour of the petitioner. Such demand was reiterated vide subsequent demand notices/lease dated 19.02.2010 and 08.04.2010, Annexure P-11 and Annexure P-12 respectively. 5. In a nut-shell, the complaint is that the demand has been raised by the respondent on an erroneous assumption that 'Dabur Pharma Limited' has by effecting transfer by way of sale of shares has transferred, assigned and parted with possession of the plot allotted to it and thereby violated Clause 2(xi) of the conveyance deed. As per further case of the petitioner, allottee Company 'Dabur Pharma Limited' by a special resolution sought approval of the Central Government for change of its name. The Registrar of the Companies NCT of Delhi on 9th January, 2009 accorded its approval and notified the change of its name from 'Dabur Pharma Limited' to 'Fresenius Kabi Oncology Limited' vide Notification, Annexure P-1. Mere change of name of allottee Company do not in any manner affect its entity or its continuity as the same entity. For all practical purposes the allottee Company remains the same but with the changed name i.e. the petitioner herein and continue to enjoy the....
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...., there is no registered conveyance/sale deed suggesting that the allottee Company i.e. 'Dabur Pharma Limited' has transferred all rights, title and interests in the plot in favour of the petitioner-Company. Agreement, Annexure R-2 is being mis-construed by the respondent as a conveyance deed qua transfer of the plot by the 'Dabur Pharma Limited' in favour of the petitioner-Company. The same, as a matter of fact, is a share purchase agreement because as per the case of the petitioner, it has purchased 90.89% share capital of the allottee Company i.e. 'Dabur Pharma Limited'. As a matter of fact, the Company i.e. 'Dabur Pharam Limited' even on purchase of its shares by the petitioner-Company remains the same. On purchase of capital shares by the petitioner-Company, only its Board has been re-constituted with the nominee of the petitionerCompany. The name of 'Dabur Pharma Limited' also got changed as 'M/s Fresenius Kabi Oncology Limited', the petitioner herein by the competent authority i.e. the Registrar of Companies, National Capital Territory of Delhi and Haryana at Delhi. The Notification published in the official gazette in this regard is Annexure P-1. The present, as such, is no....
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....name the petitioner-Company cannot be saddled with an independent obligation to pay transfer fee. It has, therefore, been held in the judgment supra that no demand for transfer fee could have been raised against the petitioner-Company as a condition precedent for recordal of its name as a lessee on the ground that there has been transfer of leasehold rights. This judgment reads as follows:- "8. Main case of the petitioners, however, is that change of the name of a company does not constitute transfer of leasehold right or any assets of the company. In this regard, Mr. Basu has relied on a judgment of the Supreme Court in the case of Bacha F. Guzdar Vs. Commissioner of Income Tax, Bombay (AIR 1955 SC 74), Kalipada Sinha Vs. Mahalaxmi Bank Ltd. (AIR 1966 Cal 585), W.H. Targett (India) Limited Vs. S. Ashraf reported in [2008(3) Cal LT 362] and an unreported judgment of this Court in W.P. No. 18668(W) of 2012 M/S. Din Chemicals and Coatings Pvt. Ltd & Anr. Vs. The State of West Bengal and Ors delivered on 5th October, 2012. 9. Mr. Susobhan Sengupta, learned counsel appeared on behalf of the State in this matter. His submission is that on change of equity shareholding pattern, bring....
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....holders. The dividend is a share of the profits declared by the company as liable to be distributed among the shareholders. Reliance is placed on behalf of the appellant on a passage in Buckley's Companies Act, 12th Ed., page 894, where the etymological meaning of dividend is given as dividendum, the total divisible sum but in its ordinary sense it means the sum paid and received as the quotient forming the share of the divisible sum payable to the recipient. This statement does not justify the contention that shareholders are owners of a divisible sum or that they are owners of the property of the company" 11. The same principle was followed in the case of Din Chemicals & Coatings Pvt. Ltd. (supra), and it has been held in this decisions:- "Let me now consider as to how far the principle laid down in the said decision of the Hon'ble Supreme Court is applicable to the facts of the instant case. I have already indicated above that the case which was before the Hon'ble Supreme Court was a case of amalgamation of the two companies which is not the case before this Court. In case of amalgamation of two companies the transferor company losses its existence and all the property, ....
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.... 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." 12. The legal impact of change of the name a company has also been discussed in the case of Kalipada Sinha (supra), and it was held in that judgment:- "It will be convenient to dispose of the point which was already taken in the Court below, viz., that no such amendment could be made by the Executing Court. What has been argued is that the Executing Court can only grant the amendment that is provided under Order 21, Rule 16 or Rule 17. Obviously, the amendment asked for does not come within those provisions. In my opinion, the whole approach is defective. The argument proceeds on the tooting that an application for execution was pending and in course thereof there had been a transfer of the interest of the decree-holder ....
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....g on the decision of the Supreme court in the case of New Horizons Ltd. Vs. Union of India [(1995)1 SCC 478], he urged this Court to lift the corporate veil in this case to examine the actual intention of the shareholders of the company. Mr. sen gupta also referred to the judgment of this Court in the case of Emani Biotech Ltd. (supra), in which it has been held that an order sanctioning a scheme of amalgamation or demerger under Section 394 of the Companies Act answers to the description of the words "instrument" and "conveyance" within the meaning of the Stamp Act applicable to this State, and is, accordingly exigible to stamp duty. 15. So far as these two petitions are concerned, Dabur Pharma Limited became lessee of the land in question through arrangement approved by this Court. Leasehold right of Dabur Pharma Limited has been recognized by the State authorities. On 11th August, 2008 the majority holding of Dabur Pharma Limited was transferred to the parent company of the petitioner. Whatever transfer had taken place was at that point of time between the two entities. The consequential act of change of corporate name of the company is sought to be treated as transfer of leas....
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.... identity of the shareholders with that of the company, which can be done on certain exceptional circumstances. This dispute does not require lifting of corporate veil, for the reasons I have already discussed. I accordingly hold that no demand for transfer fee can be raised on the petitioner company as a condition precedent for recordal of its name as a lessee, on the ground that there has been transfer of leasehold right. The licence of the petitioner company cannot be withheld under the 2000 Order also for this reason. 18. I accordingly quash the impugned demand dated 26th October, 2010, the copy of which have been made Annexure 'P11' in W.P. 24788(W) of 2010 as also the order of the District Magistrate which is impugned in the second writ petition, registered as W. P. 26049(W) of 2014, a copy of which has been made Annexure 'P7' to the second writ petition. 19. I direct the authorities to record the name of the petitioner company as a lessee on compliance of all other relevant formalities, if any, in respect of the subject plot and also grant the petitioner company licence in terms of the 2000 Order if the petitioner company is otherwise eligible for such licence. This exer....