TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 826
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....f mandamus or any other appropriate writ, order or direction commanding the respondents to record the name of the petitioner M/s Inox Air Products Pvt. Ltd in place of M/s Inox Air Products Ltd. in the revenue record as also all other relevant record of the State Govt." 2. Precisely the facts, which are relevant for the adjudication of the present case are that M/s Superior Air Products Limited was granted permission for establishing industrial unit under S.118 of the Himachal Pradesh Tenancy and Land Reforms Act in 1994 to purchase land at Barotiwala, on which present the petitioner is operating, as is evident from letter dated 5.1.1995 (Annexure P-3). Management of M/s SAPL was taken over by M/s Inox Air Products Limited (IAPL) on 1.4.2000 and aforesaid Superior Air Products Limited was amalgamated with Inox Air Products Limited, pursuant to order dated 10.1.2002 passed by this Court in Company Petition No. 13 of 2001. Simultaneously, Superior Air Products Limited also filed an amalgamation petition before the Bombay High Court under Ss. 391/394 of the Companies Act, which was allowed on 21.3.2002. 3. On 5.7.2002, Superior Air Products Limited submitted a request to the Tehsild....
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....its of both the companies (Annexure P-12). Again vide letter dated 3.8.2015 (Annexure P-13), petitioner while replying to letter dated 31.7.2015, clarified that there was no sale or purchase of land by the company and there was no change in ownership and management and only name of the company had been changed, that too, after approval from the Central Government, after issuance of a fresh Certificate of Incorporation. 9. Subsequently, petitioner vide letter dated 13.10.2015 (Annexure P-14) sought clarification from respondent No.1 on the issue, who clarified vide letter dated 13.1.2016 (Annexure P-2) that a proprietor/partnership firm and a company are two separate legal entities an in such a situation if a company applies for change in its name, then it is clear cut case of transfer of property, which will attract provisions of S.118 of the Act ibid as also the Stamp Act, 1899. In the aforesaid background, petitioner has approached this Court in the instant proceedings seeking reliefs reproduced hereinabove. 10. Pursuant to notice issued in the instant proceedings, respondents have filed reply, wherein facts as noted herein above, have not been disputed, rather stand admitted. ....
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....ox Air Products Ltd." to "M/s Inox Air Products Private Ltd." is liable to pay stamp duty on account of sale, purchase transfer, if any, of the premises owned/possessed by aforesaid company having amalgamated into another company, in view of specific law laid by Division Bench of this Court in JSTI Transformers Pvt. Ltd.( Supra)?" 14. This Court finds that aforesaid question has been elaborately dealt with by Division Bench, while passing the judgment, wherein undersigned was also one of the coauthor. 15. Before ascertaining the rival submissions made by the parties, it would be apt to take notice of instructions dated 16.02.2012, Annexure P-15, which reads as under:- Clarification regarding name change by Companies/firms No. Rev. B.F.(10)-154/2009 Government of Himachal Pradesh Department of Revenue From Principal Secretary-cum-F.C. (Revenue) to the Government of Himachal Pradesh. To 1. The inspector General of Registration SDA Complex, shimla-09, Himachal Pradesh. 2. All the Deputy Commissioners in Himachal Pradesh. 3. All the Tehsildars/Naib Tehsildars, in Himachal Pradesh. Dated; Shimla-171002, the 16th February, 2012 Subject:- Instructions for disposal o....
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....nge n the name has also been given effect to by this Director, Industries, the District Collector concerned will order to effect change in name in revenue record as per procedure laid down in Chapter 8.52 (ii) of " The Himachal Pradesh land Records Manual" and an entry in remarks column of revenue record i.e. Jamabandi, shall be made with red ink giving herein the old name of Company and reference of order in compliance to which the name is changed. Yours Faithfully -Sd- Principal Secretary (Revenue) to the Government of Himachal Pradesh. Endst.No. As above, Dated: Shimla-2 16th February, 2012 Copy forwarded for information and similar necessary action to :- 1. The Settlement Officer, Shimla/Kangra at Dharamshala, H.P. 2. All the Sub-Divisional Magistrates, in Himachal Pradesh. 3. The IRSA-cum-Tehsildar, Stamp Cell, H.P. Sectt. Shimla-02. -Sd- Principal Secretary (Revenue) to the Government of Himachal Pradesh 16. Bare perusal of aforesaid instructions, itself reveals that after passing of order of amalgamation by competent Court of law, company can seek change in its name in record of the Registrar of the Companies, who after verification of the record, would iss....
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.... unreasonable. 19. At this stage, it would be apt to take note of the following para of judgment passed by Division Bench of this Court in JSTI Transformer Pvt. Ltd. Vs. State of Himachal Pradesh (supra). 8. This Court in M/s Fresenius Kabi Oncology Limited (supra) was dealing with a case, where consequent upon request made by the petitioner to incorporate by way of change of its name in the record, respondent-State Authorities demanded a sum of Rs.1,04,21,508/- towards unearned increase /transfer charges on account of alleged violation of Clause 2(xi) of conveyance deed, where Pharma business of the Company, "Dabur India Limited" by way of merger, merged into the new entity, "Dabur Pharma Limited". The respondent-Corporation changed the name of the allottee company i.e. "Dabur India Limited" to "Dabur Pharma Limited", vide order dated 28.11.2003. Later on, petitioner-Company incorporated under the laws of Singapore, acquired 90.89% of total equity share capital of Dabur Pharma Limited on 11.8.2008. The management and control of Dabur Pharma Limited, therefore, came to be changed and its Board reconstituted with the nominee of the petitioner-company. The management of the Compan....
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.... 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, bringing a new set of shareholders in the controlling position of the company in substance has resulted in transfer of ownership and control of the company, and such change should be treated to have resulted in transfer of assets of the company. According to him, the leasehold right was shifting from one entity to another, and for this reason transfer fee was payable. His submission is that this is a case where there is simultaneous transfer of assets including leasehold right from one entity to another along with change of name and in this regard he relied on a judgment of this Court delivered on 8th February 2012 in the case of in Re:- Emami Biotech Ltd. & Anr. [(2012)3 CHN 102] which is also a decision of an Hon'ble Single Judge of this Court. 10. In the case of Bacha F. Guzdar (supra), it has been held by the Hon'ble Supreme Cour....
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....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, rights, powers of every description including all leases and tenancy right, industrial, import and all other licences, of the transferor company without any further act or deed are transferred and vested or deemed to be transferred or vested in favour of the transferee company. Thus, in case of amalgamation no doubt the lease-hold interest of the transferor company stands transferred in favour of transferee company but the such transfer is not contemplated in case of transfer of share by the shareholder of the company to the stranger purchasers of such shares, as it was held in Mrs. Bacha F. Guzdar, Bombay vs. Commissioner of Income Tad, Bombay (supra) by the Hon'ble Supreme Court that a shareholder who buys share does not buy any interest in the property of the company which is a juristic person entirely distinct from shareholder....
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....sfer 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 leasehold right of the company, and transfer fee is sought to be charged on that incident or event. This, in my opinion is not permissible. To borrow the terminology from the fiscal jurisprudence, what is being subjected to transfer fee is the incidence of change of name of the company. Such a situation cannot come within the ambit of the expression "transfer of leasehold right", as stipulated in the notification of 18th December, 2007. The ratio of the judgment of this Court in the case of Emami Biotech Ltd. is not applicable in the facts of this case, as transfer fee is not being charged on any instrument of transfer, but on the basis of request for recordal of change of corporate name. It has not been argued by the State that the very act of transfer of equity-holding of the promoter group gives rise to the obligation of the company to pay transfer fee." 10. Similar issue again arose before this Court in Reckitt Benckiser (India) Private Limited (supra).In that case, petitioner was initially incorporate....
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....rar shall enter the new name in the Register of the Company and issue fresh certificate of registration with new name. Section 13(2) made it crystal clear that no new company was ever created as a result of the change of its name and it is the case of mere addition of word 'private' to its name. Relying upon aforesaid instructions/clarification dated 16.2.2012 issued by the respondent-State, this Court held that respondents erroneously concluded that there is transfer of assets and property by the Company. 11. Bombay High Court in Commissioner of Income-Tax vs. Texspin Engg. & Mfg., (2003) 180 CTR Bom. 497, while dealing with a case where partnership firm was being treated as a company under the statutory provisions of the Companies Act, held that when a firm is treated as a company, there is no conveyance of the property executable in favour of the Limited Company. The vesting of property of firm in the Limited Company was not incidental to a transfer, but statutory. Therefore, there was no question of capital gain. It would be profitable to reproduce para-6 of the aforesaid judgment hereinbelow. "6. ......................... Now, in the present case, it is argued on behalf of....
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....y of the previous firm in the newly incorporated company, therefore, there was no need for any separate conveyance. It was held that a partnership which was treated as a company for the purposes of the Companies Act can be registered under Part 8 of the previous Act (Part 9 of the present Act) and the vesting is provided by Section 263 of the 1913 Act (Section 575 of the present Act). The provision is mandatory and there will be statutory vesting in the corporation so incorporated under the provisions of the Companies Act. The Registrar is bound to give a certificate of registration under Section 262 (present Section 574) which is a conclusive proof of incorporation, vide Section 35 of the present Act that corresponds to Section 24 of the previous Act. Hence, it is clear that no conveyance is necessary when a partnership is converted and registered as a company. However, it is not possible to acquire such title statutorily under this section if the previous firm purports to convey title to the company in which event a separate deed of conveyance is necessary. The Court therefore held that if the constitution of the partnership firm is changed into that of a company by registering i....
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....nd the firm is succeeded by the company. The firm ceases to exist and assumes the status of a company after its registration as a company." 15. In M/s Sozin Flora Pharma LLP (supra), similar dispute arose in context of conversion of petitioner from 'Partnership Firm' to 'Limited Liability Partnership'. Petitioner approached the respondents for effecting the change of its name in the revenue record with regard to certain land but the respondents, while granting permission to reflect such change, directed the petitioner to deposit the stamp duty and registration fee. This court relying upon the aforesaid instructions dated 16.2.2012, in para-5 held as under: "5. Conclusion:- From the above discussion, following conclusions are drawn:- 5(a). Upon conversion of a registered partnership firm to an LLP under the provisions of the Limited Liability Partnership Act, all movable and immovable properties of erstwhile registered partnership firm, automatically vest in the converted LLP by operation of Section 58(4)(b) of the Limited Liability Partnership Act. 5(b). The transfer of assets of firm to the LLP is by operation of law. Being statutory transfer, no separate conveyance/inst....