TaxTMI 
TaxTMI 
2023 (10) TMI 154
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....rned Single Judge, restraining the respondent no.2 from giving effect to the impugned notice of termination. 4. The respondent no.2 preferred an appeal numbered as APOT No. 175 of 2014, against the said order. On September 19, 2014, the Division Bench taking up the appeal dismissed the appeal and allowed the writ petition itself. 5. The respondent no.2 preferred a special leave petition numbered as SLP No. 036170 of 2014, which was admitted and numbered as Civil Appeal No. 2201 of 2020. The Supreme Court ultimately dismissed the appeal on March 18, 2020. 6. During the pendency of the appeal before the Supreme Court, the petitioner no.1 entered into a scheme of amalgamation with five group companies including Sona Promoters Pvt. Ltd. in terms of all assets and liabilities of the said group companies, which were to vest in the petitioner no.1. By an order dated March 5, 2020 passed by the National Company Law Tribunal (NCLT), Kolkata Bench, the scheme of amalgamation was sanctioned and the leasehold rights of Sona Promoters stood transferred and vested in the petitioner no.1-company. 7. By its letter dated July 15, 2020, the petitioner no.1 called upon the respondent no.1 to muta....
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.... threat of eviction if the petitioners does not pay the transfer fees of Rs.18,76,000/-. The respondent no.1 has relied on Section 108 of the Transfer of Property Act, and Clauses 3(j) and 3(l) of the Deed of Lease. 15. Apropos such argument, learned counsel for the petitioners submits that the stipulation of taking prior approval before entering into a scheme of amalgamation is neither a pre-condition nor is mandatory, inasmuch as no penal consequence is specified for non-compliance of the same. 16. Clause 3(l) indicates that only if there was a change in identity or character of the lessee would the lessee be liable to pay transfer fees. It is submitted that the respondents have cited Maan Concast Pvt. Ltd. and Another Vs. West Bengal Industrial Development Corporation Ltd. and Others, reported at 2017 SCC OnLine Cal 19426 and Allenby Garments Pvt. Ltd. & Anr. Vs. West Bengal Industrial Development Corporation Ltd. and Others, reported at 2018 SCC OnLine Cal 3508 both of which are not applicable to the present case. It is argued that the amalgamation between the two companies having the same directors and shareholders, as in the present case, should not be treated as transfer a....
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.... 2007 and March 04, 2009, Sona Promoters Pvt. Limited was precluded from transferring the land and/or subletting, assigning and/or parting with possession without prior permission of the lessor. 23. The scheme of amalgamation was filed before the NCLT, Kolkata Bench by five companies including the petitioner no.1 in terms of Section 230 read with Section 232 of the Companies Act, 2013. Hence, it was a voluntary transfer between the four transferee companies and the transferor company. By virtue of such amalgamation, the leasehold property of Sona Promoters, which was shown as an asset of the said entity, got transferred to and vested in the petitioner no.1-company. 24. By reason of such transfer, it is argued, a sub-tenancy was created, in support of which proposition learned counsel for the respondent no.1 cites M/s. General Radio and appliances Co. Ltd. and others Vs. M.A. Khader (Dead) By LRS., reported at (1986) 2 SCC 656. It is argued that admittedly no permission of the lessor was taken before parting with possession. Even in case of an involuntary transfer or transfer of tenancy by virtue of a scheme of amalgamation sanctioned by the court, it would be deemed to be a trans....
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....ercial contract entered into between the parties. 32. It is next argued by respondent no.1 that the litigation between the parties before the Supreme Court was confined to construction of structures on a vacant land within the stipulated time provided under the lease as contained in Clause 2(g) of the lease deeds. Seeking prior permission for a scheme of amalgamation had nothing to do with the said litigation. 33. In any event, the order of eviction had been set aside by the Division Bench of this Court on September 19, 2014 and the order of NCLT dated March 5, 2020 was passed six years thereafter. The writ petitioner, in the meantime, treated the leasehold property as a subsisting property of Sona Promoters and as one of the assets for the transfer for the purpose of amalgamation. Therefore, "pendency of litigation" is merely an afterthought. It is reiterated that prior consent was mandatorily to precede transfer. 34. Thus, it is argued, the petitioners are trespassers and the writ petition ought to be dismissed. 35. To adjudicate the issues involved herein, the Agenda Notes of the 353rd meeting of the Board of Directors of the WBSIDCL held on June 03, 2019 acquire importance.....
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....mation, the same "may be considered as treated as Transfer case as per norms of this Corporation" as per the WBSIDCL itself, subject to fulfillment of certain terms. Hence, the WBSIDCL waived the precondition of prior approval by taking up for consideration the request of the petitioners for approval of transfer, after the actual transfer was effected. 42. Being a public authority, the respondent no.1/WBSIDCL has to be placed on a higher pedestal in terms of transparency and reasonableness of action. The actions of the respondent no.1, unlike a private lessor, cannot be arbitrary or contrary to its own guidelines. 43. In the present case, the WBSIDCL insisted upon payment of Rs.18,76,000/- as transfer charges plus GST Rs.3,37,680/-. 44. However, as indicated earlier, the General Policy for transfer excludes cases of amalgamation of the lessee within its group companies from the purview of "transfer". 45. The only rider is that there has to be a prior intimation, which has been waived in the present case by the WBSIDCL itself by taking up for consideration the petitioners" request for such transfer. 46. In the present case, nothing has been produced by the respondents to rebut ....
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....d minutes of meeting of the WBSIDCL itself, as annexed to the opposition of the WBSIDCL. As pointed out above, an amalgamation of the lessee within its group companies is not considered as transfer for the purpose of charging transfer fees under the said policy of the WBSIDCL. Thus, even if there was a transfer as contemplated in the cited judgments, the same did not fall within the purview of "transfer" for the purpose of charging transfer fees by the WBSIDCL in the present case. 52. The petitioners have cited K. Shyam Kumar"s case, where the Supreme Court, while adjudicating in judicial review on a recruitment process in service law, observed that the Wednesbury principle and principle of proportionality applied to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue could have arrived at it. It was observed that proportionality requires the court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. 53. There cannot be any quarrel with the same as a general proposition of l....