9911796707
TMI Blog2016 (2) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bombay Stamp Act, 1958 (now the Gujarat Stamp Act, 1958), the order was liable to payment of stamp duty, in respect of the properties and assets of transferor company conveyed to and in the name of transferee company, as per Article 20(c) of the Schedule I to the Act. Copy of order was presented before the stamp authority for payment of stamp duty. The stamp authorities took view that the same was presented after period of one year contemplated under Section 40 of the Stamp Act. 2. The Collector and Superintendent of Stamps by his order dated 03rd July, 2008 required the petitioner to pay deficit stamp duty amount of Rs. 05,89,340/- under Article 20(d) and Rs. 01,00,000/- towards penalty under Section 39(1)(b) of the Act. Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs obtained from the Shareholders and the Secured and Unsecured Creditors, approving the Scheme, having been placed on record vide order dated 26/12/2003 in Company Application Nos. 599 & 600 of 2003. 4 After the petitions were admitted the same were duly advertised in Newspapers "Indian Express" (English Daily)- Vadodara Edition and "Gujarat Mitra" (Gujarati Daily)-Surat Edition, on 24/03/2004. The publication in Government Gazette was dispensed with as directed in order dated 11/3/2004. No one has come forward with any objections to the petitions even after publication of the advertisement. 5 Notice of admission of petition of Transferor Company was served on Official Liquidator attached to the High Court of Gujarat. He has placed on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urat were represented. As recorded in the Minutes the Transferor Company has entered into one time settlement with all the three Secured Creditors for the amounts mentioned in the Minutes. Furthermore, in the same Minutes it is recorded that the revised DRS, whereunder the Transferor Company is to amalgamate with Transferee Company, has been consented to by the Secured Creditors. It is further recorded in the Minutes that the advantages that would flow on the Scheme of Amalgamation being sanctioned are: "(a) Once the amalgamation takes place, the applicant unit will become part of the Bio-deal Laboratories Pvt.Ltd. which is growing and profitable company. Thus, the applicant company will have immense benefits and can go for future up-grad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition No.4 of 2004 are hereby granted to the effect that arrangement embodied in the Scheme (Annexure-C) is hereby sanctioned so as to be binding on all Members, Shareholders and other persons concerned under the Scheme of Compromise with effect from the appointed date." (Para 9) "As already recorded in the Minutes of the Meeting held on 10/09/2004, the petitioner Company shall submit the Minutes of the said Meeting through the lead institution and this order shall be subject to the requisite orders of sanction by BIFR." (Para 10) (emphasis for the present case) 4. Heard learned advocate Mr.Gaurang Bhatt and learned Assistant Government Pleader Ms.Jyoti Bhatt. 5. Having a useful glance over the statutory provisions relevant to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed by this section." 5.2 Section 40 relied on by the stamp authorities for contending period of one year reads as under. "40. Instruments unduly stamped by accident If any instrument chargeable with duty and not duly stamped, not being an instrument chargeable with a duty of twenty naye paise or less is produced by any person of his own motion before the Collector within one year from the date of its execution or first execution, and such person brings to the notice of the Collector the fact that such instrument is not duly stamped and offers to pay to the Collector the amount of the proper duty, or the amount required to make up the same, and the Collector is satisfied that the omission to duly stamp such instrument has been occasione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not presented for the purpose of stamp duty within one year therefrom. The period of one year for the purpose of applying the said time limit under Section 40 was counted erroneously, especially when the order of sanctioning the Scheme of Amalgamation was subject to the approval to be granted by the BIFR. The order and the Scheme sanctioned thereunder was to come into force at a later date only upon sanction being accorded by the BIFR which was accorded on 07th June, 2005. Period of one year shall have to be reckoned from the said date of sanction by BIFR. 6.2 When the order under Section 394 of the Companies Act sanctioning the Scheme of Amalgamation is made chargeable to duty, levy of duty is not on the order as such, but it is on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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