Gujarat High Court
Ambuja Cements Limited vs Chief Controlling Revenue ... on 10 February, 2023
Bench: Ashutosh Shastri
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/STAMP REFERENCE NO. 1 of 2020
With
R/STAMP REFERENCE NO. 2 of 2020
With
R/STAMP REFERENCE NO. 3 of 2020
With
R/STAMP REFERENCE NO. 4 of 2020
With
R/STAMP REFERENCE NO. 5 of 2020
With
R/STAMP REFERENCE NO. 6 of 2020
With
R/STAMP REFERENCE NO. 7 of 2020
With
R/STAMP REFERENCE NO. 1 of 2021
=============================================
AMBUJA CEMENTS LIMITED
Versus
CHIEF CONTROLLING REVENUE AUTHORITY
=============================================
Appearance:
Mr. Ashish Kumar Singh for Mr. Bhavesh Choksi for the applicant in
Stamp Reference No.1 of 2020
Mr. Mihir Joshi, Senior Advocate with Mr. Sandip Singhi for Singhi &
Company for the applicants in Stamp Reference No.2, 4, 5 and 7 of 2020
Mr. Tushar Hemani, Senior Advocate with Mr. Jaimin Dave for the
applicant in Stamp Reference No.4 of 2020
Ms. Manisha Lavkumar Shah, Government Pleader with Mr. Chintan
Dave, Mr. D.M. Devnani and Ms. Nidhi Vyas, learned Assistant
Government Pleaders for the respondent.
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date :10/02/2023
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
1. These stamp references are made under Section
54(1A) of the Gujarat Stamp Act, 1958 (hereinafter
referred to as 'the Stamp Act') by the Chief Controlling
Revenue Authority, Gujarat State, Gandhinagar for the
opinion of this Court.
2. Though questions of law in each of this stamp
reference would overlap, the facts in each case and would
differ partially and as such, the facts are narrated
independently and the questions of law are dealt with
collectively.
RE: STAMP REFERENCE No. 1 OF 2020
3. A scheme of amalgamation between Holcim (India)
Private Limited with Ambuja Cement Limited was
presented before this Court for sanctioning the said
scheme. The said scheme came to be sanctioned by the
Company Court i.e. High Court of Gujarat on 18.3.2014
and pursuant to the same, the applicant - Ambuja Cement
Limited filed an application dated 15.5.2014 before the
Collector under provisions of Section 31(1) of the Stamp
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Act seeking opinion as to proper stamp duty leviable on
the order of sanction of the scheme by the Company
Court. The Collector, by order dated 26.2.2019, ordered
for recovering deficit stamp duty of Rs.15 crore along
with penalty of Rs.3 crore from the applicant company on
the order of sanctioning the scheme dated 18.3.2014
passed by the Company Court.
4. Being aggrieved by the aforesaid order dated
26.2.2019 passed by the Collector & Additional
Superintendent of Stamps, the applicant challenged the
same under Section 53(1) of the Stamp Act before the
Chief Controlling Revenue Authority who, by order dated
19.11.2019, confirmed the order passed by the Collector
dated 26.2.2019 after giving opportunity of hearing to the
applicant by raising seven (7) questions of law. Hence
this reference.
RE: STAMP REFERENCE No. 2 OF 2020
5. A composite scheme of arrangement of transfer of
'Windmill Division of Troikaa Pharmaceuticals Limited
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
(TPL) with Troikka Exports Private Limited (TEPL) and
amalgamation of residual TPL with TEPL came to be
presented before this Court by TPL for sanction of the
scheme by filing Company Petition No.17 of 2016 in
Company Application No.334 of 2018 with Company
Petition No.18 of 2016 in Company Application No.333 of
2016.
6. The Company Court sanctioned the said scheme fully
vide common order dated 9.3.2016.
7. Pursuant to the sanction of the scheme, TEPL was
converted into a public limited company and was
renamed as Troikka Exports Private Limited.
Subsequently on 15.6.2016, TEP was renamed as Troikaa
Pharmaceuticals Limited which was duly certified by the
Registrar of Companies.
8. Pursuant to the sanction of the scheme by the
Company Court on 9.3.2016, TPL filed an application
dated 13.5.2016 before the Collector & Additional
Superintendent of Stamps seeking opinion and
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
adjudication as to proper stamp duty leviable on the order
dated 9.3.2016 - order of sanction of the scheme by the
Company Court.
9. The Collector, by communication dated 8.7.2016,
intimated the applicant that stamp duty payable on the
said instrument was Rs.4,87,50,049/- and by said letter
called upon the applicant - TPL to pay the stamp duty.
The applicant forwarded a communication dated
30.7.2016 to the Collector raising objections to the same.
It is thereafter Collector passed an order on 19.8.2016
and opined the stamp duty as intimated already by letter
dated 8.7.2016 was payable on the said instrument.
10. Being aggrieved by and not satisfied with the order
passed by the Collector & Additional Superintendent of
Stamps, the applicant - TPL challenged the said order
before the Chief Controlling Revenue Authority. The said
authority after giving opportunity to the applicant passed
an order on 19.11.2019 confirming the order passed by
the Collector and as such, reference has been sought by
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
the applicant and accordingly two (2) questions have
been referred to this Court for opinion.
RE: STAMP REFERENCE No. 3 OF 2020
11. A composite scheme in the nature of transfer of
windmill undertaking of Gopal Glass Works Limited
(GGWL) into Gopal Mirror Coating Private Limited
(GMCP) by way of slump sale and amalgamation of
residue undertaking of GGWL - transferor into GMCP -
transferee under Sections 230 to 232 of the Companies
Act, 2013 came to be allowed / sanctioned by the National
Company Law Tribunal vide order dated 11.8.2017.
Pursuant to the said order dated 11.8.2017 passed by the
NCLT, GGWL filed an application dated 8.9.2017 before
the Collector & Additional Superintendent of Stamps
under provisions of Section 31(1) of the Gujarat Stamps
Act, 1958 seeking opinion and adjudication as to proper
stamp duty leviable on the order of sanctioning the
scheme passed by National Company Law Tribunal on
11.8.2017. The Collector adjudicated the same and
proposed the stamp duty of Rs.1,60,83,177/- and in
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
response to the same, the applicant - GGWL by its letter
dated 21.5.2018 objected to the same and thereafter the
Collector and Additional Superintendent of Stamps by
order dated 26.7.2018 confirmed its earlier opinion and
called upon the applicant - GGWL to pay the stamp duty
of Rs.1,60,83,177/-.
12. Being aggrieved by and dissatisfied with the said
order of the Collector, the applicant challenged the same
before the Chief Controlling Revenue Authority under
Section 53(1) of the Stamp Act who after extending an
opportunity of hearing the appellant passed an order on
26.8.2019 confirming the order passed by the Collector
and in the light of the application having been filed by the
applicant - GGWL for reference. Hence, three (3)
questions have been referred by the Chief Controlling
Revenue Authority for our opinion.
RE: STAMP REFERENCE No. 4 OF 2020
13. A composite scheme of arrangement amongst Adani
Gas Holding Limited (AGHL), Adani Gas Limited (AGL)
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
and Adani Enterprises Limited (AEL) was sanctioned by
the National Company Law Tribunal by common order
dated 3.8.2018. Under the said scheme, it was proposed
that AGHL would be amalgamated with AGL and
demerged undertaking of AEL gas sourcing and
distribution business (demerged undertaking) would be
transferred to AGL.
14. Pursuant to the said order dated 3.8.2018 passed by
the NCLT, the applicant - AEL filed an application before
the Collector under provisions of Section 31(1) of the
Stamp Act seeking opinion as to proper stamp duty
payable on the scheme approved by NCLT on 3.8.2018.
The said authority by communications dated 20.10.2018
and 29.6.2019 held that stamp duty payable would be
Rs.27,33,65,000/- and after giving opportunity of personal
hearing by order dated 19.9.2019 opined that stamp duty
of Rs.27,33,65,000/- as already opined would be payable.
15. Being aggrieved by and dissatisfied with the order of
the Collector, the applicant challenged the said order
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
before the Chief Controlling Revenue Authority who, by
order dated 30.12.2019, upheld the order of the Collector
dated 19.9.2018 and as such reference has been sought
by raising two (2) questions and seeking our opinion.
RE: STAMP REFERENCE No. 5 OF 2020
16. The Company Court, by common order dated
7.5.2015, sanctioned a composite scheme of arrangement
between Adani Enterprises Limited (AEL), Adani Port and
Special Economic Zones Limited (APSEZ), Adani Power
Limited (APL), Adani Transmission Limited (ATL) and
Adani Mining Private Limited (AMPL) whereunder it was
proposed that (a) the port undertaking of the applicant -
AEL would be transferred to APSEZ; (b) the power
undertaking of the applicant - AEL would be transferred
to APL; (c) the transmission undertaking of the applicant
- AEL would be transferred to ATL; (d) APML would be
amalgamated with the applicant - AEL.
17. Pursuant to the sanction of the scheme by the
Company Court, applicant filed an application dated
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
11.6.2015 before the Collector under Section 31(1) of the
Stamp Act for opinion as regards the proper stamp duty
payable on the scheme approved by the Company Court
on 7.5.2015 and sought adjudication as to the proper
stamp duty payable on the instrument viz. the order dated
7.5.2015 and is said to have produced the particulars
sought for by the Collector. The Collector, by
communication dated 9.9.2016, called upon the applicant
- AEL to pay stamp duty of Rs.75 crore which was
objected to by the applicant - AEL and overruling the
same, Collector confirmed the earlier opinion expressed
and also levied penalty of Rs.3 lakh by order dated
25.7.2018.
18. Being aggrieved by and dissatisfied with the
aforesaid order dated 25.7.2018, an application came to
be filed by the applicant - AEL before the Chief
Controlling Revenue Authority and also deposited a sum
of Rs.18,75,00,000/- along with the application dated
20.10.2018 as required under Section 53 of the Stamp
Act. After extending opportunity of hearing to the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
applicant - AEL, the Chief Controlling Revenue Authority
by order dated 30.12.2019 rejected the application of the
applicant - AEL and upheld the order dated 25.7.2018
passed by the Collector. Hence, reference has been made
seeking opinion of this Court on one (1) substantial
question of law.
RE: STAMP REFERENCE No. 7 OF 2020
19. National Company Law Tribunal, Principal Bench,
New Delhi, by order dated 24.11.2017, sanctioned the
composite scheme of arrangement between Inter Globe
Enterprises Limited (GEL), Inter Globe Real Estate
Ventures Private Limited (IGREVP), Inter Globe Business
Solution Private Limited (GBSP) and Acquire Services
Private Limited (ASP) and upon sanction of the said
scheme, an application dated 20.12.2017 was filed before
the Collector (Stamp), Jaipur, Rajasthan by IGREVP as
also said 4 companies, 3 situated in Jaipur, Rajasthan who
opined that stamp duty of Rs.30 crore was required to be
paid and accordingly stamp duty has been paid by the
applicant which is certified by the Collector (Stamp),
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Jaipur by issuance of certificate dated 5.2.2018 under
Section 36 of the Rajasthan Stamps Act, 1998.
20. The applicant filed an application dated 1.5.2018
before the Collector & Additional Superintendent of
Stamps at Gandhinagar, Gujarat seeking adjudication as
to the proper stamp duty payable on the composite
scheme of arrangement sanctioned by NCLT, Principal
Bench, New Delhi and said authority viz. Collector by
communication dated 9.10.2018 opined a sum of
Rs.5,18,38,002/- is to be paid. This was objected to by the
applicant IGREVP by its communication dated 25.10.2018
and Collector after considering said reply /objection
raised by IGREVP and after hearing the applicant by
order dated 18.10.2019 confirmed his opinion and called
upon the applicant to pay stamp duty of Rs.5,18,38,002/-
pursuant to order dated 18.10.2019.
21. Being aggrieved by and dissatisfied with the
aforesaid order of the Collector, the applicant - GIREVP
preferred an application dated 15.1.2020 under Section
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
53(1) of the Gujarat Stamps Act before the Chief
Controlling Revenue Authority who, by order dated
5.8.2020, rejected the application and upheld the order
dated 18.10.2019 passed by the Collector. Hence, this
reference by raising eight (8) questions.
22. We have heard the arguments of Mr. Ashish Kumar
Singh, learned advocate appearing for Mr. Bhavesh
Choksi for the applicant in Stamp Reference No.1 of
2020, Mr. Mihir Joshi, learned Senior Advocate with Mr.
Sandip Singhi for Singhi & Company for the applicants in
Stamp Reference No.2, 4, 5 and 7 of 2020, Mr. Tushar
Hemani, learned Senior Advocate with Mr. Jaimin Dave
for the applicant in Stamp Reference No.4 of 2020 and
Ms. Manisha Lavkumar Shah, learned Government
Pleader with Mr. Chintan Dave, Mr. D.M. Devnani and
Ms. Nidhi Vyas, learned Assistant Government Pleaders
for the respondent.
23. Learned advocate Mr. Ashish Kumar Singh assisted
by Mr. Bhavesh Chokshi appearing for the applicant has
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
vehemently contended that since the questions of law
before the reference are though several in numbers, but
two questions being interwoven are required to be
answered namely question no. (I) & (II). It has been
contended that in relation to the scheme which is
received and sanctioned by the High Court of Gujarat on
18.03.2014, the Appointed Date which was determined
was 01.04.2013 and as such, the question of applying the
amendment to Article 20(d) of Schedule - I of the Act is
impermissible as it has come after the Appointed Date.
Since the said notification was dated 15.05.2013, may not
be applied to facts of the present case. According to Mr.
Singh the amount of shares issued by the applicant -
company is worth Rs.1,03,73,41,82,220/- and stamp duty
payable is Rs.1% comes to Rs.103,73,41,822/- or
maximum of Rs.10 crores as mentioned under Article
20(d) of Schedule - I of the Act as on the Appointed Date
i.e. 01.04.2013 and as such, the maximum amount which
is payable at the best is Rs.10 crore which has already
been paid by the applicant - company and acknowledged
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
by the authority without any demur and as such, under
the guise of revised notice, no further recovery is
permissible. It has also been contended that it is clear
from the notice of Collector dated 07.11.2016 that
adjudication application of the applicant - company is
processed and by virtue of provisions of Article 20(d) of
the Schedule-I of the Act, order dated 18.03.2014 is
adjudicated and as such, demand draft has been accepted
by the Collector dated 13.09.2016. Hence, a show cause
notice dated 07.11.2016 is issued against the applicant -
company as to why penalty may not be leviable for delay
in making the payment of stamp duty under Section 17
read with Section 33 of the Act should not be thrust upon
the applicant as there is no question of delay on the part
of the applicant as demand drat has already been sent on
13.09.2016. It has been submitted that about final
approval of FIPB was not within the hands of the
company and therefore, no penalty can be leviable on the
applicant for the alleged delay as the said circumstance
was beyond the control of the applicant and once revenue
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
having accepted the demand draft, without any objection,
question of issuance of revised notice or demand does not
arise and same would be without authority of law. By
referring to certain documents it has been contended that
though it was pointed out clearly before the authority, the
authority has not properly applied its mind and thereby,
has passed the order which is quite in conflict with the
law. Hence, the learned Collector in the background of
aforesaid facts has no jurisdictional authority to impound
any instrument by invoking Section 33 of the Act. By
giving emphasis on the Appointed Date i.e. 01.04.2013
and by referring to amended notification dated
15.05.2013 and Article 20(d) of Schedule - I of the Act, he
has asserted that since the High Court has sanctioned the
scheme may be in March, 2014, but by virtue of said
sanction the Appointed Date is determined i.e.
01.04.2013, the rate prevailing as on that date is the
determinative factor and as such liability has been
discharged by paying said amount by way of demand
draft and as such, the stand of the authority is
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
impermissible and it is requested to answer the reference
in the aforesaid context.
24. For the purpose of substantiating his contentions,
learned advocate Mr. Singh has referred to the following
decisions:
"* In the case of State of Gujarat v. Bio Deal
Laboratories Private Limited (R/Letters Patent
Appeal No, 452 of 2017 in R/Special Civil
Application No. 345 of 2011).
* In the case of Alembic Pharmaceuticals Limited
v. Chief Controlling Revenue Authority (Stamp
Reference No. 1 of 2012) reported in (2014) 3 GLR
2255.
* In the case of Aakash Laviesh Leisure Private
Limited v. The State of Maharashtra & Ors.,
reported in 2010 (6) BomCR. 179.
* In the case of Solaris Chemtech Industries
Limited v. State of Gujarat (Special Civil
Application No. 53 of 2016.)"
25. As against this, Ms. Manisha Lavkumar Shah learned
Government Pleader appearing on behalf of the stamp
authority has vehemently opposed the stand of the
applicant - company and has submitted that amendment
has already been inserted by virtue of notification dated
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
15.05.2013 and the Hon'ble High Court has sanctioned
the scheme on 18.03.2014 and as such, demand raised by
the authority is justified. It has been asserted clearly that
levy of stamp duty should be on the date of execution of
the instrument and not on the Appointed Date mentioned
in the scheme sanctioned and as such, the date of
execution can be said to be the order of High Court dated
18.03.2014 which is after the date of amendment and as
such, the date of execution is significant and not the
Appointed Date mentioned therein for the purpose of
chargeability. By referring to certain provisions of the
Stamp Act, it has been submitted that demand which has
been raised by the authority is on the basis of the correct
interpretation of the provisions applicable and as such,
the total amount which is payable is Rs.25 crores by
virtue of amendment and not the amount which has been
sent through demand draft. Learned Government Pleader
has after referring to certain provisions precisely
Sections 31 and 32 of the Act has resisted the stand of
the petitioner. For the purpose of this Reference, the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Government has tendered written submission and by
referring to it, the learned Government Pleader has
requested the Court to deal with the Reference
accordingly.
26. Mr. Mihir Joshi, learned Senior Advocate appearing
on behalf of the applicants has contended that 'market
value of share' as defined under Explanation III to Sub-
Article (d) of Article 20 on the basis of which the stamp
duty chargeable on instrument covered under Article
20(d) would be in three contingencies viz. (a) where the
shares of transferee are listed; (b) where the shares of
transferee company are not listed, but the shares of the
transferor company are listed; (c) where the shares of
neither transferee company nor the transferor company
are listed. Elaborating his submissions, he would contend
that shares of both the transferor and the applicant
company of Stamp Reference No.2 of 2020 are not listed
on any stock exchange and as such the market value of
the shares issued by the applicant is deemed to be its
face value, irrespective of whether such shares being
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
issued at a premium or not and on the ground that shares
are issued at a premium, the authorities below have
included the said premium for determining the market
value of share.
27. He would further contend that fiscal statutes are
construed strictly and the contention now put forth that
premium is a 'consideration' other than share is clearly
an afterthought and untenable as it is evident from the
expression 'amount of consideration' referred to in Article
20(d)(1) is separate and distinct from the 'market value of
share' and as such it cannot be treated as amount of
consideration. He would also submit that stand of the
Revenue that share premium is covered within the phrase
'amount of consideration' is an afterthought.
28. He would also elaborate his submission by
contending that premium cannot be something distinct
from the shares and it cannot exist independently apart
from shares as premium is part of the entire value of the
share. Hence, on this ground, he has sought for Stamp
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Reference Nos.1/2020 and 2/2020 being answered in
favour of the applicant.
29. Mr. Tushar Hemani, learned Senior Advocate
appearing for Mr. Jaimin Dave for the applicant has
vehemently contended that there appears to be a
complete misconception of the provisions of law in
respect of determination of market value of shares. It has
been submitted that authority has failed to appreciate
that in view of Clause (C) of Explanation-III to Article
20(d) of Schedule-I of Gujarat Stamp Act, which provides
that "market value of shares" in case where shares of
both transferor and transferee company are not listed on
stock exchange, "means face value of shares". It is
submitted that nowhere it is prescribed that in case
where shares are issued at premium, such premium
amount shall be included in the face value. Here in the
instant case, though respondents have come to a
categorical finding that shares of transferor as well as
transferee company are not listed on any stock exchange,
hence face value of shares will be considered as market
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
value of shares for the purpose of computation of stamp
duty and here, face value of shares issued by transferee
company is Rs.10/-. Hence, premium of Rs.227.68 per
share cannot be considered as part of market value
inasmuch as explanation attached to the provision is
abundantly clear.
30. It has been submitted that legislature through this
provision has ensured that it provides for a mechanism to
evaluate shares which are not listed on stock exchange
and therefore, in a situation like this, computation of
stamp duty should be on the basis of face value of shares
since same are not listed on stock exchange. When this
provision is apparently clear, it is not open for the
authority to misconstrue the provision and arrive at a
different conclusion which may frustrate the very object
of the provision.
31. It has been submitted that law of interpretation on
fiscal Statute is expressly clearly by several decisions and
proposition on it that irrespective of its consequences to
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
be given to sub-serve the object of the provision. It has
been submitted that unlike Maharashtra Stamp Act,
Collector does not have power to determine market value
of shares and since provision is absolutely clear, unlike
Maharashtra Stamp Act, authority has no option but to
give effect to the provisions contained under Gujarat
Stamp Act. Hence, when both transferor and transferee
companies are not listed, computation should be on the
basis of face value of shares of the company. For this
purpose, learned senior counsel has made certain
reference to the meaning of word 'Premium' and has also
made a reference to certain decisions delivered by
Hon'ble Apex Court and by way of a compilation,
following are the decisions referred to and relied upon:
(i) Board of Revenue v. Rai Saheb Siddnath
Mehrotra reported in (1965)2 SCR 269 :
AIR 1965 SC 1092;
(ii) District Registrar and Collector v. Canara
Bank reported in (2005)1 SCC 496;
(iii) CIT v. Calcutta Knitwears reported in
(2014) 6 SCC 444
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
And as such, he has prayed that error which has
crept in may be corrected by answering the reference
accordingly.
32. Mr. Sandip Singhi, learned advocate appearing for
the applicant has contended that scheme of arrangement
is a composite scheme and as such the Collector erred in
holding it comprises of separate / distinct transaction and
same is covered under Section 5 of the Stamp Act by
referring to the scheme approved by National Company
Law Tribunal by order dated 3.8.2018 that respective
companies had taken the approval of their respective
shareholders and creditors in respect of the whole
scheme and not in respect of the standalone transfer of
the demerged undertaking of the applicant to the
transferee company (AGL) and amalgamation of AGHL
with AGL and as such subject transaction or scheme
approved by NCLT on 03.08.2018 cannot be covered
under Section 5 of the Stamp Act.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
33. He would draw the attention of the Court under
Section 2(g)(iv) of the Stamp Act which stipulates that
every order made by the High Court under Section 394 of
the Companies Act would be considered as 'instrument'
and as such Sections 230 to 232 of the Companies Act,
2013 would be a conveyance and is not separate and
distinct and hence, question of payment of separate duty
as sought to be collected by the Collector would not arise.
34. He would also contend that assuming while denying,
the instrument is covered under Section 5 of the Stamp
Act, even then the duty as calculated by the Collector is
incorrect since demerged undertaking of the applicant
pursuant to the sanction of the aforementioned scheme
stood transferred to AGL. The shares of the applicant
were listed on the stock exchange as on appointed date
but, however, the shares of AGL were not listed on the
stock exchange as on appointed date and as such, the
market value of the shares of the applicant are irrelevant.
He would submit that Explanation III(b) to Article 20(d) of
Schedule I to the Stamp Act would be applicable only in
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
cases of amalgamation and not in respect of
reconstruction of companies. Even on bare reading of
Article 20(d), it would be evident that market value of the
shares are to be calculated in respect of shares which are
issued or allotted and in such circumstances, market
value of the shares of AGL are required to be calculated
and not that of the applicant as the shares are issued and
allotted by AGL and not by the applicant. Hence, he
would contend that no stamp duty can be levied in the
cases stated above and therefore the calculation of stamp
duty of Rs.25 crore on the transfer of demerged
undertaking of the applicant to AGL is incorrect and
against the provisions of law.
35. Mr. Mihir Joshi, learned Senior Advocate appearing
for the applicant on the question of law would reiterate
the contentions raised in Stamp Reference Nos.4/2020,
5/2020 and 6/2020 and prays for the reference being
answered in favour of the applicant.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
36. Per contra, Ms. Manisha Lavkumar Shah learned
Government Pleader appearing on behalf of the stamp
authority has vehemently opposed the stand of the
applicant - company and has submitted that amendment
has already been inserted by virtue of notification dated
15.05.2013 and the Hon'ble High Court has sanctioned
the scheme on 18.03.2014 and as such, demand raised by
the authority is justified. It has been asserted clearly that
levy of stamp duty should be on the date of execution of
the instrument and not on the Appointed Date mentioned
therein and as such, the date of execution can be said to
be the order of High Court namely 18.03.2014 which is
after the date of amendment and as such, the date of
execution is significant and not the Appointed Date
mentioned in the scheme for the purposes of
chargeability. By referring to certain provisions of the
Stamp Act, it has been submitted that demand which has
been raised by the authority is on the basis of the correct
interpretation of the provisions applicable and as such,
the total amount which is payable is Rs.25 crores by
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
virtue of amendment and not the amount which has been
sent through demand draft. Learned Government Pleader
has after referring to certain provisions precisely
Sections 31 and 32 of the Act and has resisted the stand
of the petitioner. For the purpose of this Reference, the
Government has tendered written submission and by
referring to it, the learned Government Pleader has
requested the Court to deal with the Reference
accordingly.
37. On each question which has been placed for
consideration, written submissions have been tendered
and as such, instead of repeating narration, the Court
deems it proper to reproduce the same hereunder:-
"RE: RESPONSE OF STAMP AUTHORITY IN
STAMP REFERENCE NO. 1/2020
5.1. Whether in the facts and circumstances
of the present case, the Learned Collector in
proceeding initiated under Section 31 of the
Act had any jurisdiction or authority to
impound any instrument by invoking the
provision of Section 33 of the Act?
(Referred in Stamp Reference No.1/2020 as
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Question No. I)
5.2. Whether in the facts and circumstances
of the present case, provisions of Section 17
of the Act have any applicability qua the
instrument under consideration?
(Referred in Stamp Reference No. 1/2020 as
Question No .IV)
5.3. Whether in the facts and circumstances
of the present case, can any delay be ascribed
to the applicant company in submitting the
requisite detail/document in relation to the
issuance of shares?
(Referred in Stump Reference No.1/2020 as
Question No. VI)
5.4. Whether in the facts and circumstances
of the present case, the provision of Section
39 (1)(b) of the Act can be made applicable,
more so when the mandatory requirement for
the invocation of the provision of Section
39(1)(b) of the Act have not been fulfilled?
(Referred in Stump Reference No.1/2020 as
Question No..V)
5.5. Whether in the facts and circumstances
of the present case, any penalty can be levied
on the Applicant Company?
(Referred in Stamp Reference No. 1/2020 as
Question No.VII)
RESPONSE TO QUESTION NO. 5.1 TO 5.5
1. When any instrument whether executed or
not and whether previously stamped or not is
brought to the Collector, then the Collector
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
shall determine the duty chargeable on the
instrument under Section 31 of the Act. The
Collector on examination of such instrument
if is satisfied about the duty not having been
fully paid as determined, in such event the
collector exercises power under Section 32 of
the Act by issuing certificate. At this stage it
shall be noteworthy to quote proviso to
Section 32 which reads as under
"Provided that nothing in this section shall
authorize the Collector to endorse
(a) any instrument executed or first executed
in the State and brought to him after the
expiration of one month from the date of its
execution or first execution, as the case may
be
(b) any instrument executed or first executed
out of the State and brought to him after the
expiration of three months after it has been
first received in this State, or
(c) any instrument chargeable with the duty
of twenty naye paise or less when brought to
him, after the drawing or execution thereof
on paper not duly stamped."
Thus, if an instrument which is executed, is
brought to the Collector after the expiration
of one month, the Collector has no authority
to make any endorsement thereon. However,
Section 33 permits examination and
impounding of instruments and the Collector
is empowered under this Section to impound
the instrument so as to ascertain whether the
document is Stamped with appropriate value
as per the description required by the law and
therefore, when the Collector is not
authorized to issue certificate under Section
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
32 of the Act, then the Collector in such
circumstances would make recourse to
Section 33. Under Section 39(1)(b) the
Collector would thereafter proceed to
exercise power to stamp instruments
impounded. Once the instrument is
impounded Once the instrument is
impounded under 5.33 by a public officer
(except police officer) then, the Collector
shall follow the procedure under 5.39(1)(a)
certifying the endorsement thereon that it is
duly stamped or alternatively, follow
procedure under 39(1) (b) to require payment
of proper duty together with penalty
2.On payment of proper duty or de amount
required to make up the same together with
penalty being made on the instrument, the
Collector is required to certify by
endorsement thereon with the proper duty or
the case may be proper duty and penalty
which has been levied and release the
document. For easy perusal of this Hon'ble
Court relevant Section 31, 32, 39 and 41 are
quoted herein below:
Section 31 - Adjudication as a proper stamps
(1) When any instrument, whether executed
or not and whether previously stumped or
not, is brought to the Collector, and the
person bringing it applies to have the opinion
of that officer as to the duty (if any) with
which it is chargeable and pays a fee of such
amount [not exceeding one hundred rupees
and not less than twenty-five rupees) as the
Collector may, in each case direct, the
Collector shall determine the duty (if any)
with which in his judgement, the instrument
is chargeable
(2) For this purpose the Collector may require
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
to be furnished with an abstract of the
instrument, and also with such affidavit or
other evidence as he may deem necessary to
prove all the facts and circumstances
affecting the chargeability of the instrument
with duty, or the amount of the duty with
which it is chargeable, are fully and truly set
forth therein, and may refuse to proceed upon
any such application until such abstract and
evidence have been furnished accordingly
Section 32- Certificate by Collector-(1) When
an instrument brought to the Collector under
section 31, is in his opinion, one of a
description chargeable with duty, and
(a) the Collector determines that it is already
fully stamped, or
(b) the duty determined by the Collector
under section 31, or such a sum as with the
duty already paid in respect of the
instrument, is equal to the duty so
determined, has been paid, the Collector shall
certify by endorsement on such instrument
that the full duty (stating the amount) with
which it in chargeable has been paid.
(2) When such instrument is, in his opinion,
not chargeable with duty, the Collector shall
certify in manner aforesaid that such
instrument is not so chargeable.
(3) Any instrument upon which an
endorsement has been made under this
Section, shall be deemed to be duty stamped
or not chargeable with duty, as the case may
be, and, if chargeable with duty shall be
receivable in evidence or otherwise, and may
be acted upon and registered as if it has been
originally duly stamped:
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Provided that nothing in this section shall
authorise the Collector to endorse
(a) any instrument executed or first executed
in the State and brought to him after the
expiration of one month from the date of its
execution or first execution as the case may
be;
(b) any instrument executed or first executed
out of the State and brought to him after the
expiration of three months after it has been
first received in s State: or
(c ) any instrument chargeable with the duty
of twenty naye paise or less when brought to
him, after the drawing or execution thereof,
on paper not duly stamped.
Section 39:- Collector's power to stamp
instruments impounded - (1) When the
Collector impounds any instrument under
section 33 or receives any instrument send to
him under sub-section (2) section 37, no
being an instrument chargeable with a duty of
twenty naye paise, or less he shall the
following procedure :-
(a) if he is of opinion that such instrument in
duly stamped or is not chargeable with duty,
he shall certify by endorsement thereon it is
duly stamped, or that it is not so chargeable
as the case way be;
(b) if he is of opinion that such instrument
is chargeable with duty and is not duly
stamped, he shall require the payment of the
proper duty or the amount required to make
up the same, together with a penalty of five
rupees; or, if he thinks fit, an amount not
exceeding ten times the amount of the proper
duty or of the deficient portion therefore,
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
whether such amount exceeds or falls short of
five rupees.
Provided that, when such instrument has
been impounded only because it has been
written contravention of section 13 or section
14, the Collector may, if he thinks fit, remit
the whole penalty made by this section
(2) Every certificate under clause (a) of sub-
section (1) shall for the purposes of this Act
be conclusive evidence of the matters stated
therein.
(3) Where an instrument has been sent to the
Collector under sub-section (2) of section 37
the Collector shall, when he has dealt with it
is a provided by this section, return it to the
impounding officer.
Section 41:- Endorsement of instruments on
which duty has been paid under section 34,
39 or 40.-(1) When the duty and penalty (if
any), leviable in respect of any instrument
[(not being an instrument referred to a sub-
section (1) of section 32A)] have been paid
under section 34 section 39 or section 40, the
person admitting such instrument in evidence
or the Collector, as the case may be, shall
certify by endorsement thereon that the
proper duty or, as the case may be, the
proper duty and penalty (stating the amount
of each) have been levied in respect thereof,
and the name and residence of the person
paying them.
(2) Every instrument so endorsed shall
thereupon be admissible in evidence, and may
be registered and acted upon and
authenticated as if it had been duly stomped,
and shall be delivered on his application in
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
this behalf to the person from whose
possession it came in to the hands of the
officer impounding it or as such person may
direct:
Provided that-
(a) no instrument which has been admitted
in evidence upon payment of duty and penalty
under section 34, shall be so delivered before
the expiration of one month from the date of
such impounding or if the Collector has
certified that its further detention is
necessary and has not cancelled such
certificate.
(b) nothing in this section shall affect the
provisions of Order XIII in Schedule I of the
Code of the Civil Procedure, 1908 (V of 1908)
Similarly, Section 17 which deals with
instrument executed in State wherein it,
mandates that instrument chargeable with
duty and executed by any person in the State
shall be stamped before or at the time of
execution or immediately on the next working
day. The said Section also provides for an
instrument to be stamped within 30 days in so
far as it relates to proviso to Section 17.
Section 17 is reproduced herein-below for the
Hon'ble Courts perusal:-
Section 17- Instruments executed in State -
All instruments chargeable with duty and
executed by any person in this State shall be
stamped before or [at the time of execution or
immediately thereafter on the next working
day following the day of execution]
Provided that the clearance list described in
Articles 18A, 188, 18C, 18D or 18E of
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Schedule I may be stamped by an officer
authorised by the State Government by rules
made under this Act, if such clearance list is
submitted for stamping by the cleaning house
of an Association in accordance with its rules
and bye-laws with the requisite amount of
stamp duty, within two months from the date
of its execution.
[Provided further that the instrument, so far
as it relates to an order of,
(i) the National Company Law Tribunal under
section 232 of the Companies Act, 2013 (18 of
2013) in respect of a scheme for
reconstruction of the company or companies
involving merger or the amalgamation of any
two or more companies;
(ii) the Reserve Bank of India under Section
44A of the Banking Regulation Act, 1949 (10
of 1949) in respect of amalgamation or
dissolution of Banking companies.
shall be stamped within thirty days from the
date of such order of the National Company
Law tribunal or, as the case may be, the order
of the Reserve Bank of India.]
If the said instrument duly stamped is
submitted under Section 31 of the Act, the
Collector may adjudicate with regard to
proper stamp and verify that the same is
within limitation as prescribed under Section
17. However, in case the instrument is not
duly stamped within the prescribed time in
such circumstances, the recourse would be
under Section 33 of the Act whereby the
instrument can be impounded.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
QUESTION:
5.6. Whether in the facts and circumstances
of the present case and in view of Explanation
II (a) to Article 20 of the Schedule to the Act,
stamp duty applicable as on the "appointed
date" will not be payable?
(Referred in Stamp Reference No. 1/2020 as
Question No. II)
RESPONSE TO QUESTION NO.5.6
In the facts of the present case, the appointed
date as provided in the instrument was
01.04.2013, however, the scheme was
sanctioned by Hon'ble High Court on
18.03.2014 and the document was for the
first time presented before the authority on
15.05.2014 The said document was therefore,
not submitted for adjudication within 30 days
as required under S. 17 read with S.32 and
therefore, there could not have been any
issuance of certificate under Section 32 of the
Act.
2. As far as the applicability of the Stamp
duty on appointed date is concerned, it would
be appropriate to refer to Section 2(d) which
defines "chargeable" and the said definition is
clear as the same provides that chargeable
means as applied to an instrument when such
instrument was executed. Similarly Section 3
of the Act which deals with instruments
chargeable with duty, the same also provides
for an instrument executed in the State
Section 2(d) and Section 3 quoted herein
below;
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
"Section 2(d):- (d) "chargeable mans, as
applied to an instrument executed or first
executed after the commencement of this Act,
chargeable under this Act, and as applied to
any other instruments, chargeable under the
law in force in the State when such
instrument was executed or where several
persons executed the instrument at different
times first executed":
"Section 3- instruments chargeable at duty-
Subject to the provisions of this Act and the
exemptions contained in Schedule 1, the
following instruments shall be chargeable
with duty of the amount indicated in Schedule
I, as the proper duty therefore respectively,
that is to say
(a) every instruments mentioned in Schedule I
which not having been previously executed by
any person, is executed in the State on or
after the date of commencement of this Act;
[(aa) every instrument mentioned in Schedule
1, which, not having been previously executed
by or on behalf of or in favour of the
Government or any local authority, is
executed by or on behalf or in favour of the
Government or any local authority]
(b) every instrument mentioned in Schedule
1, which, not having been previously executed
by any person is executed out of the State on
or after the said date, relates to any property
situate, or to any matter or thing done or to
be done in this State and is received in this
State:
Provided that no duty shall be chargeable in
respect of-
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
(1) any instrument executed by or on behalf
of or in favour of the Government in cases
where, but for this exemption, the
Government would be liable to pay the duty
chargeable in respect of such instrument:
(2) any instrument for the sale, transfer or
other disposition, either absolutely or by way
of mortgage or otherwise of any ship or
vessel, or any part, interest, share or property
of or in ship or vessel registered under the
Bombay Coasting Vessels Act, 1838 (XIX of
1938), or the Indian Registration of Ships Act,
1841 (X of 1941),
Thus, the stamp duty payable would
therefore be on the date when the execution
of the instrument takes place. Normally, the
scheme of amalgamation and/or arrangement
between the companies is finalized and
thereafter the same is placed before the
competent Courts/Tribunals for approval.
However, a question would arise with regard
to the amount that shall be chargeable on the
execution of the instrument. As already
provided herein-above, the word "chargeable"
means as applied to an instrument executed
and therefore, the instrument shall be applied
to valuation of stamp authority only when the
same in executed by payment of appropriate
stamp duty Therefore, the word "appointed
date" has to correlate with the chargeability
of the stamp duty which is again dependent
on its execution. Therefore, the appointed
date has to be construed as the date of
execution of stamp duty once the scheme of
amalgamation/ arrangement is approved by
the competent authority/tribunal In other
words, the value of share has to be taken into
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
consideration as on appointed date and the
rate of stamp duty can only be decided by the
authorities as and when the instrument is
executed
QUESTION:
5.7. Whether in the facts and circumstances
of the present case, a revised notice can be
issued to expand the scope of an earlier show
cause notice and introduce a completely new
case altogether?
(Referred m Stamp Reference No.1/2020 as
Question No.III)
RESPONSE TO QUESTION NO. 5.7
In so far as the facts of the present case is
concerned, initially an notice dated
07.11.2016 came to be issued calling upon
and intimating that the payable stamp duty
under Section 20(d) would be 10 Crores
however, on noticing the mistake that the
stamp duty as provided under Section 20(d)
which was in fact payable on the instrument
was 25 Crores and therefore, a revised notice
came to be issued on 22.04.2017. There being
no adjudication or prejudice to the petitioner
it cannot be said that the revised notice
cannot be issued. Once the authority is of the
opinion that there is a mistake, in the notice
more particularly when the proceeding have
not attained finality, as no orders having been
passed on the basis of such notice with
mistake that the authority found to be with
apparent mistake. Thus there is no bar in
issuing a revised notice with correct
chargeable stamp duty."
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
In view of the aforesaid written submission, learned
Government Pleader has requested this Court to dispose
of the reference accordingly. For the purpose of
strengthening the submission, learned Government
Pleader has referred to definition, their interpretations
and several decisions in support of her arguments which
are noted here-under :-
"1. Relevant extracts of definition in "The Law
Lexicon with Legal Maxims" by P. Ramanatha
Aiyar (Reprint Edition 1992).
PREMIUM. A consideration; something given
to invite a loan or bargain; as the annual
payment upon Insurances; a fee paid for the
privilege of being used in a taught a trade or
profession; the consideration paid to the
assignor by the assignee of a lease or to the
transferor by the transferee of shares or stock,
etc. A prescribed periodical (usually annual)
payment on a policy of insurance; the advance
in price of stock or shares above par value.
"Premium", ordinarily means, increased value;
it is also used to describe a Bonus on a Life
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Policy. (See Barrow v. Methold, 3 W.R. Eng.
629.)
Premium (in stock exchange.) In stock broking
premium is the value above the original cost or
price, as of shares or stock, as opposed to
discount, which is the value below the original
cost.
AT A PREMIUM. Above par; at more than the
face value or nominal value."
* In the case of Rajesh Vaishnav & Ors., v.
State of Chhatisgarh & Ors., reported in
2010 SCC Online Chh. 282).
* In the matter of reduction of share capital;
Green House Promoters Private Limited
reported in 2018 SCC Online NCLT 27720)
National Law Tribunal.
* In the case of Venkatesh v.
Commissioner of Income Tax reported in
(2000) 109 Taxman 78 (Madras) High Court
of Madras.
* The Rajasthan Stamp Act,1998.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
* Full Bench : Hon'ble High Court of Gujarat.
In the case of Chief Controlling Authority v.
Nutal Mills Limited, Ahmedabad reported in
1977 GLR 409.
* Full Bench : Hon'ble High Court of Gujarat.
In the case of President Kankaria Apartment
Co-operative Housing Society Limited v.
Chief Controlling Revenue Authority
reported in 1984 (2) GLR 1188.
* Full Bench : Hon'ble High Court of Gujarat.
In the case of Alembic Pharmaceuticals
Limited v. Chief Controlling Revenue
Authority in Stamp Reference No. 1 of 2012
dated 26.11.2013. (citation : 2014 (3) GLR
2255).
* Hon'ble Supreme Court. In the case of
Alembic Pharmaceuticals Limited v. Chief
Controlling Revenue Authority in Civil
Appeal No. 4909 of 2018 (Arising out of Special
Leave Petition (C ) No. 6174 of 2014) dated
05.04.2017).
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
(Arising out of judgment and order dated
26.11.2013 in stamp Reference No. 1 of 2012
passed by the Hon'ble High Court of Gujarat).
* In the case of H.H. Shri Vishwesha
Thirtha Swaminar and others v. State of
Mysore and Anr., reported in (1972) 3 SCC
246.
* In the case of Commissioner of
Commercial Taxes v. Bajaj Auto Limited
reported in 2016 (16) SCC 83.
* In the case of Pirbhai Janubhai Shaikh v.
B.R. Manepatil, Collector of Ahmedabad
reported in 1965 GLR 554.
* In the case of Commissioner of Central
Excise, Ahmedabad v. Solid and Correct
Engineering Works and Ors., reported in
(2010) 5 SCC 122.
* In the case of Commissioner of Sales Tax
v. M/s. Bombay Sound Service reported in
1998 SCC Online Bom.43.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
* In the case of Hamendra Lal Roy and
Ors., v. Indo-Swiss Trading Co. Ltd., & Ors.,
reported in 1995 SCC Online Pat.19.
* In the case of Nagpur Electric Light and
Power Company Limited v. Regional
Director, Employees State Insurance
Corporation reported in AIR 1967 SC 1364.
38. She would also oppose the stand of the applicant in
Stamp Reference No.3/2020 by contending that there is
no error committed by the authority. On the contrary,
learned Government Pleader Ms. Manisha Lavkumar
Shah appearing on behalf of the authority has vehemently
opposed the stand of the applicant and has submitted that
there is no error committed by the authority. On the
contrary, she would contend a meaningful interpretation
is to be assigned to the relevant provisions and the
amount has been determined. Article 20(d) prescribes
Rs.25 crore of maximum for share amounts either market
value and consideration amount or marked value of
immovable property transferred whichever is more shall
be considered and thereby 1% of it shall be stamp duty. It
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
has been submitted that transferor company has issued
shares with premium of Rs.227.68 and it is included in
para 14.1 with specific mention as 'consideration' and as
such, premium, as stated above, is to be treated as part of
consideration. Hence, under the provisions of Article
20(d) of the Stamp Act, amount paid for such
amalgamation includes a share premium amount and as
such, it is to be treated as part of consideration.
39. It has been submitted that for slump sale of Gopal
Glass Works Limited and Jamnagar Dharampur Windmill
Ltd., market value of immovable property of transferor
company is more than the consideration paid by
transferee company and as such, market value of
Rs.11,09,33,734 being transferred has been considered
and as such, amount of stamp duty payable shall be
Rs.11,09,337/-. Further, it has been submitted that for the
transferor company, at serial No.(2), Gopal Glass Works
Ltd., market value of immovable property of transferor
company is more than the market value of shares and
therefore, amount of stamp duty payable being 1% comes
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
to Rs.1,49,73,840/- (1% of Rs.1,49,73,84,000/-). As a
result of same, authority has rightly treated it as part of
consideration.
40. Learned Government Pleader has further submitted
that there is no misconception nor misreading of
provisions of the Stamp Act. Hence, applicant is liable to
pay stamp duty as determined by the authority. The
judgments which have been relied upon are not of any
assistance to the applicant.
41. It has been emphatically submitted that term
'consideration' for transfer refers clearly and naturally to
that, which passed on the transferor company 'for'
transferred property. To give true meaning to the word
'consideration', a reference is made to Law Lexicon and
after referring to same, it has been contended that
consideration for sale in the hands of the shareholders is
the premium of shares. Once shareholder received
consideration, it would be deemed as if owner has
received consideration and in the hands of each
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
shareholder, this consideration is determined as
'premium' or 'share' and as such, by referring to few
decisions, a contention is canvassed that premium
amount has rightly been considered as part of
consideration to be paid over the face value of shares. A
reference is made to few decisions, i.e. (1) in the case of
Li Taka Pharmaceuticals Ltd. and Another Vs. The State
of Maharashtra and others reported reported in 1995
SCC OnLine Bom 67 and in the case of Hindustan Lever
and Another Vs. State of Maharashtra and Another
reported in (2004) 9 SCC 438.
42. So far as reference which has been made by the
applicant about the order passed by learned Single Judge
in Special Civil Application No.14597 of 2019 dated
20.12.2019 cannot have any assistance in view of fact
that said judgment is stayed by order dated 10.2.2020 in
Letters Patent Appeal No.125 of 2020 by Division Bench
of this Court and as such, independent thereof,
appropriate answer be assigned to the questions which
are referred to.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
43. Shri Sandeep Singhi, learned counsel appearing for
the applicant in S.R.No.7 of 2020 would contend that the
first substantial question of law is similar to the one
involved in S.R.Nos.5 and 6 of 2020 and substantial
question of law Nos.3, 4 and 5 have also been addressed
by the learned advocates appearing for the respective
applicants in S.R.No.2 of 2020 and S.R.No.1 of 2021 and
question No.6 relates to the question of law raised in
S.R.Nos.5 and 6 of 2020 and as such, he prays for
answering the same in favour of the applicants and
against the revenue. In support of his submissions, he has
relied upon the following judgments :
1. [1904] 2 Ch 268 - In re South African
Supply and Cold Storage Company Wild v/
s Same Company.
2. 1990 (Supp) SCC 675 - Saraswati
Industrial Syndicate Ltd. v/s
Commissioner of Income Tax.
3. (2004) 121 Comp Cas 523 - In re
Larsen and Toubro Limited
4. AIR 1956 SC 35 - The Member, Board
of Revenue v/s Arthur Paul Benthall
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
5. Halsbury's Laws of England (Vol.
44(1)), 4th Edition reissue: Para 1015
6. 127 ER 467 - Bowen v/s Ashley
7. 128 ER 999 - Goodson v/s Forbes
8. 108 ER 1152 - Allen v/s Morrison
9. 108 ER 1036 - The King v/s Louth
10. (2015) 10 SCC 700 - Chief Controlling
Revenue Authority v/s Coastal Gujarat
Power Limited and others
11. (1995) 6 SCC 108 - Board of
Revenue, U.P. v/s Electronic Industries of
India
12. AIR 1966 SC 1342 - The
Commissioner of Income-Tax, Patiala
v/s. M/s. Shahzada Nand and Sons and
others
13. (2000) 6 SCC 550 - Federation of A.P.
Chambers of Commerce & Industry and
others v/s State of A.P. and others
14. (2005) 1 SCC 496 - District Registrar
and Collector, Hyderabad and another v/s
Canara Bank and others
15. AIR 1961 MADRAS 504 (FB) - Board
of Revenue, Madras Chief vs. N.
Narsimhan and another
16. AIR 1933 ALLAHABAD 321 (FB) -
Ram Swarup vs. Joti and another
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
44. Hence, he has prayed for the reference being
answered in favour of the applicants.
44A. Having heard the learned advocates appearing for
the parties, we proceed to answer the questions referred
to this Court as under.
PREAMBLE
45. In S.R.Nos.4, 5 and 6 of 2020, the question of law
Nos.I and IV raised therein for being answered and
opined by this Court reads as under:
"Whether an order of the High Court under
Section 394 of the Companies Act,
2013/Section 232 of the Companies Act,
2013, sanctioning a single composite scheme
of arrangement, is not a single indivisible
instrument that is not comprising or relating
to several distinct matters or distinct
transactions as contemplated by Section 5 of
the Stamp Act and not subject to levy as such,
considering the fact that the instrument
covered under Article 20(d) of Schedule-I to
the Stamp Act, would be the order of the
High Court, and not the scheme sanctioned
by such order?"
46. The incidental question which has been raised in
S.R.No.4 of 2020 as question No.II is to the following
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
effect :
"Assuming that an order of the High Court
under Section 232 of the Companies Act,
1956, sanctioning a single composite scheme
of arrangement, albeit between multiple
companies, is an instrument comprising or
relating to several distinct matters or distinct
transactions, whether as per Article 20(d) of
Schedule-I to the Stamp Duty Act, stamp duty
chargeable on such an order would not be
calculated on the aggregate of amount
pertaining to each of such distinct matters
and is subjected to a maximum cap of Rs.25
Crores?"
47. The above referred questions being inter-linked and
connected one with the other, we are of the considered
view that it would be apt and appropriate that aforesaid
questions are to be answered conjointly by considering
the relevant provisions as answers to these questions are
likely to overlap. Hence, they are taken up together,
adjudicated and answered.
48. Explanation-III (c) of Article 20(d) of Schedule-I of
the Gujarat Stamp Act has been the center of issue in
these references and the question of law namely question
No.1 referred to in S.R.Nos.1 of 2021 and 2 of 2020,
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
question No.2 in S.R.No.1 of 2021, question Nos.2 and 5
in S.R.No.2 of 2020 and 7 of 2020, question No.1 in
S.R.Nos.3 of 2020 and 1 of 2021 are being dealt with
collectively.
49. Question No.2 in S.R.No.3 of 2020 refers to
interpretation of physical legislation. The interpretation
of Section 5 of the Gujarat Stamp Act relating to single
instrument - distinct matters is referable to question No.1
raised in S.R.Nos.5 of 2020 and 4 of 2020 and question
No.4 in S.R.No.6 of 2020. Question Nos.2 and 1 in
S.R.No.4 of 2020 and 7 of 2020, question No.1 in
S.R.No.7 of 2020 and question No.2 in S.R.No.7 of 2020
relates to the said subject, whereas question No.6 in
S.R.No.7 of 2020 relates to stamp duty payable in respect
of properties situated outside the State. The questions
referred to in S.R.No.1 of 2020 are being independently
dealt with. Likewise, question No.3 in S.R.No.3 of 2020,
question No.7 in S.R.No.7 of 2020, question No.1 in
S.R.No.6 of 2020, question No.3 in S.R.No.6 of 2020,
question No.2 in S.R.No.6 of 2020 and question No.4 in
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
S.R.No.7 of 2020 are being independently dealt with and
accordingly, they are dealt with.
DISCUSSIONS AND FINDING
50. The taxing statutes are required to be strictly
interpreted especially when the language used by the
Legislature is plain and unambiguous. It is well-settled
principles of law that, the intention of the Legislature
while enacting a taxing provision would be taken into
consideration while interpreting the relevant provisions.
In Cape Brandy Syndicate vs. IRC, reported in
(1921) 1 KB Page 64, it is observed :
"In a taxing statute one has to look merely
at what is clearly said. There is no room for
any intendment. There is no equity about a
tax. There is no presumption about a tax.
Nothing is to be read in, nothing is to be
implied. One can only look fairly at the
language used."
51. The Hon'ble Apex Court in the case of Member
Secretary, Andhra Pradesh State Board for
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Prevention and Control of Water Pollution vs.
Andhra Pradesh Rayons Ltd and others reported in
AIR 1989 SC 611 has held that "to find out the intention
of the legislation, if possible it should be found out from
the language used in case of doubt. It has been further
held :
"10.We fail to see that Rayon Grade Pulp
could be considered even remotely connected
as such with chemical industry or textile
industry or paper industry. In all
preparations, there is certain chemical
process but that does not make all industries
chemical industries. The expression
"chemical" means, according to Collins
English Dictionary. any substance used in or
resulting from a reaction involving changes to
atoms or molecules or used in chemistry. The
Concise Oxford Dictionary, 8th Edition page
170 defines "chemical'' as made by or relating
to, chemistry. Broadly and literally, in our
opinion, it can be said that the Rayon Grade
Pulp is neither chemical industry nor textile
industry nor paper industry. We find it
difficult on a broad and literal construction to
bring the industry of the respondent into any
of these categories. In other words, to find
out the intention of the legislation, if possible
it should be PG NO 387 found out from the
language used in case of doubt. The purpose
of legislation should be sought for to clarify
the ambiguity only, if any. The fairest and
most rational method, says Blackstone, to
interpret the will of the legislator is by
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
exploring his intentions at the time when the
law was made, by signs the most natural and
probable. And these signs are either the
words, the context, the subject matter, the
effects and consequence, or the spirit and
reason of the law. See Commentaries on the
Laws of England by Blackstone (facsimile of
1st edition of 1765, University of Chicago
Press, 1979 Vol. 1 p. 59.). The words are
generally to be understood `in their usual and
most known signification', although terms of
art `must be taken according to the
acceptation of the learning in each art, trade
and science. If words happen still to be
dubious, we may establish their meaning from
the context, which includes the preamble to
the statute and laws made by the same
legislator on the same subject. Words are
always to be understood as having regard to
the subject matter of the legislation. See
Cross Statutory Interpretation, 2nd Edition
page 21."
52. The Hon'ble Apex Court in the case of the
Commissioner of Income Tax, (Patiala) vs. M/s.
Shahzada nand and Sons and Others reported in
AIR 1966 SC 1342, has held to the following effect :
"8. Before we advert to the said arguments,
it will be convenient to notice the relevant
rules of construction. The classic statement of
Rowlatt, J., in Cape Brandy Syndicate v. I.R.C.
(3). still holds the field. It reads :
"In a Taxing Act one has to look merely at
what is clearly said. There is no room for any
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
intendment. There is no equity about a tax.
There is no presumption as to a tax. Nothing
is to be read in, nothing is to be implied. One
can only look fairly at the language used."
To this may be added a rider': in a case of
reasonable doubt, the construction most
beneficial to the subject is to be adopted. But
even so, the fundamental rule of construction
is the same for all statutes, whether fiscal or
otherwise. "The underlying principle is that
the meaning and intention of a statute must
be collected from the plain and unambiguous
expression used therein rather than from any
notions which may be entertained by the
court as to what is just or expedient." The
expressed intention must guide the court.
Another rule of construction which is relevant
to the present enquiry is expressed in the
maxim, generalia specialibus non derogant,
which means that when there is a conflict
between a general and a special provision,
the latter shall prevail. The said principle has
been stated in Craies on Statute Law, 5th
Edn., at P. 205, thus :
"The rule is, that whenever there is a
particular enactment and a general
enactment in the same statute, and the latter,
taken in its most comprehensive sense, would
overrule the former, the particular enactment
must be operative, and the general
enactment must be taken to affect only the
other parts of the statute to which it may
properly apply."
But this rule of construction is not of,
universal application. It is subject to the
condition that there is nothing in the general
provision, expressed or implied, indicating an
intention to the contrary : see Maxwell on
Interpretation of Statutes, 11th Edn., at pp.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
168-169. When the words of a section are
clear, but its scope is sought to be curtailed
by construction, the approach suggested by
Lord Coke in Heydons case (1), yield better
results :
"To arrive at the real meaning, it is always
necessary to get an exact conception of the
aim, scope, and object of the whole Act : to
consider, according to Lord Coke : (1) What
was the law before the Act was passed; (2)
What was the mischief or defect for which the
law had not provided ; (3) What remedy
Parliament has appointed ; and (4) The
reason of the remedy."
53. Keeping the aforesaid principles in mind, we deem it
appropriate to extract the relevant provisions of the
Gujarat Stamp Act, 1958 (referred to as "the Stamp Act")
namely the relevant provisions :
"The Gujarat Stamp Act, 1958
2. Definitions :-
(a) to (f) xxxxx
(g) "Conveyance" includes,-
(i) a conveyance on sale,
(ii) every instrument,
(iii) every decree or final order of any civil
Court; [***]
[(iv) every order made by National Company
Law Tribunal under section 232 of the
Companies Act, 2013 (18 of 2013) in respect
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
of a scheme for reconstruction of the
company or companies involving merger or
the amalgamation of any two or more
companies and every order made by the
Reserve Bank of India under section 44A of
the Banking Regulation Act 1949 (10 of
1949) in respect of amalgamation or
dissolution of Banking companies, or;]
[(v) any writing or letter of allotment in
respect of the premises, given to its
members or allottee by a co-operative
society registered or deemed to have been
registered under the Gujarat Co-operative
Societies Act, 1961 (Gujarat X of 1962),or a
corporation or an association formed and
registered under the Bombay Non-Trading
Corporation Act, 1959 (Bombay XXVI of
1959) or the Gujarat Ownership Flat Act,
1973 (Gujarat 13 of 1973) as the case may
be.]
by which property, whether movable or
immovable, or any estate or interest in any
property is transferred to, or vested in, any
other person, inter vivos, and which is not
otherwise specifically provided for by
Schedule I;
Explanation- For the purposes of this clause,
an instrument whereby a co-owner of any
property transfers his interest to another co-
owner of the property and which is not an
instrument of partition shall be deemed to
be an instrument by which property is
transferred inter vivos',]"
(h) to (k) xxxx
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
(l) "instrument" includes every document by
which any right or liability is or purports to be
created transferred limited extended
extinguished or recorded but does not include
a bill of exchange cheque promissory note bill
of lading letter of credit policy of insurance
transfer of share debenture proxy and receipt;
Explanation - The term "document" also
includes any electronic record as defined in
clause (t) of sub-section 91) of section 2 of the
Information Technology Act, 2000." (21 of
2000).
5. Instruments relating to several
distinct matters.- Any instrument comprising
or relating to several distinct matters or
distinct transactions shall be chargeable with
the aggregate amount of the duties with which
separate instruments, each comprising or
relating to one of such matters or distinct
transactions would be chargeable under this
Act.
Article Description of instrument Proper stamp
duty
20 (d) CONVEYANCE [Subject to
maximum
[so far as it relates to the twenty five
scheme, for reconstruction crores rupees]
of the company or -
companies involving merger
or the amalgamation of any (i) an amount
two or more companies by equal to [one
an order of the National per cent] of
Company Law Tribunal the aggregate
under section 232 of the amount
Companies Act, 2013 (18 of comprising of
2013) or for amalgamation the market
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
or dissolution of Banking value of share
Companies by an order of issued or
the Reserve Bank of India allotted in
under section 44A of the exchange of or
Banking Regulation Act, otherwise, or
1949 (10 of 1949)] the face value
of such shares,
[Explanation I - For the whichever is
purpose of this Article [and higher and the
subject to sub-item (a) of amount of
item (ii) of clause (f) of consideration,
article 45], an agreements if any, paid for
to sell an immovable such
property or an irrevocable amalgamation,
power of attorney shall, in or
case of transfer of the
possession of such property (ii) an amount
before, at the time of, or equal to [one
after the execution of such percent] of the
agreement or power of true market
attorney, be deemed to be a value of the
conveyance and the stamp immovable
duty thereon shall be property
chargeable accordingly: situated in the
State of
Provided that the provisions Gujarat of the
of section 32 - A shall apply transferor
mutatis mutandis to such company
agreement or power of whichever is
attorney as are applicable higher.]
to a conveyance:
Provided further that where
subsequently a conveyance
is executed in pursuance of
such agreement of sale, or
an irrevocable power of
Attorney, the stamp duty, if
any, already paid and
recovered on the agreement
of sale or an irrevocable
power of Attorney which is
deemed to be a conveyance,
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
shall be adjusted towards
the total duty leviable on
the conveyance.]
[Explanation II] - For the
purposes of this Article, the
expression "premises"
means any land or building
or part of a building
including any flat,
apartment, tenement, shop
or warehouse therein and
includes:-
(i) gardens, grounds and out
houses, if any, appertaining
to such building or part of a
building, and
(ii) any fittings affixed to
such building or part of a
building for the more
beneficial enjoyment
thereof]
[Explanation III - for the
purpose of clause (d), the
market value of share-
(a) in relation of the
transferee company whose
shares are listed and quoted
for trading on a stock
exchange, means the
market value of share as on
the appointed date
mentioned in the scheme of
amalgamation or when
appointed date is not so
fixed, the date of [order of
the National Company Law
Tribunal or, as the case may
be, the order of the Reserve
Bank of India].
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
(b) In relation to the
transferee company, whose
shares are not listed or
listed but not quoted for
trading on a stock exchange
means the market value of
the share issued or allotted
with reference to the
market value of share of the
transferor company.
(c) Where the transferee
company and transferor
company, whose shares are
not listed or listed but not
quoted for trading on stock
exchange means the face
value of the share issued or
allotted with reference to
the face value of share of
the transferee company.
54. Explanation-III (c) in Article 20(d) of Schedule-I of
the Gujarat Stamp Act is the focal provision and as such,
the said provision is extracted hereinbelow :
Article Description of instrument Proper stamp
duty
20 (d) CONVEYANCE [Subject to
maximum twenty
[so far as it relates to the five crores
scheme, for reconstruction of rupees] -
the company or companies
involving merger or the (i) an amount
amalgamation of any two or equal to [one per
more companies by an order cent] of the
of the National Company Law aggregate
Tribunal under section 232 of amount
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
the Companies Act, 2013 (18 comprising of the
of 2013) or for amalgamation market value of
or dissolution of Banking share issued or
Companies by an order of the allotted in
Reserve Bank of India under exchange of or
section 44A of the Banking otherwise, or the
Regulation Act, 1949 (10 of face value of such
1949)] shares,
whichever is
[Explanation I - For the higher and the
purpose of this Article [and amount of
subject to sub-item (a) of consideration, if
item (ii) of clause (f) of any, paid for such
article 45], an agreements to amalgamation, or
sell an immovable property
or an irrevocable power of (ii) an amount
attorney shall, in case of equal to [one
transfer of the possession of percent] of the
such property before, at the true market value
time of, or after the of the immovable
execution of such agreement property situated
or power of attorney, be in the State of
deemed to be a conveyance Gujarat of the
and the stamp duty thereon transferor
shall be chargeable company
accordingly: whichever is
higher.]
Provided that the provisions
of section 32 - A shall apply
mutatis mutandis to such
agreement or power of
attorney as are applicable to
a conveyance:
Provided further that where
subsequently a conveyance is
executed in pursuance of
such agreement of sale, or an
irrevocable power of
Attorney, the stamp duty, if
any, already paid and
recovered on the agreement
of sale or an irrevocable
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
power of Attorney which is
deemed to be a conveyance,
shall be adjusted towards the
total duty leviable on the
conveyance.]
[Explanation II] - For the
purposes of this Article, the
expression "premises" means
any land or building or part
of a building including any
flat, apartment, tenement,
shop or warehouse therein
and includes:-
(i) gardens, grounds and out
houses, if any, appertaining
to such building or part of a
building, and
(ii) any fittings affixed to
such building or part of a
building for the more
beneficial enjoyment thereof]
[Explanation III - for the
purpose of clause (d), the
market value of share-
(a) in relation of the
transferee company whose
shares are listed and quoted
for trading on a stock
exchange, means the market
value of share as on the
appointed date mentioned in
the scheme of amalgamation
or when appointed date is
not so fixed, the date of
[order of the National
Company Law Tribunal or, as
the case may be, the order of
the Reserve Bank of India].
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
(b) In relation to the
transferee company, whose
shares are not listed or listed
but not quoted for trading on
a stock exchange means the
market value of the share
issued or allotted with
reference to the market
value of share of the
transferor company.
(c) Where the transferee
company and transferor
company, whose shares are
not listed or listed but not
quoted for trading on stock
exchange means the face
value of the share issued or
allotted with reference to the
face value of share of the
transferee company.
55. In the case of S.R.No.2 of 2020, the facts would
disclose that the Company Court (High Court of Gujarat)
passed an order sanctioning a composite scheme of
arrangement between Troikaa Pharmaceuticals Limited
('TPL', for short) and Troikaa Exports Private Limited
('TEPL', for short) vide order dated 09.03.2016. Pursuant
to the said scheme of approval, the windmill division of
TPL - transferor was transferred and vested with the
applicant - TEPL as an on-going concern and entire
business of residual transferor was amalgamated with
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
applicant. The applicant was converted into a public
limited company and was renamed as Troikaa
Pharmaceuticals Limited. The certificate issued by
Registrar of Companies on 15.06.2016 (Annexure-C in
S.R.No.2 of 2020) would evidence this fact.
56. Section 5 of the Gujarat Stamp Act, 1958, mandates
that any instrument comprising or relating to several
distinct matters or distinct transactions shall be
chargeable with the aggregate amount of the duties with
which separate instrument, each comprising or relating
to one of such instrument, or distinct transactions would
be chargeable under the Act. The expression 'instrument'
has been defined under Section 2(l) which reads as
under :
"2(l) "instrument" includes every document
by which any right or liability is, or purports
to be, created, transferred, limited, extended,
extinguished or recorded but does not include
a bill of exchange, cheque, promissory note,
bill of lading, letter of credit, policy of
insurance, transfer of share, debenture, proxy
and receipt."
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
57. Section 2(g) defines the word or expression
'conveyance' and 2(g)(2) would take within its sweep
every instrument as conveyance. Thus, the scheme which
came to be sanctioned by the Company Court on
09.03.2016 would partake the character of instrument
which is covered under Section 5 of the Stamp Act since
it relates to transfer of windmill unit of transferor
company to the applicant company and entire business of
residual transferor company was amalgamated with the
applicant, consideration of which was Rs.1.40 Crores and
thereby the stamp duty payable would be Rs.1,40,000/-
namely 1%. Insofar as amalgamation of residuary units
and properties of transferor which was with the applicant
namely TEPL was for consideration of the equity shares
and preference shares as under :
"(a) 6,25,43,220 equity shares having face
value of Rs.10/- have been issued by
Applicant at premium of Rs.67. Thus, value of
each share is Rs.77. Aggregate value of
shares is Rs.481,58,27,940/ -.
(b) 6,29,700 preference shares having value
of Rs.10/- each have been issued by
Applicant. Thus, aggregate value of said
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
preference shares is Rs.62,97,000.
(c) 38,88,000 preference shares having value
of Rs.10/- each have been issued by
Applicant. Thus, aggregate value of said
preference shares is Rs.3,88,80,000.
Thus, total value of shares issued is
Rs.486,10,04,940/ - and the same is higher
than total value of immovable properties in
the State of Gujarat that are getting
transferred. Hence, stamp duty payable for
the said amalgamation would be
Rs.4,86,10,049/ -."
58. It is an undisputed fact that both the transferor and
the applicant company are not listed in any stock
exchange. In such circumstances, Explanation-III (c) to
Article 20(d) would provide an answer as to what would
be the proper stamp duty namely the face value of the
shares issued by the applicant are deemed to be its
market value.
59. Article 20(d) stipulates that subject to maximum of
Rs.25 Crores, there shall be a determination of 1% of the
aggregate amount, comprising of the market value of
shares issued or allotted in exchange of or the face value
of such shares whichever is higher and the amount of
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
consideration, if any paid for such amalgamation or an
amount equal to 1% of the true market value of the
immovable properties situated in the State of Gujarat of
the transferor company whichever is higher.
60. Explanation - III defines 'market value of share' in
three situations namely,
(a) Where the shares of the transferee
company are listed,
(b) Where the shares of transferee company
are not listed, but the shares of the
transferor company are listed, and
(c) Where the shares of neither transferor or
transferee company are listed.
61. Explanation-III (c) stipulates that insofar as market
value of share is concerned, in the case of shares of the
transferor and the transferee company; both not being
listed or listed but not quoted on the stock exchange, it is
to mean the face value of the share issued or allotted with
reference to the face value of shares of the transferee
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
company.
62. It is an undisputed fact that in the facts of the
present case as disclosed from the case papers that
shares of both the transferor and the applicant are not
listed on any stock exchange. Thus, as per Explanation-
III(c), the market value of the shares issued by the
applicant is deemed to be its face value, irrespective of
whether such shares are being issued at a premium or
not.
63. As noticed hereinabove, Article 20 deals with
conveyance. The applicable clause or clause which has
been pressed into service by both the sides and rightly so
would be sub-article (d) which can be construed as centre
controversy in the present proceedings. 'Conveyance' as
defined under the Stamp Act insofar as it relates to the
scheme for reconstruction of the company or companies
involving merger or the amalgamation of any work or
more companies by an order of the National Company
Law Tribunal under Section 232 of the Act, 2013 or under
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Section 394 of the Old Companies Act, 1956 or for
amalgamation or dissolution of banking companies by an
order of Reserve Bank of India under Section 44A of the
Banking Regulations Act, 1949 would take within its
sweep such instrument also for being defined as
conveyance. For such type of instrument, the proper
stamp duty which is prescribed is subject to maximum
Rs.25 crore - sub-paragraph (i) an amount equal to 1% of
aggregate amount comprising of market value of shares
issued or allotted in exchange of or otherwise or the face
value of such shares whichever is higher and the amount
of consideration, if any paid for such amalgamation.
Explanation III to clause (d) would indicate that for the
purpose of clause (d), the market value of share is to be
calculated on the basis of explanation given thereunder.
It is a settled position of law that explanation added to a
statutory provision is not a substantive provision under
any of the terms as plain meaning of the words itself
shows that it is merely to explain or clarify certain
ambiguity which may have crept in the statutory
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
provision.
64. An explanation is at times appended to a section to
explain the meaning of words contained in the section. It
becomes a part and parcel of the enactment. The function
of an explanation is to explain and the meaning and effect
of the main provision to which it is an explanation and to
clear the doubt or ambiguity that may arise if any.
However, ultimately the intention of the legislature being
paramount the words used by the legislature alone would
prevail of its intent and it must be construed having
regard to the context and in setting which they occur. The
Hon'ble Apex Court in the case of S. Sundaram Pillai,
Etc. vs. V.R. Pattabiraman Etc. [(1985) 1 SCC 591]
has held:
"53.Thus, from a conspectus of the authorities
referred to above, it is manifest that the
object of an Explanation to a statutory
provision is-
(a) to explain the meaning and intendment of
the Act itself,
(b) where there is any obscurity or vagueness
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
in the main enactment, to clarify the same so
a- to make it consistent with the dominant ob-
ject which it seems to subserve,
(c) to provide an additional support to the
dominant object of the Act in order to make it
meaningful and purposeful,
(d) an Explanation cannot in any way inter-
fere with or change the enactment or any part
thereof but where some gap is left which is
relevant for the purpose of the Explanation, in
order to suppress the mischief and advance
the object of the Act it can help or assist the
Court in interpreting the true purport and in-
tendment of the enactment, and
(e) it cannot, however, take away a statutory
right with which any person under a statute
has been clothed or set at naught the working
of an Act by becoming an hindrance in the in-
terpretation of the same."
65. An explanation must be interpreted according to its
own tenor. The construction of the explanation must
depend upon its term and no theory of purpose can be
entertained unless it is to be inferred from the language
used in the legislature in that particular enactment. The
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
explanation must be read so as to harmonise with and
clear up any ambiguity in the main section. It would not
be used or construed so as to widen the ambit of the
section.
66. It is now well settled that explanation added to a
statutory provision is not a substantive provision in any
sense of the term but as a plain reading of the word itself
shows it is merely entertained to explain or clarify certain
ambiguities which may have crept in the statutory
provision. Sarathi on Interpretation of Statute while
dwelling on the various aspects of the explanation
observes as follows:
(a) The object of an explanation is to
understand the Act in the light of the
explanation;
(b) It does not ordinarily enlarge the scope of
the original section which it explains, but
only makes the meaning clear beyond
dispute (page 329).
67. Pindra in Interpretation of Statute (5th Edition)
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
at page 67 states thus:
"An explanation does not enlarge the scope of
the original section that it is supposed to
explain. It is axiomatic that explanation only
explains and does not expand or add to the
scope of original section. The purpose of an
explanation is, however, not to limit the scope
of the main provision ....."
68. The construction of the explanation must depend
upon its terms and no theory of purpose can be
entertained unless it is to be inferred from the language
used. An explanation 'must be interpreted' according to
its own tenor. The Hon'ble Apex Court in the case of
Pioneer Urban Land and Infrastructure Limited vs. Union
of India [(2019) 8 SCC 416] has reiterated the principles
of law enunciated in the case of Hira Lal Rattanlal vs.
State of U.P. [(1973) 1 SCC 216] followed in the case of
S. Sundaram Pillai referred to supra and held as under:
"97. It was also argued that an explanation
does not enlarge the scope of the original
section and for this purpose S. Sundaram
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Pillai (supra) was relied upon. This very
judgment recognises, in paragraph 46, that
an explanation does not ordinarily enlarge the
scope of the original Section. But if it does,
effect must be given to the legislative intent
notwithstanding the fact that the legislature
has named a provision as an explanation. [See
Hiralal Ratanlal Etc. v. State of U.P and Anr.
Etc. (1973) 1 SCC 216 at 225, followed in
paragraph 51 of Sundram Pillai (supra)]. In
any case, it has been found by us that the
explanation was added by the Amendment
Act only to clarify doubts that had arisen as to
whether home buyers/allottees were
subsumed within Section 5(8)(f). The
explanation added to Section 5(8)(f) of the
Code by the Amendment Act does not in fact
enlarge the scope of the original Section as
home buyers/allottees would be subsumed
within Section 5(8)(f) as it originally stood as
has been held by us hereinabove. As a matter
of statutory interpretation, that
interpretation, which accords with the objects
of the statute in question, particularly when
we are dealing with a beneficial legislation, is
always the better interpretation or the
"creative interpretation" which is the modern
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
trend of authority, and which is reflected in
the concurring judgment of Eera (through Dr.
Manjula Krippendorf) v. State (NCT of Delhi)
and Anr. (2017) 15 SCC 133 at paragraphs
122 and 127. This argument must, therefore,
also be rejected."
69. The purpose of use of explanation to a provision has
been succinctly explained by the Hon'ble Apex Court in
the case of K. Jagadeesan vs. Union of India [(1990) 2
SCC 231] as under:
"37.Sri Ramachandran urged that the
introduction, in the year 1984, of Explanation
I to Section 40(b) was not to effect or bring
about any change in the law, but was
intended to be a mere legislative exposition of
what the law has always been. An
'Explanation', generally speaking, is intended
to explain the meaning of certain phrases and
expressions contained in a statutory
provision. There is no general theory as to
the effect and intendment of an Explanation
except that the purposes and intendment of
the 'Explanation' are determined by its own
words. An Explanation, depending on its
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
language, might supply or take away
something from the contents of a provision.
It is also true that an Explanation may - this
is what Sri Ramachandran suggests in this
case - be introduced by way of abundant
caution in order to clear any mental cobwebs
surrounding the meaning of a statutory
provision spun by interpretative errors and to
place what the legislature considers to be the
true meaning beyond controversy or doubt.
Hypothetically, that such can be the possible
purpose of an 'Explanation' cannot be
doubted. But the question is whether in the
present case, Explanation I inserted into
Section 40(b) in the year 1984 has had that
effect.
38. The notes on clauses appended to the
Taxation Laws (Amendment) Bills, 1984, say
that clause 10 which seeks to amend Section
40 will take effect from April 1, 1985 and will,
accordingly, apply in relation to the
assessment year 1985-86 and subsequent
years. The expression prospective operation
and effectuation of the 'Explanation' might,
perhaps, be a factor necessarily detracting
from any evincement of the intent on the part
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
of the legislature that the Explanation was
intended more as a legislative exposition or
clarification of the existing law than as a
change in the law as it then obtained. In view
of what we have said on point (c) it appears
unnecessary to examine this contention any
further."
70. The Hon'ble Apex Court in the case of Aphali
Pharmaceuticals Limited vs. State of Maharashtra
[(1989) 4 SCC 378] has reiterated that legislative intent
should be the paramount while holding that schedule in
an Act of parliament is a mere question of drafting and
explanation to the schedule amounts to an explanation in
the Act itself and held :
"31. A Schedule in an Act of Parliament is a
mere question of drafting. It is the legislative
intent that is material. An Explanation to the
Schedule amounts to an Explanation in the
Act itself. As we read in Halsbury's Laws of
England, Third Edition, Vol. 36, para 551:
"To simplify the presentation of statutes, it is
the practice for their subject matter to be
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
divided, where appropriate, between sections
and schedules, the former setting out matters
of principle, and introducing the latter, and
the latter containing all matters of detail. This
is purely a matter of arrangement, and a
schedule is as much a part of the statute, and
as much an enactment, as is the section by
which it is introduced." The schedule may be
used in construing provisions in the body of
the Act. It is as much an act of Legislature as
the Act itself and it must be read together
with the Act for all purposes of construction.
Expressions in the Schedule cannot control or
prevail against the express enactment and in
case of any inconsistency between the
schedule and the enactment the enactment is
to prevail and if any part of the schedule
cannot be made to correspond it must yield to
the Act. Lord Sterndale, in Inland Revenue
Commissioners v. Gittus, [1920] 1 K.B. 563
said:
"It seems to me there are two principles of
rules of interpretation which ought to be
applied to the combination of Act and
Schedule. If the Act says that the Schedule is
to be used for a certain purpose and the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
heading of the part of the Schedule in
question shows that it is prima facie at any
rate devoted to that purpose, then you must
read the Act and the Schedule as though the
Schedule were operating for the purpose, and
if you can satisfy the language of the section
without extending it beyond that purpose you
ought to do it. But if in spite of that you find
in the language of the Schedule words and
terms that go clearly outside that purpose,
then you must give effect to them and you
must not consider them as limited by the
heading of that part of the Schedule or by the
purpose mentioned in the Act for which the
Schedule is prima facie to be used. You
cannot refuse to give effect to clear words
simply because prima facie they seem to be
limited by the heading of the Schedule and
the definition of the purpose of the Schedule
contained in the Act."
71. It is a trite law that explanation cannot operate as
'exception' or 'proviso' it may only explain and may not
expand or add to the scope of the original section. In
certain circumstances, it could introduce a fiction or
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
settle a matter of controversy. The construction of an
explanation would depend upon its term and no theory of
purpose can be entertained unless it is be inferred from
the language used in the legislature in that particular
enactment.
72. An explanation may be added to include something
within or to exclude something from the ambit from the
main enactment or the connotation of some words
occurring in it. An explanation would be normally read so
as to harmonise with and clear up any ambiguity in the
main section and it would not be construed so as to widen
the ambit of the section.
73. An explanation can also be incorporated by the
legislature out of abundant caution or to be on the safe
side - ex-abundanti cautela.
74. In this background, the interpretation of the words
or expression 'market value of share' as is found in Article
20(d) viz. the corresponding column of the said entry for
levy a proper stamp duty will have to be necessarily read
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
in context of Explanation III whereunder the legislature
has clearly held for the purpose of application of clause
(b), the market value of share will have to be necessarily
done as explained in clauses (a) to (c) thereunder viz.
where the market value of share issued or allotted in
explanation of or otherwise, if it relates to a share of
transferee company whose shares are listed; or (b)
where shares of transferee company are not listed, but
the shares of transnferor are listed; or (c) where the
shares of neither of the companies viz. transferor or
transferee companies are listed.
75. It is an undisputed fact in the instant case that
shares of both transferor and the applicant (Stamp
Reference No.2/2020 and S.R.No.1/2021) are listed in any
stock exchange. Thus, explanation (c) would be attracted
for the purpose of determining the market value of share
vis-à-vis application of Article 20(d). As per Explanation
III (c), the market value of shares issued by the applicant
company is deemed to be its face value, irrespective of
whether such shares are being issued at a premium or
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
not.
76. There cannot be any dispute to the fact that the
Stamp Act is a fiscal statute and its provision being
required to be strictly construed. For this proposition,
the judgment of the Hon'ble Apex Court in the case of
Board of Revenue, Uttar Pradesh vs. Rai Saheb
Sidhnath Mehrotra [AIR 1965 SC 1092] can be looked
into whereunder it has been held:
"9. Before we considered the facts of this
case, we may mention that it is plain from the
explanation that it is only the unpaid
mortgage money that is deemed to be part of
the consideration. If the mortgage money has
been paid off by the date of the conveyance
the explanation does not require it to be
added to the consideration. If the mortgage
money has been paid off by the vendee before
the date of the sale, as part of the
consideration, it would be included in the
amount leviable with stamp duty under Art.
23, but not under the explanation. The
conveyance deed would, in the above
eventuality, recite the fact that so much
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
money has been paid to the mortgagee and it
would be the consideration expressed in the
deed."
77. We need to hardly say that the Stamp Act is a
taxation statute and must be construed strictly and the
two impact are equally possible, the meaning in favour of
the subject must be given effect too.
78. The Hon'le Apex Court in the case of Commissioner
of Income Tax-III vs. M/s. Calcutta Knitwears
[(2014) 6 SCC 444] has held that machinery provisions
must be construed to effectuate the objectives and
purpose of statute. It has been further held that:
"20. Section 158-BD of the Act provides for
"undisclosed income" of any other person.
Before we proceed to explain the said
provision, we intend to remind ourselves of
the first or the basic principles of
interpretation of a fiscal legislation. It is time
and again reiterated that the courts, while
interpreting the provisions of a fiscal
legislation should neither add nor subtract a
word from the provisions of instant meaning
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
of the sections. It may be mentioned that the
foremost principle of interpretation of fiscal
statutes in every system of interpretation is
the rule of strict interpretation which
provides that where the words of the statute
are absolutely clear and unambiguous,
recourse cannot be had to the principles of
interpretation other than the literal rule
(Swedish Match AB v. Securities and
Exchange Board, India, AIR 2004 SC 4219,
CIT v. Ajax Products Ltd. [1965] 55 ITR 741
(SC)).
34. It is the duty of the court while
interpreting the machinery provisions of a
taxing statute to give effect to its manifest
purpose. Wherever the intention to impose
liability is clear, the Courts ought not be
hesitant in espousing a commonsense
interpretation to the machinery provisions so
that the charge does not fail. The
machinery provisions must, no doubt, be so
construed as would effectuate the object and
purpose of the statute and not defeat the
same (Whitney v. Commissioners of Inland
Revenue 1926 A C 37, CIT v. Mahaliram
Ramjidas (1940) 8 ITR 442, Indian United
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Mills Ltd. v. Commissioner of Excess Profits
Tax, Bombay [1955] 27 ITR 20(SC), and
Gursahai Saigal v. CIT, Punjab [1963] 1 ITR
48(SC); Commissioner of Wealth Tax, Meerut
v. Sharvan Kumar Swarup & Sons, (1994) 6
SCC 623; CIT v. National Taj Traders, (1980)
1 SCC 370; Associated Cement Company Ltd.
v. Commercial Tax Officer, Kota and Ors., (48)
STC 466). Francis Bennion in Bennion on
Statutory Interpretation, 5th Ed., Lexis Nexis
in support of the aforesaid proposition put
forth as an illustration that since charge made
by the legislator in procedural provisions is
excepted to be for the general benefit of
litigants and others, it is presumed that it
applies to pending as well as future
proceedings."
79. The stand of the Revenue that in common business
parlance the expression 'face value' is the value of
assigned to a share when it is issued to be treated as on
par with market value for the purpose of computation of
one part of the aggregate cannot be astute for reasons
more than one. The principle of ejusdem generis to
invoking applicability of its rules, there must be genes
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
category, specific words and same would be applied not
to object but to something which can be called as a class
or kind of object where this is lacking rule will not apply
and mention of single species will not constitute genes.
This proposition gets its support from the authoritative
principles of the Hon'ble Apex Court in the case of Union
of India vs. Manraj Enterprises [(2022) 2 SCC 331]
whereunder it has been held:
"12.2 Insofar as argument based on the
principle of ejusdem generis is concerned, the
Division Bench has held that that is not
applicable in the present case. We find that it
is rightly so held. Ejusdem generis is the rule
of construction. The High Court has negated
this argument in the following manner:
(Jaiprakash Associates Ld. V. Tehri Hydro
Development Corpn., 2012 SCC OnLine Del
6213] "18. The rule of ejusdem generis guides
us that where two or more words or phrases
which are susceptible of analogous meaning
are coupled together, a noscitur a sociis, they
are to be understood to mean in their cognate
sense and take colour from each other but
only if there is a distinct genus or a category.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Where this is lacking i.e., unless there is a
category, the rule cannot apply." As rightly
held, the rule of ejusdem generis would be
applied only if there is distinct genus or a
category, which is lacking in the instant case.
This rule is applicable when particular words
pertaining to a clause, category or genus are
followed by general words. In such a
situation, the general words are construed as
limited to things of same kind as those
specified. In that sense, this rule reflects an
attempt "to reconcile incompatibility between
the specific and general words in view of the
other rules of interpretation that all words in
a statute are given effect, if possible, that a
statute is to be construed as a whole and that
no words in a statute were presumed to be
superfluous". [See Lokmat Newspapers (P)
Ltd. v. Shankarprasad [Lokmat Newspapers
(P) Ltd. v. Shankarprasad, (1999) 6 SCC
275]."
80. A perusal of Article 20(d)(i) would indicate that
aggregate amount comprising either of the market value
of share or the face value of such share whichever is
higher issued or allotted in exchange and the amount of
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
consideration, if any paid for such amalgamation would
be liable to duty of 1% of such aggregate amount. This
provision clearly indicates that so far as the words 'share'
and 'consideration' are concerned, they are altogether
different. Explanation III (c) clearly indicates that where
the transferee or transferor company whose shares are
not listed or not quoted for trading on stock exchange,
face value of share issued or allotted would be with
reference to the said face value, as indicated thereunder
and as such to consider the premium on such share as
part of consideration paid for such amalgamation is
nothing but reiterating or incorporating an addition
which is not mentioned in the provision itself, which is
impermissible particularly while interpreting a fiscal
statute. As such, the contention raised by the Revenue in
this regard cannot be accepted. The scheme which came
to be sanctioned by the Company Court viz. the composite
scheme of arrangement pursuant to the sanction of the
said scheme it transpired as under:
(i) Windmill division of the transferor was
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
transferred and vested in the applicant as an
ongoing concern;
(ii) Entire business of residual transferor was
amalgamated with the applicant;
(iii) Applicant was converted into a public
limited company; and
(iv) Applicant was renamed as Troikaa
Pharmaceuticals Limited.
81. As far as amalgamation of residuary units and
properties of transferor to the applicant is concerned, (a)
6,25,43,220 equity shares having face value of Rs.10 have
been issued by the applicant at premium of Rs.67,
6,29,700 preferential shares having face value of Rs.10
have been issued by the applicant; and 38,88,000
preferential shares having face value of Rs.10 each have
been issued by the applicant. On the basis of the
aggregate value of shares which includes face value and
the premium value the amount of stamp duty payable has
been arrived at Rs.4,86,10,049/-, whereas on the face of
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
shares and further stamp duty on transfer of windmill
unit to the transferee company for which consideration of
Rs.1,40,00,000/-, the total stamp duty payable would 1%
of the consideration, i.e. Rs.1,40,000/- viz. the aggregate
value of shares being Rs.67,06,09,200/- plus
consideration for transfer of windmill unit being
Rs.1,40,00,000/- (Rs.67,06,092 + Rs.1,40,000 =
Rs.68,46,092). The Revenue Authorities have held that
the shares have been issued for consideration of
amalgamation since such shares are being issued at a
premium, its market value cannot be calculated on the
basis of the face value of such shares. It has been the
contention of the Revenue Authorities that in case of non-
listed companies the stamp duty is required to be
calculated by aggregating face value with consideration.
In other words, it is claimed that amount of premium is a
'consideration' other than shares as referred to in Article
20(d)(i) of Schedule I of the Stamp Act. A plain reading of
Article 20(d)(i) would reveal that the stamp duty
chargeable on an instrument covered under Article 20(d)
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
is an amount equal to 1% of the aggregate amount
comprising (i) the market value of shares issued or
allotted in exchange of or otherwise, or face value of such
shares, whichever is higher; (ii) the amount of
consideration if any paid for such amalgamation.
Therefore, it would be clear that amount of consideration
referred to under Article 20(d)(i) is separate and distinct
from the 'market value of share'. Therefore, premium
being a part of market value of the share, such premium
cannot be treated as amount of consideration.
82. The Revenue Authorities have treated premium as a
part of market value of their shares in the respective
orders dated 19.8.2016 and 19.11.2019. Premium is not
distinct from the shares and cannot exist apart from the
shares. The premium is a part of the entire value of the
share. Same is also clear from the explanation found
under Article 18 of the Gujarat Stamp Act which explains
that 'value of shares, scrip or stock includes the
amount of premium, if any', wherein the legislature
has clearly clarified as to how the value of shares includes
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
the amount of premium if any. However, insofar as the
instrument defined or covered under Article 20(d) of
Schedule I to the Stamp Act are concerned, deeming
fiction viz. for the purpose of clause (d) the market value
of share has been clearly indicated under clause (a) to (c)
of Explanation III viz. the face value of shares issued
alone is required to be considered as its market value. In
that view of the matter, the arguments now put forth by
the learned Government Pleader to contend that the
words 'aggregate' is to be considered as 'consideration'
for such amalgamation cannot be accepted. Further
contention that premium has to be construed as
consideration for the purpose of Article 20(d) though at
first blush looks attractive, it is not so, inasmuch as the
intent of the legislature as is evident from the
Explanation III depicting the mode, method and manner
in which it requires to be calculated has been delineated.
The word 'premium' has been defined in Law Lexicon, 6th
Edition as under:
"Share premium - The amount by which the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
issue price of a share exceeds the nominal
value. This normally occurs when a fresh
issue of shares is made some time after the
first issue. Under the Companies Act, 1985,
the value of the share premium must be
credited to a share premium account.
The excess of the issue price of shares over
their face value.
On a new issue of shares, a premium charged
on the nominal value of the shares if it seems
that the real value is likely to be much
higher."
83. The premium is part of the entire value of the share.
The same is also clear from the provision of Article 18 of
Schedule-I of the Stamps Act, wherein legislature has
clarified as to how the value of the shares includes the
amount of premium, if any. However, so far as the
instruments covered under the Article 20(d) of Schedule-I
of the Stamps Act are concerned, we are of the
considered view that in view of the deeming fiction under
Explanation - III (c) the face value of the shares issued by
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
applicant is required to be considered as its market value.
84. In this background, a plain reading of Explanation III
(c) is indicative of the fact that where the transferee or
transferor companies whose shares are not listed or listed
but not quoted for trading on a stock exchange, means
the face value of the share issued or allotted, as indicated
in clause (c) to Explanation III and therefore to import the
words 'premium' to be part of such share or as part of
consideration paid for such amalgamation is nothing but
reiterating or incorporating in addition to what has been
contemplated by the legislature and which is not
mentioned in the provision. The Hon'ble Supreme Court
in R.I. Hospital Trust Company, Administrator vs.
Arthur H. Armington et al, Assessors of Taxes [21
R.I. 33 (1898)], has held as under:
"The premium for which the bonds might sell
in the market is only an incident of the bonds
and cannot exist apart therefrom. It goes to
make up the value thereof, and, as said by
plaintiffs, it is well understood that the
expectation of it is a strongly inducing motive
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
for the original purchase of such bonds."
85. The premium is not something distinct from the
above and what exists apart from the above, it is inherent
it and goes with it.
86. The Hon'ble Apex Court in the case of
Commissioner of Income Tax (Central), Calcutta vs.
Standard Vacuum Oil Company [AIR 1966 SC 1993]
has explained the expression 'premium' as under:
"7. Under the Companies Act, 1913, shares
could be issued for cash or against transfer of
property, and it is not claimed that under the
statute law in the State of Delaware a
different rule prevailed at the time when the
assessee company took over the assets of the
transferor companies. The Indian Companies
Act also places no restriction upon a company
issuing shares for a consideration which
exceeds the par value of the shares, and
there is no evidence on the record that in the
State of Delaware there is such a restriction.
A share is not a sum of money : it represents
an interest measured by a sum of money and
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
made up of diverse rights contained in the
contract evidenced by the articles of
association of the Company. In the absence of
any restriction in the law of Delaware against
the issue of shares otherwise than for cash,
when shares are issued for consideration
other than cash the value of the assets
transferred in excess of the par value of
shares issued would be regarded as premium
for purposes of our system of law. No serious
argument has been advanced before us on
behalf of the Commissioner controverting this
part of the case."
87. Turning our attention back to the article in issue viz.
Article 20 of the Gujarat Stamp Act, we are unable to
accept the stand of the Revenue that stamp duty is
required to be calculated on the aggregate face value and
additional consideration received by the transferor
company for transfer of its shares in favour of the
transferee company nor the contention that additional
amount that is received by the transferor company is the
share premium. If that were to be the intention of the
legislature, they would have said so expressly in Article
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
20(d) or explanation thereunder. This is more probable
view in view of the fact that wherever the word 'premium'
is to be mentioned or incorporated, same is expressly
indicated in the relevant articles of the Stamp Act. A
perusal of Article 18 which deals with the certificate or
other document which may be charged with the stamp
duty when read with the explanation provided
thereunder, it would indicate that for the purpose of said
article 'the value of shares, scrip or stock' would 'include
the amount of premium, if any'. Thus, if there have been
any intention to include the premium as a part of
consideration, same would have been provided clearly
under Article 20(d)(i). Clause (i) will have to be read in
two compartments viz. aggregate amount consisting of
either (i) market value; or (ii) face value of share,
whichever is higher and the amount of consideration, if
any, paid for amalgamation and as such it appears to us
that the word 'premium' cannot be read or added as part
of consideration as tried by the authority. It would not be
out of context also to refer the definition clause of market
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
value as defined under Section 2(n)(a) which defines the
market value as under:
"2(na) "market value", in relation to any
property which is the subject matter of an
instrument means the price which such
property would have fetched if sold in open
market on the date of execution of such
instrument;"
88. A plain reading of the above provision would
indicate that market value is the price what a seller
expects and a bona fide purchaser is willing to pay and as
such for the purpose of imposition of duty, Article 20(d)(i)
cannot be read in the manner in which the Revenue has
proposed. The aggregate amount which has been
mentioned in the said provision as indicated above being
in two components and the legislature having though fit
not to incorporate the said meaning in the provision, it is
not open for this Court to re-write the provision or to add
which is not provided in the provision itself.
89. It would be of benefit to note at this juncture the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
recently propounded judgment of the Hon'ble Apex Court
in the case of Ebix Singapore Pte Ltd vs. Committee
of Creditors of Educomp Solution Limited and
others [(2022) 2 SCC 401] whereunder the Hon'ble
Apex Court has enunciated of judicial restraint in the
matter of interpretation of economic statute and the
observation made therein would be a benefit to be noted
which reads:
"158. Judicial restraint must not only be
exercised while adjudicating upon the
constitutionality of the statute relating to
economic policy but also in matters of
interpretation of economic statutes, where
the interpretative maneuvers of the Court
have an effect of transgressing into the law-
making power of the legislature and
disturbing the delicate balance of separation
of powers between the legislature and the
judiciary. Judicial restraint must be exercised
in such cases as a matter of prudence, since
the court neither has the necessary expertise
nor the power to hold consultations with
stakeholders or experts to decide the
direction of economic policy. A court may be
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
inept in laying down a detailed procedure for
exercise of the power of withdrawal or
modification by a successful Resolution
Applicant without impacting the other
procedural steps and the timelines under the
IBC which are sacrosanct. Thus, judicial
restraint must be exercised while intervening
in a law governing substantive outcomes
through procedure, such as the IBC. In this
case, if Resolution Applicants are permitted
to seek modifications after subsequent
negotiations or a withdrawal after a
submission of a Resolution Plan to the
Adjudicating Authority as a matter of law, it
would dictate the commercial wisdom and
bargaining strategies of all prospective
Resolution PART J Applicants who are
seeking to participate in the process and the
successful Resolution Applicants who may
wish to negotiate a better deal, owing to
myriad factors that are peculiar to their own
case. The broader legitimacy of this course of
action can be decided by the legislature
alone, since any other course of action would
result in a flurry of litigation which would
cause the delay that the IBC seeks to
disavow."
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
90. In the background of the Hon'ble Apex Court in the
case of Berger Paints (India) Limited vs.
Commissioner of Income Tax [(2017) 13 SCC 726] as
to certain extent explained the word or expression
'premium' in the background of Income Tax Act, 1961
which would be a benefit and same is noted hereinbelow:
"16.The Division Bench of the High Court in
the impugned order examined the question
lucidly. The learned Judge T.S. Thakur, J. (as
His Lordship then was and later became CJI)
speaking for the Bench held as under:
"7. A careful reading of the above would
show that in the case of an Indian company
like the appellant, the aggregate amount of
expenditure cannot exceed 2.5% of the capital
employed in the business of the Company.
The crucial question, therefore, is as to what
is meant by capital employed in the business
of the Company for it is the amount that
represents such capital that would
determined the upper limit to which the
amount of allowable deduction can go. The
expression has been given a clear and
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
exhaustive definition in the explanation to
sub-section (3). It reads as:
"(b)
.....................................................................
.............................."
"8. The above clearly shows that capital em-
ployed in the business of the company is the
aggregate of three distinct components,
namely, share capital, debentures and long
term borrowings as on the dates relevant un-
der sub-clauses(i) and (ii) of Clause(b) of the
explanation extracted above. The term 'long
term borrowing' has been defined in clause
(c) to the explanation. It is nobody's else that
the premium collected by the Company on the
issue of shares was a long term borrowing ei-
ther in fact or by a fiction of law. It is also no-
body's case that the premium collected by the
Company was anywhere near or akin to a
debenture. What was all the same argued by
the counsel for the appellant was that pre-
mium was a part of the share capital and had
therefore to be reckoned as 'capital employed
in the business of the company'. There is, in
our view, no merit in that contention. The Tri-
bunal has pointed out that the share capital of
the Company as borne out by its audited ac-
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
counts is limited to Rs.7,88,19679/-. The com-
pany's accounts do not show the reserve and
surplus of Rs.19,66,36,734/- as a part of its is-
sued, subscribed and paid up capital. It is
true that the surplus amount of
Rs.19,66,36,734/- is taken as part of share
holders fund but the same was not a part of
the issued, subscribed and paid up capital of
the Company. Explanation to Section 35D(3)
of the Act does not include the reserve and
surplus of the Company as a part of the capi-
tal employed in the business of the Company.
If the intention was that any amount other
than the share capital, debentures and long
term borrowings of the Company ought to be
treated as part of the capital employed in the
business of the company, the Parliament
would have suitably provided for the same. So
long as that has not been done and so long as
the capital employed in the business of the
Company is restricted to the issued share
capital, debentures and long term borrow-
ings, there is no room for holding that the
premium, if any, collected by the Company on
the issue of its share capital would also con-
stitute a part of the capital employed in the
business of the Company for purposes of de-
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
duction under Section 35D. The Tribunal was,
in that view of the matter, perfectly justified
in allowing the appeal filed by the Revenue
and restoring the order passed by the Assess-
ing Officer."
17. We are in complete agreement with the
view taken by the High Court quoted supra
as, in our considered opinion, the well-rea-
soned judgment/order of the High Court cor-
rectly explains the true meaning of the ex-
pression employed in sub-section 3(b) of Sec-
tion 35D read with Explanation (b) quoted
above, calling no interference in the appeals.
18. In our considered opinion also, the "pre-
mium amount" collected by the Company on
its subscribed issued share capital is not and
cannot be said to be the part of "capital em-
ployed in the business of the Company" for
the purpose of Section 35D(3)(b) of the Act
and hence the appellant-Company was rightly
held not entitled to claim any deduction in re-
lation to the amount received towards pre-
mium from its various shareholders on the is-
sued shares of the Company.
19. This we say for more than one reason:
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
19.1 First, if the intention of the Legisla-
ture were to treat the amount of "premium"
collected by the Company from its sharehold-
ers while issuing the shares to be the part of
"capital employed in the business of the com-
pany", then it would have been specifically
said so in the Explanation(b) of sub-section(3)
of Section 35D of the Act. It was, however,
not said.
21. This Court in speaking through the
learned Judge J.C. Shah, J. (as His Lordship
then was and later became CJI) after examin-
ing the issue in the context of Para D read
with its Explanation held that "share premium
account" was liable to be included in the paid
up capital for the purposes of computing re-
bate. One of the reasons to allow such inclu-
sion with the paid up capital was that such in-
clusion was permitted by the specific words in
the Explanation. Such was, however, not the
case here."
91. In the aforesaid analysis, we are of the considered
view that the word 'premium' attached to the share
cannot be read as part and parcel of Article 20(d)(i) as
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
sought to be canvassed since it would be doing violence
to the provisions of the Act and reading something into
the provision which is not to be found in the statute and
as the legislature has not contemplated of including the
expression 'premium' and has restricted to the 'face
value' alone as indicated in clause (c) to Explanation III of
sub-article (d) of Article 20 of the Gujarat Stamp Act.
92. In view of the aforestated discussions and finding
recorded by us, we proceed to answer the questions
referred as under :
Sr. Stamp Question Answer
No Reference referred for
No. adjudication
1 2/2020 Que. No.1 In view of explanation III (c) to
& Article 20(d) of Schedule I of
1/2021 the Gujarat Stamp Act, 1958,
the face value of the shares
issued is to be considered as
its market value.
2 3/2020 Que. No.2 Yes, the respondents have
erred in law in not giving strict
and literal interpretation to the
Gujarat Stamp Act, 1958 and
have attempted to read words
into the entry No.20(d)(1)
which is not expressly found in
the statute.
3 1/2021 Que. No.2 The amount of premium even
if any cannot form part of face
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
value of share in view of
deeming fiction provided
under clause (c) of the
Explanation III to Article 20(d).
4 2/2020 Que.Nos.2 Treating the fair value of the
& and 5 share of transferee company
7/2020 issued under the scheme
approved by the Company
Court /NCLT where neither of
the companies are listed or
listed but not quoted for
trading on a stock exchange as
consideration under Article
20(d)(1) of Schedule-I would
not be ultra vires and illegal
and it would be intra-vires and
in consonance with
Explanation-III as it would
indicate recurring or
calculating the market value of
share for the purpose of clause
(d).
5 3/2020 Que.No.1 Yes, the respondents erred in
holding the share premium
amount to be the part of
market value of shares for the
purpose of computation of
stamp duty under clause (c) of
Explanation III to Article 20(d)
of Schedule-I of the Stamp Act,
1958, as it does not provide for
adding the word 'premium'
into 'market value of share',
which is otherwise defined in
explanation to Article 18 to
include the amount of
premium.
Revenue Authority erred in
placing reliance upon the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
judgment dated 20.12.2019
passed in Special Civil
Application No.14597 of 2019
when same has been stayed by
order dated 10.02.2020 passed
in Letters Patent Appeal
No.125 of 2017.
7 3/2020 Que.No.2 Yes, the respondents erred in
not appreciating the fact that
fiscal legislation like Gujarat
Stamp Act, 1958, are required
to give strict and literal
interpretation and there being
no scope of reading something
into the entry which is not
expressly mentioned in the
statute.
93. In S.R.Nos.4, 5 and 6 of 2020, question Nos.1 and 4
which are common in these three references have been
raised. For the purpose of convenience and immediate
reference, they are extracted hereinbelow:
"Whether an order of the High Court under
Section 394 of the Companies Act, 1956,
sanctioning a single composite scheme of
arrangement, is not a single indivisible
instrument that is not comprising or relating
to several distinct matters or distinct
transactions as contemplated by Section 5 of
the Stamp Act and not subject to levy as such,
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
considering the fact that the instrument
covered under Article 20(d) of Schedule-I to
the Stamp Act would be the order of the High
Court and not the scheme sanctioned by such
order?
94. Brief facts of each case are narrated hereinbelow for
the purpose of convenience.
RE : STAMP REFERENCE NO.4 OF 2020 :
95. A composite scheme of arrangement between Adani
Gas Holdings Limited (AGHL), Adani Gas Limited (AGL)
and Adani Enterprises Limited (AEL) was sanctioned by
NCLT on 03.08.2018. Pursuant to the said scheme being
sanctioned AGHL stood amalgamated with AGL and the
gas sourcing and distribution business of AEL was
demerged and vested into AGL. The Collector held that
pursuant to the composite scheme approved by NCLT
demerging has taken place and as such the instrument is
covered under Section 5 of the Stamp Act. It is the stand
of the applicant that the instrument is an order
sanctioning a single composite scheme and therefore
cannot be treated as an instrument comprising of
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
separate and distinct matters or transactions covered
under Section 5. While denying the market value of
shares has been determined by the authorities, stamp
duty is required to be calculated on the aggregate of the
market value of all the shares issued and in view of the
cap prescribed under Article 20(d), the total stamp duty
payable is only Rs.25 Crores and not Rs.2,33,65,000/-
plus Rs.27,33,65,000/-.
RE : STAMP REFERENCE NO.5 OF 2020 :
96. The Company Court of High Court of Gujarat
sanctioned a composite scheme of arrangement between
(i) Adani Enterprises Limited (AEL), (ii) Adani Port and
Special Economic Zone Limited (APSEZ), (iii) Adani
Power Limited (APL), (iv) Adani Transmission Limited
(ATL) and (v) Adani Mining Private Limited (AMPL).
Pursuant to the sanction of the said scheme (i) the port
undertaking of AEL was transferred to APSEZ, (ii) power
undertaking of AEL was transferred to APL, (iii)
transmission undertaking of AEL was transferred to ATL
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
and (iv) AMPL was amalgamated with AEL, by treating
the said instrument as covered under Section 5 of the
Gujarat Stamp Act, 1958. On account of delay in
providing the details, proceedings under Section 33 were
initiated for levy of penalty under Section 39(1)(b) and by
order dated 25.07.2018, stamp duty of Rs.75 Crores and
penalty of Rs.3 Lakh has been demanded.
RE : STAMP REFERENCE NO.6 OF 2020 :
97. A scheme of arrangement was sanctioned on
26.09.2014 by this Court whereby the respective
transmission divisions of (i) Adani Power Limited (APL);
(ii) Adani Power Maharashtra Limited were to demerge
from the said companies and were to stand transfer to
Adani Transmission (India) Limited (ATIL). Since there
were typographical error in the order passed, speaking to
minutes was filed by ATIL which came to allowed on
08.10.2014 and thereafter Company Application No.294
of 2014 came to be filed by ATIL seeking modification of
the order dated 26.09.2014 seeking permission to lodge
the copy of the order for adjudication for a period of 60
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
days from the effective date instead of 60 days from the
date of order dated 26.09.2014. Said application came to
be allowed on 25.11.2014 and thereby the effect under
the sanctioned scheme occurred on 12.01.2015. The
Collector intimated the stamp duty payable on the
instrument at Rs.27,80,50,000/- on the ground that the
instrument is covered under Section 5 of the Gujarat
Stamp Act and an order came to be passed on 25.07.2018
demanding stamp duty of Rs.27,80,50,000/- and penalty
of Rs.1,00,000/-.
98. Since there are common questions framed in Stamp
Reference Nos.4 to 7 of 2020, those questions are
required to be answered as tabulated hereinbelow :
Sr. Stamp Question of law Answer
No. Reference
No.
1 4/2020 Whether an order of In S.R.No.5 of 2020,
the High Court the records would
under Section 394 of disclose that by a
the Companies Act, common order dated
2 5/2020 1956, sanctioning a 07.05.2015, the
single composite composite scheme of
scheme of arrangement under
arrangement is not a Section 391 to 394
3 6/2020 single indivisible of the Companies
instrument that is Act, 1956, came to
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
not comprising or be sanctioned
relating to several whereunder (i) Port
distinct matters or undertaking of the
distinct transactions applicant was
as contemplated by transferred to Adani
Section 5 of the Port and Special
Stamp Act and not Economic Zone
subject to levy as Limited (APSEZ), (ii)
such, considering power undertaking
the fact that the of applicant was
instrument covered transferred to Adani
under Article 20(d) Power Limited
of the Schedule-I to (APL), (iii)
the Stamp Act would transmission
be the order of the undertaking of the
High Court and not applicant was
the scheme transferred to Adani
sanctioned by such Transmission
order? Limited (ATL) and
(iv) Adani Mining
Private Limited
(AMPL) was
amalgamated with
Adani Enterprises
Limited (AEL). The
revenue has raised
demand for payment
of stamp duty of
Rs.75 Crores.
99. As already noticed hereinabove, similar orders have
been passed by the Company Court - National Company
Law Tribunal approving the scheme of amalgamation -
arrangement even in respect of Stamp Reference Cases 4
of 2020, 6 of 2020 and 7 of 2020.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
100. Mr.Mihir Joshi, learned Senior Counsel appearing
for Mr.Sandeep Singhi for M/s.Singhi and Company for
the applicant in Stamp Reference Nos.4 to 7 of 2020 has
drawn the attention of the Court to the composite scheme
of arrangement approved or sanctioned by the Company
Court (High Court of Gujarat) under Section 394 of the
Companies Act, 1956, to contend that under Article 20(d)
of Schedule-I of the Gujarat Stamp Act, the stamp duty
payable on the said instrument is subject to a maximum
of Rs.25 Crores. He has further contended that
undisputedly the scheme which has been sanctioned
would fall within the definition of instrument as defined
under Section 2(l) of the Stamp Act and the said
instrument being conveyance as defined under Section
2(g) of the Stamp Act, the duty payable as indicated in
corresponding column of Article 20(d) would be maximum
of Rs.25 Crores and the Collector was in error in
construing the instrument sanctioned as separate
instrument and thereby levied Rs.25 Crores on each of
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
the company, by ignoring the fact that it is a single
composite scheme and the instrument cannot be treated
as distinct transaction. He would submit that in the case
of S.R.No.5 of 2020, no immovable property in the State
of Gujarat has been transferred to Adani Port and Special
Economic Zone Limited (APSEZ) and it is only the shares
issued by APSEZ to the shareholders of the applicant and
both being listed companies, the market value of the
shares issued by APSEZ to the shareholders of the
applicant and calculated the stamp duty payable thereon
on the aggregate value of the shares and capping it to
Rs.25 Crores in the same manner under the same
composite instrument the transfer of power undertaking
of AEL to APL, transmission undertaking of AEL being
transferred to ATL and AMPL getting amalgamated with
AEL are treated as separate entities and according to
Mr.Mihir Joshi, learned Senior Counsel, the Collector
committed an error in treating such transaction as
separate and distinct transaction and raising the demand
of Rs.75 Crores in all in S.R.No.5 of 2020.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
101. Mr.Mihir Joshi, learned Senior Counsel would also
contend that every order passed by the High Court under
Section 394 of the Companies Act would be considered as
an instrument in view of Section 2(g)(iv) of the Stamp Act
and it is a conveyance and the sanctioned scheme is one
and separate and distinct orders have not been passed,
such instrument cannot be treated as separate
transactions for the purpose of calculation of stamp duty.
The applicant accordingly is required to pay one stamp
duty to the extent of Rs.25 Crores in view of Article 20(d)
of Schedule-I of the Stamp Act.
102. He would submit that mere reconstruction having
taken place of the entities which are substantially
managed by the same management, though are separate
legal entities, but instrument of conveyance cannot be
construed as separate and distinct transaction. By
referring to the composite scheme of arrangement to
contend that business of each legal entity may be
separate but when they are handled and managed
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
substantially by the same person, same arrangement and
reconstruction inter-se cannot be segregated by the
authority particularly when the single composite
order/instrument has been accorded sanction, it is not
open for the authority to bifurcate and treat the said
transaction as separate and distinct. It has been further
stated that this reconstruction inter-se has been
undertaken substantially by the very same person with
respect to the very same business and with concurrence
of major shareholders and when they be so, the view
taken by the authority is erroneous and a serious error
has been committed in taking aid to Section 5 of the Act.
In support of his submission, he has relied upon the
following propositions of law :
"(a) In the case of In re South African
Supply and Cold Storage Company Wild
v. Same Company reported in (1904) 2 Ch
268.
(b) In the case of Saraswati Industrial
Syndicate Ltd. v. Commissioner of
Income Tax reported in 1990 (Supp) SCC
675.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
(c ) In the case of In re Larsen and
Toubro Limited reported in (2004) 121
Comp. Case 523.
(d) In the case of Member, Board of
Revenue v. Arthur Paul Benthall reported
in AIR 1956 SC 35.
(e) In the case of Bowen v. Ashley
reported in 127 ER 467.
(f) In the case of Goodson v. Forbes
reported in 128 ER 999.
(g) In the case of Allen v. Morrison
reported in 108 ER 1036.
(h) In the case of Chief Controlling
Revenue Authority v. Coastal Gujarat
Power Limited & Ors ., reported in (2015)
10 SCC 700.
(i) In the case of the Commissioner of
Income-Tax, Patiala v. M/s. Shahzada
Nand & Sons & Ors ., reported in AIR
1966 SC 1342.
(j) In the case of Federation of A.P.
Chambers of Commerce & Industry and
Others v. State of A.P. and Ors ., reported
in (2000) 6 SCC 550.
(k) In the case of District Registrar and
Collector, Hyderabad and Anr ., v. Canara
Bank & Ors ., reported in (2005) 1 SCC
496."
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
103. Mr.Mihir Joshi, learned Senior Counsel appearing
for the applicant in this case would contend that the
instrument which is sought to be projected as separate
transaction and as such stamp duty of Rs.25 Crores on
each transaction being demanded is contrary to the
statutory provisions namely to Article 20(d) of the Stamp
Act. He would submit that Section 394(1)(a) of the
Companies Act refers to arrangement for reconstruction
and in all these cases, the transaction involved being
reconstruction. He would contend that though companies
are separate legal entities, but substantially they are one
and the same. He would contend that the word used
"companies" in Section 2(g)(iv) is plural and one common
order is passed in all these cases. He would submit that
the statutory definition of the expression 'instrument' as
defined under Section 2(l) it is only the order of the Court
sanctioning the scheme it becomes an instrument and
partakes the character of conveyance as defined under
Section 2(g). he would submit that the order of Company
Court - NCLT cannot be separated or segregated and said
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
orders are inseperable and he would contend that Section
394 of the Companies Act would come to his rescue as
the words of reconstruction of companies is used in
plural. He would submit that it is on account of this
reconstruction of companies covering more than one
companies under the instrument that is taking place
which is also by the same management or in other words,
the business are being restructured and there being no
separate transaction like loan transaction, sale
transaction or any other transaction as was evident in the
judgments relied upon by the State, the instrument of the
scheme of arrangement or amalgamation cannot be
brought under Section 5 of the Gujarat Stamp Act. Hence,
he prays for the question of law being answered in favour
of the applicant and against the revenue.
104. Whereas Ms.Manisha Lavkumar, learned
Government Pleader appearing for the State would
support the orders of the revenue. She would contend in
terms of Section 2(g)(iv) of the Gujarat Stamp Act, an
order has been passed by the High Court under Section
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
394 of the Companies Act, 1956, or under Section 232 of
the Companies Act, 2013/document is considered as
conveyance that is chargeable with duty under Article
20(d). She would submit that every order made by the
Company Court or NCLT as the case may be in respect of
a scheme for reconstruction of the company or companies
involving merger or amalgamation of one or more
companies is chargeable for stamp duty under Article
20(d) of Schedule-I of the Gujarat Stamp Act. She would
submit that in view of the words or expression used in
Section 5 of the Act namely "distinct matters" or "distinct
transactions", the stamp duty that would be chargeable
as if separate instruments are executed for separate set
of transactions. She would submit that if the single
instrument is giving rise to multiple and distinct
transactions, Section 5 will apply. When the instrument
comprises of more than one transactions and is used as a
tool to give effect to multiple transactions by executing a
single instrument, in order to attract the application of
Section 5, she would contend that the instrument has to
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
be looked into or in other words, the entire document
needs to be examined and in the instant case, the
documents produced by the applicant namely the
instrument disclosing that it involves more than one
transaction, such transactions are to be treated as
distinct transactions and hence, they are liable to be
independently charged for stamp duty.
105. Having heard the learned advocates appearing for
the parties and on perusal of the records, we are of the
considered view that it would be apt and necessary to
extract certain provisions of the Gujarat Stamp Act, 1958
and the provisions of the Companies Act, 1956 and also
the provisions of the Companies Act, 2013. They are as
follows :
The Companies Act, 1956 :
"391. POWER TO COMPROMISE OR MAKE
ARRANGEMENTS WITH CREDITORS AND
MEMBERS -
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
(1) Where a compromise or arrangement is
proposed - (a) between a company and its
creditors or any class of them ; or (b) between
a company and its members or any class of
them ; the [Tribunal] may, on the application of
the company or of any creditor or member of
the company, or, in the case of a company
which is being wound up, of the liquidator,
order a meeting of the creditors or class of
creditors, or of the members or class of
members, as the case may be, to be called,
held and conducted in such manner as the
[Tribunal] directs.
(2) If a majority in number representing three-
fourths in value of the creditors, or class of
creditors, or members, or class of members, as
the case may be, present and voting either in
person or, where proxies are allowed under the
rules made under section 643, by proxy, at the
meeting, agree to any compromise or
arrangement, the compromise or arrangement
shall, if sanctioned by the 1 [Tribunal], be
binding on all the creditors, all the creditors of
the class, all the members, or all the members
of the class, as the case may be, and also on
the company, or in the case of a company
which is being wound up, on the liquidator and
contributories of the company :
Provided that no order sanctioning any
compromise or arrangement shall be made by
the [Tribunal] unless the [Tribunal] is satisfied
that the company or any other person by whom
an application has been made under subsection
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
(1) has disclosed to the [Tribunal], by affidavit
or otherwise, all material facts relating to the
company, such as the latest financial position
of the company, the latest auditor's report on
the accounts of the company, the pendency of
any investigation proceedings in relation to the
company under sections 235 to 251, and the
like.
(3) An order made by the [Tribunal] under sub-
section (2) shall have no effect until a certified
copy of the order has been filed with the
Registrar.
(4) A copy of every such order shall be annexed
to every copy of the memorandum of the
company issued after the certified copy of the
order has been filed as aforesaid, or in the case
of a company not having a memorandum, to
every copy so issued of the instrument
constituting or defining the constitution of the
company.
(5) If default is made in complying with sub-
section (4), the company, and every officer of
the company who is in default, shall be
punishable with fine which may extend to [one
hundred] rupees for each copy in respect of
which default is made.
(6) The [Tribunal] may, at any time after an
application has been made to it under this
section, stay the commencement or
continuation of any suit or proceeding against
the company on such terms as the [Tribunal]
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
thinks fit, until the application is finally
disposed of.
(7) [***]
392. POWER OF TRIBUNAL TO ENFORCE
COMPROMISES AND ARRANGEMENTS.
(1) Where the Tribunal makes an order under
section 391 sanctioning a compromise or an
arrangement in respect of a company, it - (a)
shall have power to supervise the carrying out
of the compromise or an arrangement ; and (b)
may, at the time of making such order or at any
time thereafter, give such directions in regard
to any matter or make such modifications in
the compromise or arrangement as it may
consider necessary for the proper working of
the compromise or arrangement.
(2) If the Tribunal aforesaid is satisfied that a
compromise or an arrangement sanctioned
under section 391 cannot be worked
satisfactorily with or without modifications, it
may, either on its own motion or on the
application of any person interested in the
affairs of the company, make an order winding
up the company, and such an order shall be
deemed to be an order made under section 433
of this Act.
(3) The provisions of this section shall, so far as
may be, also apply to a company in respect of
which an order has been made before the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
commencement the companies (Amendment)
Act, 2001 sanctioning a compromise or an
arrangement.]
393. INFORMATION AS TO
COMPROMISES OR ARRANGEMENTS
WITH CREDITORS AND MEMBERS -
(1) Where a meeting of creditors or any class of
creditors, or of members or any class of
members, is called under section 391, - (a) with
every notice calling the meeting which is sent
to a creditor or member, there shall be sent
also a statement setting forth the terms of the
compromise or arrangement and explaining its
effect ; and in particular, stating any material
interests of the directors, managing director
[***] or manager of the company, whether in
their capacity as such or as members or
creditors of the company or otherwise, and the
effect on those interests, of the compromise or
arrangement, if, and insofar as, it is different
from the effect on the like interests of other
persons ; and (b) in every notice calling the
meeting which is given by advertisement, there
shall be included either such a statement as
aforesaid or a notification of the place at which
and the manner in which creditors or members
entitled to attend the meeting may obtain
copies of such a statement as aforesaid.
(2) Where the compromise or arrangement
affects the rights of debenture holders of the
company, the said statement shall give the like
information and explanation as respects the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
trustees of any deed for securing the issue of
the debentures as it is required to give as
respects the company's directors.
(3) Where a notice given by advertisement
includes a notification that copies of a
statement setting forth the terms of the
compromise or arrangement proposed and
explaining its effect can be obtained by
creditors or members entitled to attend the
meeting, every creditor or member so entitled
shall, on making an application in the manner
indicated by the notice, be furnished by the
company, free of charge, with a copy of the
statement.
(4) Where default is made in complying with
any of the requirements of this section, the
company, and every officer of the company who
is in default, shall be punishable with fine
which may extend to [fifty] thousand rupees ;
and for the purpose of this sub-section any
liquidator of the company and any trustee of a
deed for securing the issue of debentures of
the company shall be deemed to be an officer
of the company : Provided that a person shall
not be punishable under this sub-section if he
shows that the default was due to the refusal of
any other person, being a director, managing
director, [***] manager or trustees for
debenture holders, to supply the necessary
particulars as to his material interests.
(5) Every director, managing director, [***] or
manager of the company, and every trustee for
debenture holders of the company, shall give
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
notice to the company of such matters relating
to himself as may be necessary for the
purposes of this section ; and if he fails to do
so, he shall be punishable with fine which may
extend to [five thousand] rupees.
394. PROVISIONS FOR FACILITATING
RECONSTRUCTION AND AMALGAMATION
OF COMPANIES
(1) Where an application is made to the
[Tribunal] under section 391 for the
sanctioning of a compromise or arrangement
proposed between a company and any such
persons as are mentioned in that section, and it
is shown to the [Tribunal] - (a) that the
compromise or arrangement has been
proposed for the purposes of, or in connection
with, a scheme for the reconstruction of any
company or companies, or the amalgamation of
any two or more companies ; and (b) that
under the scheme the whole or any part of the
undertaking, property or liabilities of any
company concerned in the scheme (in this
section referred to as a "transferor-company")
is to be transferred to another company (in this
section referred to as "the transferee-
company") ; the 1 [Tribunal] may, either by the
order sanctioning the compromise or
arrangement or by a subsequent order, make
provision for all or any of the following matters
: (i) the transfer to the transferee-company of
the whole or any part of the undertaking,
property or liabilities of any transferor-
company ; (ii) the allotment or appropriation by
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
the transferee-company of any shares,
debentures, policies, or other like interests in
that company which, under the compromise or
arrangement, are to be allotted or
appropriated by that company to or for any
person ; (iii) the continuation by or against the
transferee-company of any legal proceedings
pending by or against any transferor-company ;
(iv) the dissolution, without winding up, of any
transferor-company ; (v) the provision to be
made for any persons who, within such time
and in such manner as the [Tribunal] directs,
dissent from the compromise or arrangement ;
and (vi) such incidental, consequential and
supplemental matters as are necessary to
secure that the reconstruction or
amalgamation shall be fully and effectively
carried out :
Provided that no compromise or arrangement
proposed for the purposes of, or in connection
with, a scheme for the amalgamation of a
company, which is being wound up, with any
other company or companies, shall be
sanctioned by the [Tribunal] unless the
[Tribunal] has received a report from [***] the
Registrar that the affairs of the company have
not been conducted in a manner prejudicial to
the interests of its members or to public
interest : Provided further that no order for the
dissolution of any transferor-company under
clause (iv) shall be made by the [Tribunal]
unless the Official Liquidator has, on scrutiny
of the books and papers of the company, made
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
a report to the [Tribunal] that the affairs of the
company have not been conducted in a manner
prejudicial to the interests of its members or to
public interest.
(2) Where an order under this section provides
for the transfer of any property or liabilities,
then, by virtue of the order, that property shall
be transferred to and vest in, and those
liabilities shall be transferred to and become
the liabilities of, the transferee-company ; and
in the case of any property, if the order so
directs, freed from any charge which is, by
virtue of the compromise or arrangement, to
cease to have effect.
(3) Within thirty days after the making of an
order under this section, every company in
relation to which the order is made shall cause
a certified copy thereof to be filed with the
Registrar for registration. If default is made in
complying with this sub-section, the company,
and every officer of the company who is in
default, shall be punishable with fine which
may extend to [five hundred] rupees.
(4) In this section - (a) "property" includes
property rights and powers of every
description ; and "liabilities" includes duties of
every description ; and (b) "transferee-
company" does not include any company other
than a company within the meaning of this
Act ; but "transferor-company" includes any
body corporate, whether a company within the
meaning of this Act or not."
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
106. A perusal of Section 2(g) would indicate that for
Article 20(d) being attracted, the instrument will have to
satisfy the definition of the word conveyance. Clause (iv)
of Section 2(g) would indicate that every order made by
the NCLT under Section 232 of the Companies Act in
respect of a scheme for reconstruction of the companies
or companies involving merger or amalgamation of any 2
or more companies, it would be a deed of conveyance. A
plain reading of Section 5 of the Stamp Act would
indicate that if the single instrument is giving rise to
multiple and distinct transactions, then on such distinct
transactions or distinct matters, the stamp duty would be
charged as if separate instruments are executed for
separate set of transactions. In other words, the
document or instrument will have to be looked into for
the said purpose.
107. The Hon'ble Apex Court in the case of Board of
Revenue vs. Arthur Paul Benthall, reported in AIR
1956 SC 35 has held that :
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
"3. The point for decision in this appeal
is as to the meaning to be given to the words
"distinct matters" in section 5. The contention
of the respondent which found favour with
the majority of the learned Judges in the
court below is that the word "matters"
in section 5 is synonymous with the word
"description" occurring in section 6, and that
they both refer to the several categories of
instruments which are set out in the
Schedule. The argument in support of this
con- tention is this: Section 5 lays down that
the duty payable when the instrument
comprises or relates to distinct matters is the
aggregate of what would be payable on
separate instruments relating to each of
these matters. An instrument would be
chargeable under section 3 only if it fell
within one of the categories mentioned in the
Schedule. Therefore, what is contemplated
by section 5 is a combination in one
document of different categories of
instruments such as sale and mortgage, sale
and lease or mortgage and lease and the like,
But when the category is one and the same,
then section 5 has no application, and as, in
the present case, the instrument in question
is a power-of- attorney, it would fall
under article 48 (a) in whatever capacity it
was executed, and there being only one
category, there are no distinct matters
within section 5.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
4. We are unable to accept the
contention that the word "matter" in section
5 was intended to convey the same meaning
as the word "description" in section 6. In its
popular sense, the expression "distinct
matters" would connote something different
from distinct "categories". Two transactions
might be of the same description, but all the
same, they might be distinct. If A sells Black-
acre to X and mortgages White-acre to Y, the
transactions fall under different categories,
and they are also distinct matters. But if A
mortgages Black-acre to X and mortgages
Whiteacre to Y, the two transactions fall
under the same category, but they would
certainly be distinct matters. If the intention
of the legislature was that the expression
'distinct matters' in section 5 should be
understood not in its popular sense but
narrowly as meaning different categories in
the Schedule, nothing would have been easier
than to say so. When two words of different
import are used in a statute in two
consecutive provisions, it would be difficult to
maintain that they are used in the same
sense, and the conclusion must follow that
the expression "distinct mat- ters" in section
5 and "descriptions" in section 6 have
different connotations.
5. It is urged against this conclusion
that if the word "matters" in section 5 is
construed as meaning anything other than
"categories" or in the phraseology of section
6, "descriptions" mentioned in the Schedule,
then there could be no conflict between the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
two sections, and the clause in section 6 that
it is "subject to the provision of the last
preceding section" would be meaningless and
useless. We see no force in this contention.
Though the topics covered by sections
5 and 6 are different, it is not difficult to
conceive of instruments which might raise
questions falling to be determined under both
the sections. Thus, if a partnership carried on
by members of a family is wound up and the
deed of dissolution effects also a partition of
the family properties as in Secretary, Board
of Revenue v. Alagappa Chettiar(1), the
instrument can be viewed both as a deed of
dissolution and a deed of partition, and
under section 6, the duty payable will be the
higher duty as on an instrument of partition.
But supposing by that very deed one of the
members creates a charge or mortgage over
the properties allotted to his share in favour
of another member for moneys borrowed by
him for his own purposes, that would be a
distinct matter which would attract section 5.
Now, but for the saving clause, a contention
might be advanced that sections 5 and 6 are
mutually exclusive, and as the in- strument
falls within section 6, the only duty payable
thereon is as on an instrument of partition
and no more. The purpose of the clause
in section 6 is to repel any such contention.
6. Considerable stress was laid by Mr.
Chaudhury on the scheme of the Act as
embodied in sections 3 to 6 as strongly
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
supporting the view that 'matters' in section
5 meant the same thing as 'description'
in section 6. He argued that under section
3 the duty was laid not on all instruments but
on those which were of the descriptions
mentioned in the Schedule, that section
4 enacted a special provision with reference
to three of the categories mentioned in the
Schedule, sale (conveyance), mortgage and
settlement, that if they were completed in
more than one instrument, not all of them
were liable for the duty specified in the
Schedule, but only one of them called the
principal document, and that section
6 provided that when the instrument fell
under two or more of the categories in the
Schedule, the duty payable was the highest
payable on any one of them, that thus the
categories in the schedule were the pivot on
which the entire scheme revolved, and that in
construing the section in the light of that
scheme, the expression "distinct matter"
must in the setting be construed as distinct
categories. To construe "distinct matters" as
something different from "distinct categories"
would be, it was argued, to introduce a
concept foreign to the scheme of the
enactment.
7. The error in this argument lies in
thinking that the object and scope of sections
4 to 6 are the same, which in fact they are
not. Section 4 deals with a single transaction
completed in several instruments, and section
6 with a single transaction which might be
viewed as falling under more than one
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
category, whereas section 5 applies only
when the instrument comprises more than
one transaction, and it is immaterial for this
purpose whether those transactions are of
the same category or of different categories.
The topics dealt with in the three sections
being thus different, no useful purpose will be
served by referring to section 4 or section
6 for determining the scope of section 5 or
for construing its terms. It is not without
significance that the legislature has used
three different words in relation to the three
sections, 'transaction' in section 4, matter'
in section 5, and 'description' in section 6.
12. There is no provision in the statute
law of this country similar to the above, and it
is significant that it assumes that a power of
attorney might consist of distinct matters by
reason of the fact that there are several
donors or donees mentioned in it, or that it
relates to more than one matter."
108. The Hon'ble Apex Court in the case of Government
of Uttar Pradesh vs. Raja Mohammad Amir Ahmed
Khan, reported in AIR 1961 SC 787 has held that :
"(5) XXXX The language in regard to
executed and unstamped documents is no
different and the powers and duties of the
Collector in regard to those instruments are
the same, that is, when he is asked to give his
opinion, he has to determine the duty with
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
which, in his judgment, the instrument is
chargeable and there his duties and powers
in regard to that matter end. Then follows s.
32. Under that section the Collector has to
certify by endorsement on the instrument
brought to him under s. 31 that full duty has
been paid, if the instrument is duly stamped,
or it is unstamped and the duty is made up, or
it is not chargeable to duty. Under that
section the endorsement can be made only if
the instrument is presented within a month of
its execution. But what happens when the
instrument has been executed more than a
month before its being brought before the
Collector? Section 31 places no limitation in
regard to the time and there is no reason why
any time limit should be imposed in regard to
seeking of opinion as to the duty payable.
(6) Chapter IV of the Act which deals with
instruments not duly stamped and which
contains as. 33 to 48, provides for
impounding of documents, how the
impounded documents are to be dealt with,
Collector's powers to stamp instruments
impounded and how the duties and penalties
are to be recovered. It would be an
extraordinary position if a person seeking the
advice of the Collector and not wanting to
rely upon an instrument as evidence of any
fact to be proved nor wanting to do any
further act in regard to the instrument so as
to effectuate its operation should also be
liable to the penalties which unstamped
instruments used as above might involve. The
scheme of the Act shows that where a person
is simply seeking the opinion of the Collector
as to the proper duty in regard to an
instrument, he approaches him under s. 31. If
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
it is properly stamped and the person
executing the document wants to proceed
with effectuating the document or using it for
the purposes of evidence, he is to make up
the duty and under s. 32 the Collector will
then make an endorsement and the
instrument will be treated as if it was duly
stamped from the very beginning. But if he
does not want to proceed any further than
seeking the determination of the duty payable
then no consequence will follow and an
executed document is in the same position as
an instrument which is unexecuted and
unstamped and after the determination of the
duty the Collector becomes functus officio
and the provisions of s. 33 have no
application. The provisions of that section are
a subsequent stage when something more
than mere asking of the opinion of the
Collector is to be done."
109. The Hon'ble Apex Court in the case of Chief
Controlling Revenue Authority vs. Coastal Gujarat
Power Limited and others, reported in (2015) 10
SCC 700, has held as under :
"28. From the facts discussed and
narrated hereinabove, it is manifest that the
instrument of mortgage came into existence
only after separate loan agreements were
executed by the borrower with the lenders
with regard to separate loan advanced by
those lenders to the respondent borrower.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
The mortgage deed which recites at length as
to how and under what circumstances
property was mortgaged with the security
trustee for and on behalf of lender bank.
29. When several matters are contained in
one instrument, what stamp is payable
thereon in England has been dealt with and
Halsbury's Law of England 4th Edition
volume 44 paragraph 613 at page 399 is
quoted herein below:-
"613. Instrument relating to several matters.
Except where there is statutory provision to
the contrary, an instrument containing or
relating to several distinct matters is to be
separately charged, as if it were a separate
instrument, with stamp duty in respect of
each of the matters, and an instrument made
for any consideration in respect of which it is
chargeable with ad valorem duty, and also for
any further or other valuable consideration, is
separately chargeable, as if it were a
separate instrument, in respect of each of the
consideration."
30. Coming to the provisions contained in
the Stamp Act, we have to see as to whether
the provision of Section 5 is ancillary
to Section 4 or a separate and distinct
provision. For better appreciation Sections 4,
5 and 6 of the Gujarat Stamp Act is
reproduced herein below:-
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
"Section 4- Several instruments used in
single transaction of sale, mortgage or
settlement.
(1) Where, in the case of any sale, mortgage
or settlement, several instruments are
employed for completing the transaction, the
principle instrument only shall be chargeable
with the duty prescribed in Schedule I for the
conveyance, mortgage or settlement, and
each of the other instruments shall be
chargeable with a duty of 1 [one hundred
rupees] instead of the duty (if any) prescribed
for it in that Schedule.
(2) The parties may determine for themselves
which of the instruments so employed shall,
for the purposes of sub-section (1), be
deemed to be the principal instrument.
Provided that the duty chargeable on the
instrument so determined shall be the highest
duty which would be chargeable in respect of
any of the said instruments employed.
Section 5 - Instrument relating to several
distinct matters or distinct transactions. Any
instrument comprising or relating to several
distinct matters shall be chargeable with the
aggregate amount of the duties with which
separate instrument, each comprising or
relating to one of such matters or distinct
transactions, would be chargeable under this
Act.
6. Instruments coming within several
descriptions in Schedule I.-Subject to the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
provisions of the last preceding section, an
instrument so framed as to come within two
or more of the descriptions in Schedule I,
shall, where the duties chargeable
thereunder are different, be chargeable only
with the highest of such duties:
Provided that nothing in this Act contained
shall render chargeable with duty exceeding
one rupee a counterpart or duplicate of any
instrument chargeable with duty and in
respect of which the proper duty has-been
paid."
From bare reading of these provisions, it is
clear that Section 4 deals with single
transaction completed in several instruments,
whereas Section 5 deals only with the
instrument which comprises more than one
transaction and it is immaterial for the
purpose whether those transactions are of
the same category or of different categories.
31. It appears from the trustee document that
altogether 13 banks lent money to the
mortgagor, details of which have been
described in the schedule and for the
repayment of money, the borrower entered
into separate loan agreements with 13
financial institutions. Had this borrower
entered into a separate mortgage deed with
these financial institutions in order to secure
the loan there would have been a separate
document for distinct transactions. On proper
construction of this indenture of mortgage it
can safely be regarded as 13 distinct
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
transactions which falls under Section 5 of
the Act.
32. Both the learned counsel put reliance on
the five Judges Constitution Bench Judgment
of this Court in the Case of The Member,
Board of Revenue vs. Arthur Paul
Benthall (supra). The said case originated
from a reference made to the High Court of
Calcutta by the Revenue Authorities seeking
opinion with regard to the stamp duty
payable in the instrument. The respondent in
that case was at the material time the
Managing Director of M/s. Bird and Co. Ltd.
and Messrs F.W. Heilgers and Com. Ltd
which were acting Managing Agents of
several Companies Act under the Indian
Companies Act. The respondents were also
Director of a number of other Companies, and
had on occasions acted as liquidator of some
Companies, as executor or administrator of
estates of deceased persons and as trustee of
various estates. He proposed to execute
power of attorney empowering the M/s.
Douglas Chisholm Fairbairn and John James
Brims Southerland jointly and severally to act
for him in his individual capacity and also as
executor administrator, trustee, Managing
Agents, liquidator, and all other capacities.
The Collector referred the matter
under Section 56(2) of the Act to the decision
of Chief Controller, Revenue Authority, who
eventually referred it to the High Court of
Calcutta stating his own opinion that stamp
duty was payable on the power "for as many
respective capacities as the principal
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
executes the power". The majority view of the
Bench held that the different capacities of the
executants would not constitute the distinct
matter for the purpose of Section 5 of the Act
and that the proper duty and instrument was
payable under Article 48(d) of Schedule 1(a)
of the Stamp Act.
33. Answering the Reference, the
Constitution Bench of this Court elaborately
discussed the scope and object of Sections
4,5, and 6 of the Stamp Act and finally
allowed the appeal. Their Lordship held
(Benthall case, AIR p.38, para 4):-
"4. We are unable to accept the contention
that the word "matter" in section 5 was
intended to convey the same meaning as the
word "description" in section 6. In its popular
sense, the expression "distinct matters"
would connote something different from
distinct "categories". Two transactions might
be of same description, but all the same, they
might be distinct.
If A sells Black-acre to X and mortgages
White-acre to Y, the transactions fall under
different categories, and they are also distinct
matters. But if A mortgages Black-acre to X
and White-acre to Y, the two transactions fall
under the same category, but they would
certainly be distinct matters.
If the intention of the legislature was that the
expression 'distinct matter' in section5 should
be understood not in its popular sense but
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
narrowly as meaning different categories in
the Schedule, nothing would have been easier
than to say so. When two words of different
import are used in a statute in two
consecutive provisions, it would be difficult to
maintain that they are used in the same
sense, and the conclusion must follow that
the expression "distinct matters" in
section 5 and "description" in section 6 have
different connotations."
34. Their Lordships further held that:
(Benthall case, AIR p.41, para 13)
"13.... When a person possesses both a
personal capacity and a representative
capacity, such as trustee, and there is a
delegation of power by him in both those
capacities, the position in law is exactly the
same as if different persons join in executing
a power in respect of matters which are
unrelated.
There being no community of interest
between the personal estate belonging to the
executant and the trust estate vested in him,
they must be held to be distinct matters for
purposes of section 5. The position is the
same when a person is executor or
administrator, because in that capacity he
represents the estate of the deceased, whose
persona is deemed to continue in him for
purposes of administration."
35. We have also gone through the provisions
contained in Sections 33, 39, Article
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
6 and 6(b) of the Act as also Bombay Stamp
(Gujarat Second Amendment) Rules, 2007
and the Circular dated 2.4.2007. After giving
out anxious consideration to those provisions
and also in the light of the ratio decided by
the Constitution Bench of this Court in The
Benthall case (supra), we are of the definite
opinion that the High Court has committed
serious error of law in interpreting the
provisions of Sections 5 and 6 of the Act.
Consequently, the answer given by the High
Court on the Reference cannot be sustained
in Law."
110. The thrust of arguments canvassed by learned
Government Pleader is that by executing a single
instrument, Legislature is prescribed that on the distinct
transaction or distinct transaction, the stamp duty shall
be charged as separate instruments which executed for
separate set of transaction. In other words, a single
instrument which is giving rise to multiple and distinct
transaction, Section 5 of the Stamp Act would be
attracted as the instrument discloses that it comprises of
more than one transaction and is used as a tool to give
effect to multiple transaction by executing a single
transaction. We have already noticed the judgment of the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Hon'ble Apex Court in the case of Arthur Paul Benthall
(supra), which has also been relied upon by relying upon
paragraph 13 in the very same judgment. The Hon'ble
Apex Court has explained the expression "distinct
matters" would connote something different from distinct
"categories". It has been further observed :
"4. We are unable to accept the contention
that the word "matter" in section 5 was intended to
convey the same meaning as the word "description"
in section 6. In its popular sense, the expression
"distinct matters" would connote something
different from distinct "categories". Two
transactions might be of the same description, but
all the same, they might be distinct.
If A sells Black-acre to X and mortgages White-
acre to Y, the transactions fall under different
categories, and they are also distinct matters. But if
A mortgages Black-acre to X and mortgages
Whiteacre to Y, the two transactions fall under the
same category, but they would certainly be distinct
matters.
If the intention of the legislature was that the
expression 'distinct matters' in section 5 should be
understood not in its popular sense but narrowly as
meaning different categories in the Schedule,
nothing would have been easier than to say so.
When two words of different import are used in a
statute in two consecutive provisions, it would be
difficult to maintain that they are used in the same
sense, and the conclusion must follow that the
expression "distinct mat- ters" in section 5 and
"descriptions" in section 6 have different
connotations.
7. The error in this argument lies in thinking that
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
the object and scope of sections 4 to 6 are the same,
which in fact they are not. Section 4 deals with a
single transaction completed in several instruments,
and section 6 with a single transaction which might
be viewed as falling under more than one category,
whereas section 5 applies only when the instrument
comprises more than one transaction, and it is
immaterial for this purpose whether those
transactions are of the same category or of different
categories.
The topics dealt with in the three sections
being thus different, no useful purpose will be
served by referring to section 4 or section 6 for
determining the scope of section 5 or for construing
its terms. It is not without significance that the
legislature has used three different words in
relation to the three sections, 'transaction' in
section 4, matter' in section 5, and 'description' in
section 6.
8. In support of his contention that 'distinct
matters' in section 5 meant only different
categories, learned counsel for the respondent
relied on certain observations in Ansell v. Inland
Revenue Commissioners(1). There, the instrument
under consideration was a deed of settlement which
comprised certain Government securities as also
other investments, and under the Stamp Act, 1891,
it was chargeable with a single duty ad valorem on
the value of all the properties settled.
By section 74, sub-section (1) of the Finance
Act, 1910, voluntary dispositions were chargeable
with a higher stamp duty as on a conveyance; but
Government securities were, exempted from the
operation of the section.
The question that arose for decision was
whether a separate duty was payable in respect of
Government stocks under the provisions of the
Stamp Act, 1891 over and above what was paid
under section 74, sub-section (1) of the Finance Act,
1910 on account of other investments. Answering it
in the affirmative, Rowlatt, J. observed:
"If two different classes of property are being
transferred by the same words of assignment in the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
same document, and those two different classes of
property in the same document are different from
the point of view of the Stamp Act and taxation, it
seems to me in common sense that they must be
distinct matters".
The respondent wants to read these
observations as meaning that where the matters are
not dealt with separately for purposes of stamp
duty, then they are not distinct matters. This,
however, does not follow. The case before the court
was one in which the instrument dealt with
properties which fell under' two categories, and the
decision was that they were distinct matters.
There is nothing either in the deci- sion or the
observations quoted above to support the
contention of the respondent that if the instrument
comprises matters falling within the same
description, it is not to be construed as comprising
distinct matters. Reliance was also placed on the
observations in Reversionary Interest Society v.
Commissioners of Inland Revenue(1), in which it
was held that a statutory declaration for the
purpose of carrying through a transaction was
liable for a single stamp duty.
There, the declaration was made by husband
and wife, and in view of the purpose for which it
had to be used, it was construed as one declaration.
This is a decision on the facts, and is not of much
assistance.
10. We are unable to agree with the respondent
'that when a person executes a power-of-attorney in
respect of all the matters in which he could act, it
should be held, as a matter of law and without
regard to the contents of the instrument, to
comprise a single matter. Whether it relates to a
single matter or to distinct matters will, in our
opinion, depend on a number of factors such as who
are parties thereto, which is the subject-matter on
which it operates and so forth.
Thus, if A executes one power authorising X to
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
manage one estate and Y to manage another estate,
there would really be two distinct matters, though
there is only one instrument executed by one
person. But if both X and Y are constituted
attorneys to act jointly and severally in respect of
both the estates, then there is only one delegation
and one matter, and that is specifically provided for
in article 48(d).
Conversely, if a number of persons join in
executing one instrument, and there is community
of interest between them in the subject-matter
comprised therein, it will be chargeable with a
single duty. This was held in Davis v. Williams,
(1811) 104 ER 358(D); - Bowen v. Ashley, (1825)
127 ER 467 at p. 469(E); - Good-son v. Forbes
(1815) 128 ER 999 at pp. 1000-1001 (F); and other
cases. But if the interests of the executants are
separate, the instrument must be construed as
comprising distinct matters.
Vide Freeman v. Commissioners of Inland
Revenue, (1870-71) 6 Ex. 101(G). Applying the same
principle to powers-of-attorney, it was held in Allen
v. Morrison (1828) 108 ER 1152 at p. 1153(H), that
when members of a mutual insurance club executed
Single power, it related to one matter , Lord
Tenterdon, C. J. observing that "there was certainly
a community of purpose actuating all the members
of this club".
In Reference under Stamp Act, s. 46(1), a
power-of attorney executed by thirty-six persons in
relation to a fund in which they were jointly
interested was held to comprise a single matter. A
similar decision was given in Reference under
Stamp Act, s. 46(2) where a power-of-attorney was
executed by ten mirasdars empowering the
collection of communal income appurtenant to their
mirasi rights.
On the other hand, where several donors
having separate interests execute a single power-of-
attorney with reference to their respective
properties as, for example, when A constitutes X as
attorney for management of his estate Black-acre
and B constitutes the same person as attorney for
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
the management of his estate White-acre, then the
instrument must be held to comprise distinct
matters.
It was so decided in Reference under Stamp
Act, 8. 46(3). Thus, the question whether a power-of
attorney relates to distinct matters is one that will
have to be decided on a consideration of the terms
of the instrument and the nature and the extent of
the authority conferred thereby."
111. As noticed by the Hon'ble Apex Court therein, it has
been clearly held vide paragraph No. 10 that if a number
or persons joined in executing one instrument, and there
is community of interest between them in the subject
matter comprised therein, it will be chargeable with a
single duty. Halsbury's Laws of England, Volume
44(I), Fourth Edition Reissue has defined instrument
relating to several matters as under : -
"1015. Instrument relating to several
matters. Except where there is statutory
provision to the contrary, an instrument
containing or relating to several distinct
matters is to be separately charged, as if it
were a separate instrument, with stamp duty in
respect of each of the matters, and in
instrument made for any consideration in
respect of which it is chargeable with ad
valorem duty, and also for any further or other
valuable consideration or considerations, is
separately chargeable, as if it were a separate
instrument, in respect of each of the
considerations.
It seems that 'distinct matters' means for this
purpose matters which either fall under
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
separate heads of charge or are separate
transactions. Thus a statutory declaration,
sworn as to one part by one person and as to
another part by another, attracted only one
stamp as one declaration prior to the abolition
of duty under this head. On the other hand, a
single conveyance of separate items of
property, of which some attract conveyance
duty and some do not, relates to distinct
matters. Again, if two persons in fact sell
property to each other, a mutual conveyance
described as an exchange attracts the same
aggregate duty as two separate conveyance
described as an exchange attracts the same
aggregate duty as two separate conveyances as
sale. However, there is authority for the
principle that an instrument stamped for its
leading and principal object covers everything
accessory to that object.
The line between one matter and
several is not easy to draw. It has,
however, been regarded as well
established that, where a provision in an
instrument is such that, even if it had not
expressed, it would have been implied by
law, such a provision is not a distinct
matter and no duty is chargeable in
respect of it. The fact that several
persons join in an instrument does not by
itself make their shares in the
transaction separate and distinct
matters, provided that there is a
community of the same subject matter,
either as to property or interest, in all
the parties, although, in the absence of
the necessary community of interest,
more than one stamp may be required.
Various instruments which, in respect of
their leading characteristic, were either
not liable to duty, or if liable were
properly stamped, have been held not to
be chargeable with any further duty by
reason of the inclusion of provisions
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
considered to be merely ancillary to the
leading object; whereas stamp duty has
been attracted where a provision has
been held not to be merely ancillary to
another main provision but separate and
distinct."
112. In the instant case, under composite scheme of
amalgamation / reconstruction, no immovable property is
being conveyed or transferred, it is only the shares which
is being transferred. Infact the business of each of the
legal entities are being handed and managed
substantially under the same management by same
persons and such reconstruction inter se cannot be
segregated, particularly, when the said arrangement and/
or reconstruction was pursuant to single composite
order / instruments. Infact the sanction of the scheme of
amalgamation / reconstruction was by single order only.
As such treating the said transaction as distinct
transaction and thereby demand separate stamp duty
appears to be in conflict with the true import and
meaning of Section 5 of the Stamp Act. A conjoint
reading of the principals enunciated in the afore-
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
mentioned cases by the Hon'ble Apex Court, we are of the
opinion that neither the scheme of amalgamation or
reconstruction sanction by Company Court in exercise of
the powers vested under section 394 of the Companies
Act, 1956 or Section 232 (2013 Act) can be brought
within the sweep of Section 5. if such interpretation were
to be accepted, it would run counter to the literal
meaning of fiscal statute and as such reference will have
to be answered against the Revenue and in favour of the
Subject.
113. The next issue which arises for our consideration is
whether in a proceedings initiated under section 31 of the
Act, Collector has any jurisdiction to impound to any
instrument by invoking the provision of Section 33. In
order to adjudicate the said issue, we are of the
considered view that it would be apt and appropriate to
extract the relevant two provisions namely Section 31 and
33 of the Gujarat Stamp Act and it reads as under : -
"31. Adjudication as to proper stamp. - (1)
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
When any instrument, whether executed or not
and whether previously stamped or not, is
brought to the Collector, and the person bringing
it applies to have the opinion of that officer as to
the duty (if any) with which it is chargeable, and
pays a fee of such amount [not exceeding one
hundred rupees and not less than twenty-five
rupees] as the Collector may, in each case direct,
the Collector shall determine the duty (if any)
with which in his judgement, the instrument is
chargeable.
(2) For this purpose the Collector may require to
be furnished with an abstract of the instrument,
and also with such affidavit or other evidence as
he may deem necessary to prove all the facts and
circumstances affecting the chargeability of the
instrument with duty, or the amount of the duty
with which it is chargeable, are fully and truly set
forth therein, and may refuse to proceed upon
any such application until such abstract and
evidence have been furnished accordingly:
Provided that-
(a) no evidence furnished in pursuance of this
section shall be used against any person in any
civil proceeding, except in an inquiry as to the
duty with which the instrument to which it relates
is chargeable; and
(b) every person by whom any such evidence is
furnished shall, on payment of the full duty with
which the instrument to which it relates is
chargeable, be relived from any penalty which he
may have incurred under this Act by reason of the
omission to state truly in such instrument any of
the facts or circumstances aforesaid.
(3) Where an officer appointed as a Collector
under clause (f) of section 2 has reason to believe
that the market value of the property, which is
the subject matter of the instrument, received by
him for adjudication, has not been truly set forth
therein, he shall, before assessing the stamp duty
under this section, refer the instrument to the
Collector of such district in which either the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
whole or any part of the property is situate, for
determining, in accordance with the procedure
laid down in section 32A, the true market value of
such property and the proper duty payable on the
instrument.]
33. Examination and impounding of
instruments. - (1) [Subject to the provision of
section 32A, every person] having by law or
consent of parties authority to receive evidence,
and every person in charge of a public office
except an officer of police, before whom any
instrument, chargeable, in his opinion, with duty,
is produced or comes in the performance of his
functions shall if it appears to him that such
instrument is not duly stamped, impound the
same.
(2) For that purpose every such person shall
examine every instrument so chargeable and so
produced or coming before him in order to
ascertain whether it is stamped with a stamp of
the value and description required by the law for
the time being in force in the State when such
instrument was executed or first executed:
Provided that-
(a) nothing herein contained shall be deemed to
require any Magistrate or Judge of a Criminal
Court to examine or impound, if he does not think
fit so to do any instrument coming before him in
the course of any proceeding other than a
proceeding under Chapter XII or Chapter XXXVI
of the Code of Criminal Procedure, 1898 (V of
1898);
(b) in the case of a Judge of High Court, the duty
of examining and impounding any instrument
under this section may be delegated to such
officer as the Court may appoint in this behalf."
114. Section 33 empowers every person having by law or
consent of parties, authority to receive evidence, and
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
every person in charge of a public office except an officer
of police, before whom any instrument, chargeable and in
his opinion, with duty, is produced or comes in the
performance of his functions, shall, if it appears to him
that such instrument is not duty stamped, impound the
same.
115. However, Section 31 would indicate the mode of
adjudication as to proper stamp. Section 31 nowhere
speaks of the authority of the Collector to impound
documents. The said issue is no more res integra, the
provisions of the Stamp Act, 1899, as prevalent in the
State of Uttar Pradesh for the subject matter of the
examination by the Hon'ble Apex Court in the case of
Government of Uttar Pradesh and others versus
Raja Mohammad Amir Ahmad Khan reported in AIR
1961 SC 787 and it has been held that the Collector has
no power to impound the document. It has been further
held :
"5. After an inordinately long delay, the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Collector determined the amount of duty
payable and impounded the document. Power
to impound is given in s. 33 of the Act. Under
that section any Person who is a Judge or is in-
charge of a public office before whom an
instrument chargeable with duty is produced or
comes in the performance of his functions is
required to impound the instrument if it
appears to him not to be duly stamped. The
question is does this power of impounding arise
in the present case?. The instrument in dispute
was not produced as a piece of evidence nor for
its being acted upon e.g. registration, nor for
endorsement as under s. 32 of the Stamp Act
but was merely brought before the Collector for
seeking his advise as to what the proper duty
would be. The words "every person............
before whom any instrument............ is
produced or comes in the performance of his
functions" refer firstly to production before
judicial or other officers performing judicial
functions as evidence of any fact to be proved
and secondly refer to other officers who have to
perform any function in regard to those
instruments when they come before them e.g.
registration. They do not extend to the
determination of the question as to what the
duty payable is. They do not cover the acts
which fall within the scope of s. 31, because
that section is complete by itself and it ends by
saying that the Collector shall determine the
duty with which, in his judgment, the
instrument is chargeable, if it is chargeable at
all. Section 31 does not postulate anything
further to be done by the Collector. It was
conceded that if the instrument is unexecuted
i.e. not signed, and the opinion of the Collector
is sought, he has to give his opinion and return
it with his opinion to the person seeking his
opinion. The language in regard to exe- cuted
and unstamped documents is no different and
the powers and duties of the Collector in regard
to those instruments are the same, that is,
when he is asked to give his opinion, he has to
determine the duty with which, in his judgment,
the instrument is chargeable and there his
duties and powers in regard to that matter end.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Then follows s. 32. Under that section the
Collector has to certify by endorsement on the
instrument brought to him under s. 31 that full
duty has been paid, if the instrument is duly
stamped, or it is unstamped and the duty is
made up, or it is not chargeable to duty. Under
that section the endorsement can be made only
if the instrument is presented within a month of
its execution. But what happens when the
instrument has been executed more than a
month before its being brought before the
Collector? Section 31 places no limitation in
regard to the time and there is no reason why
any time limit should be imposed in regard to
seeking of opinion as to the duty payable.
6. Chapter IV of the Act which deals with
instruments not duly stamped and which
contains as. 33 to 48, provides for impounding
of documents, how the impounded documents
are to be dealt with, Collector's powers to
stamp instruments impounded and how the
duties and penalties are to be recovered. It
would be an extraordinary position if a person
seeking the advice of the Collector and not
wanting to rely upon an instrument as evidence
of any fact to be proved nor wanting to do any
further act in regard to the instrument so as to
effectuate its operation should also be liable to
the penalties which unstamped instruments
used as above might involve. The scheme of the
Act shows that where a person is simply
seeking the opinion of the Collector as to the
proper duty in regard to an instrument, he
approaches him under s. 31. If it is properly
stamped and the person executing the
document wants to proceed with effectuating
the document or using it for the purposes of
evidence, he is to make up the duty and under
s. 32 the Collector will then make an
endorsement and the instrument will be treated
as if it was duly stamped from the very
beginning. But if he does not want to proceed
any further than seeking the determination of
the duty payable then no consequence will
follow and an executed document is in the same
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
position as an instrument which is unexecuted
and unstamped and after the determination of
the duty the Collector becomes functus officio
and the provisions of s. 33 have no application.
The provisions of that section are a subsequent
stage when something more than mere asking
of the opinion of the Collector is to be done."
116. In light of the above authoritative pronouncements,
the issue or question will have to be necessarily held
against the Revenue.
117. In Stamp Reference No. 7 of 2020, question No. 4
and 6 referred to (supra) has been referred for being
adjudicated. In the instant case, the National Company
Law Tribunal, Principal Bench, New Delhi passed an
order dated 24.11.2017, sanctioned scheme of
arrangement amongst :
(i) Inter Globe Enterprises Ltd. - transferor
Company
(ii) Inter Globe Real Estate Venture Private Ltd.
relating to subsidiary No. 1 - applicant
(iii) Inter Globe Business Solution Private
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
(iv) Acquired Services Private Ltd. - transferee
Company.
118. On such scheme being sanctioned, it resulted in
following :
(A) Real Estate Undertaking of transferor
company stood de-merged into applicant's
company
(B) I.T. Supports Company undertaking of
transferor Company stood de-merged into
resulting company.
(C) the Residual transferor company was
amalgamated with the transferee company.
119. The immovable properties of transferor company
situated in Gujarat stood transferor to the applicant
pursuant to the sanction of the scheme, applicant was
made before the Deputy Inspector General - I, Jaipur
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
seeking adjudication of the said instrument which came
to be adjudicated and call upon the petitioner to pay Rs.
25 crores towards the stamp duty and Rs. 5 crores
towards surcharge. The certificate issued by the
Collector (Stamp), Jaipur, Rajasthan dated 05.02.2018
(Annexure D), would evidence the fact of State of
Rajasthan having received demand of Rs. 30 crores
towards said instrument and undisputedly the transaction
of the scheme of arrangement was treated as a single
transaction. However, notice dated 09.10.2018 -
Annexure F came to be issued by the Collector, Gujarat
demanding duty of Rs. 30,18,38,002/- and after affording
personal hearing, final opinion was served on the
applicant on 18.10.2019.
120. In view of our finding on the issue of such
transaction not being covered under section 5 of the
stamp duty under the Gujarat Stamp Act as prescribed
under Article 20(d) cannot exceed Rs. 25 crores and the
instruments in question having already suffered stamp
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
duty of Rs. 30 crores in the State of Rajasthan, no further
stamp duty was payable in the State of Gujarat in light of
the section 19 of the Stamp Act, and it reads thus :
"19. Payment of duty on certain
instruments liable to increased duty in
[Gujarat State]. - Where any instrument of the
nature described in any article in Schedule I
and relating to any property situate or to any
matter or thing done or to be done in this State
is executed out of the State and subsequently
received in the State,-
(a) the amount of duty chargeable on such
instrument shall be the amount of duty
chargeable under Schedule I on a document of
the like description executed in this State less
the amount of duty, if any, already paid under
any law in force in India excluding the State of
Jammu and Kashmir on such instrument when it
was executed;
(b) and in addition to the stamps, if any,
already affixed thereto such instrument shall be
stamped with the stamps necessary for the
payment of the duty chargeable on it under
clause (a) of this section, in the same manner
and at the same time and by the same persons
as though such instrument were an instrument
received in this State for the first time at the
time when it became chargeable with the
higher duty; and
(c) the provisions contained in clause (b) of the
proviso to sub-section (3) of section 32 shall
apply to such instrument as if such were an
instrument executed or first executed out of
this State and first received in this State when
it became chargeable to the higher duty
aforesaid, but the provisions contained in
clause (a) of the said proviso shall not apply
thereto"
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
121. Only in the event of stamp duty being higher in the
State of Gujarat and in the event of stamp duty having
been paid in other state being lessor then the duty
prescribed by the State of Gujarat, difference in duty
would be required to be paid.
122. In the instant case, the Chief Controlling Revenue
Authority as well as Collector empowered in holding that
surcharge levied on the instrument under section 3(a)
and 3(b) of the Rajasthan Stamp Act are not ""amount of
duty" as contemplated under section 19 of the Act. Infact
the total stamp duty chargeable on the instrument was
Rs. 30,18,38,002/- and Rs. 5,18,38,002/- surcharge. In
any case, the stamp duty that has been paid is on the
same instrument in the State of Rajasthan being Rs. 25
crores, the same ought to have been given set off as per
Section 19 of the Stamp Act at the time of computation of
the stamp duty chargeable in the State of Gujarat on the
said instrument, as such the question is answered against
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
the Revenue.
123. The demand of stamp duty on the instrument to the
extent that said demand has been raised by considering
the transmission line of Adani Power Limited as
immovable property has been referred as question No.1
in S.R.No.6 of 2020. Brief facts are that High Court of
Gujarat sanctioned a scheme on 26.09.2014 whereby the
respective transmission divisions of (i) Adani Power
Limited (APL) and (ii) Adani Power Maharashtra Limited
(APML) were to demerge from the said companies and
such demerged divisions were to stand transferred to
Adani Transmission (India) Limited (ATIL). ATIL filed an
application under Section 31 of the Gujarat Stamp Act
before the Collector and on seeking certain particulars
which was produced by ATIL and after several months
indicated the stamp duty payable at Rs.27,80,50,000/- on
the ground that said transaction was covered under
Section 5 of the Stamp Act; Rs.25 Crores duty on transfer
of shares though computation determined on 28.16
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Crores and in view of cap prescribed under Article 20(d)
and (c) the transmission division of APML does not have
any immovable property in the State has issued one crore
shares of Rs.10/- to shareholders of APML and thereby
the stamp duty of Rs.2,80,50,000/- was payable. It was
the plea of the ATIL that the plant and machinery of APL
is not a factory and cannot be considered as immovable
property.
124. Section 2(ja) of the Stamp Act defines immovable
property as under :
"2(ja) "immovable property" includes
land benefits to arise out of land and things
attached to the earth or permanently
fastened to anything attached to the earth;]
Explanation - Where any plant and
machinery of a factory transferred or sold
with the intention of running the said
factory, such transaction shall be deemed
to be a transaction of the immovable
property."
125. A plain reading of the above provision would
indicate that it would include land, benefits to arise out of
land and things attached to the earth or permanently
fastened to anything attached to earth. The explanation
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
thereto would indicate that any plant and machinery of a
factory the transferred or sold with the intention of
running the said factory, such transaction is deemed to be
a transaction of immovable property. It has been the
stand of the revenue that Section 2(ja) stipulates and
considers inter alia things permanently fastened to
anything attached to earth as an 'immovable property'
and it also explains 'plant and machinery' of a factory to
be an immovable property. In the instant case the records
would disclose that the applicant in the communication
dated 10.07.2015 addressed to the Collector and
Superintendent of Stamps as well as the Additional
Superintendent of Stamps has furnished the details of
immovable property of the transfer undertaking - I of
Adani Power Limited situated in the State of Gujarat
whereunder the plant and machinery as well as
transmission line, inter alia, consisting of conductors and
towers has been furnished. Based on the same, Collector
passed an order on 25.07.2008 demanding the stamp
duty of Rs.27,80,50,000/- by quantifying the price of plant
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
and machinery, price of land and building and price of
capital work in progress as under :
Price of Land Building Rs.7,62,06,00,000.00
Price of Plant and Machinery Rs.19,07,69,00,000.00
Price of Capital Work in Rs.1,46,40,00,000.00
Progress
Total Rs.28,16,15,00,000.00
126. Challenging the said order, an application was filed
before the Chief Controlling Revenue Authority by the
applicant under Section 53 of the Stamp Act who by order
dated 30.12.2019 accepted the order of the Collector by
opining that applicant has not produced any details with
regard to the amount of capital work in progress and
furnishing the bifurcation of the amount. Section 2(ja)
definition 'immovable property' is clearly and
unambiguous. It not only take within its sweep the land,
the benefits arising out of land and things attached to
earth or permanently fastened to anything attached to
earth, but also any plant and machinery of a factory
transferred or sold and by deeming fiction to be
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
transaction of an immovable property. The Hon'ble Apex
Court in the case of Commissioner of Central Excise,
Ahmedabad vs. Solid and Correct Engineering
Works and others reported in (2010) 5 SCC 122 has
held that mere attachment to earth does not qualify a
plant to be treated as immovable property. It has been
further held that machinery attached by bolts to special
concrete basis that could not be easily removed, held not
part of structure or soil beneath it. It is further held :
21. The expression "moveable property" has been
defined in Section 3(36) of the General Clauses Act,
1897 as under:
"Section 3(36) : "movable property" shall mean
property of every description, except immovable
property."
From the above it is manifest that the answer to the
question whether the plants in question are movable
property, would depend upon whether the same are
immovable property. That is because anything that is
not immovable property is by this very definition
extracted above "moveable" in nature.
24. Section 3(26) of the General Clauses Act
includes within the definition of the term "immovable
property" things attached to the earth or
permanently fastened to anything attached to the
earth. The term "attached to the earth" has not been
defined in the General Clauses Act, 1897. Section 3 of
the Transfer of Property Act, however, gives the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
following meaning to the expression "attached to the
earth":
"(a) rooted in the earth, as in the case of trees and
shrubs;
(b) imbedded in the earth, as in the case of walls and
buildings;
(c) attached to what is so imbedded for the
permanent beneficial enjoyment of that to which it is
attached."
25. It is evident from the above that the expression
"attached to the earth" has three distinct dimensions,
viz.
(a) rooted in the earth as in the case of trees and
shrubs (b) imbedded in the earth as in the case of
walls or buildings or
(c) attached to what is imbedded for the permanent
beneficial enjoyment of that to which it is attached.
Attachment of the plant in question with the help of
nuts and bolts to a foundation not more than 1= feet
deep intended to provide stability to the working of
the plant and prevent vibration/wobble free operation
does not qualify for being described as attached to
the earth under any one of the three clauses
extracted above. That is because attachment of the
plant to the foundation is not comparable or
synonymous to trees and shrubs rooted in earth. It is
also not synonymous to imbedding in earth of the
plant as in the case of walls and buildings, for the
obvious reason that a building imbedded in the earth
is permanent and cannot be detached without
demolition. Imbedding of a wall in the earth is also in
no way comparable to attachment of a plant to a
foundation meant only to provide stability to the plant
especially because the attachment is not permanent
and what is attached can be easily detached from the
foundation. So also the attachment of the plant to the
foundation at which it rests does not fall in the third
category, for an attachment to fall in that category it
must be for permanent beneficial enjoyment of that to
which the plant is attached.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
29. The Indian law has developed on similar lines
and the mode of annexation and object of annexation
have been applied as relevant test in this country
also. There are cases where machinery installed by
monthly tenant was held to be moveable property as
in cases where the lease itself contemplated the
removal of the machinery by the tenant at the end of
the tenancy. The mode of annexation has been
similarly given considerable significance by the
courts in this country in order to be treated as
fixture. Attachment to the earth must be as defined
in Section 3 of the Transfer of Property Act. For
instance a hut is an immovable property, even if it is
sold with the option to pull it down. A mortgage of
the super structure of a house though expressed to
be exclusive of the land beneath, creates an interest
in immovable property, for it is permanently attached
to the ground on which it is built.
30. The courts in this country have applied the test
whether the annexation is with the object of
permanent beneficial enjoyment of the land or
building. Machinery for metal-shaping and electro-
plating which was attached by bolts to special
concrete bases and could not be easily removed, was
not treated to be a part of structure or the soil
beneath it, as the attachment was not for more
beneficial enjoyment of either the soil or concrete.
Attachment in order to qualify the expression
attached to the earth, must be for the beneficial
attachment of that to which it is attached. Doors,
windows and shutters of a house are attached to the
house, which is imbedded in the earth. They are
attached to the house which is imbedded in the earth
for the beneficial enjoyment of the house. They have
no separate existence from the house. Articles
attached that do not form part of the house such as
window blinds, and sashes, and ornamental articles
such as glasses and tapestry fixed by tenant, are not
affixtures.
31. Applying the above tests to the case at hand, we
have no difficulty in holding that the manufacture of
the plants in question do not constitute annexation
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
hence cannot be termed as immovable property for
the following reasons:
(i) The plants in question are not per se immovable
property.
(ii) Such plants cannot be said to be "attached to the
earth" within the meaning of that expression as
defined in Section 3 of the Transfer of Property Act.
(iii) The fixing of the plants to a foundation is meant
only to give stability to the plant and keep its
operation vibration free.
(iv) The setting up of the plant itself is not intended
to be permanent at a given place. The plant can be
moved and is indeed moved after the road
construction or repair project for which it is set up is
completed.
127. Keeping the aforesaid principles enunciated in mind,
when the facts on hand are looked into it would detain us
for two long to accept the plea of the revenue insofar as
two items under the definition of 'immovable property'
namely Item No.1 and 2 noted hereinabove in the tabular
column. However, with regard to the capital work in
progress is concerned, even the Chief Controlling
Revenue Authority in order dated 30.12.2019 at
paragraph 5.2 has observed thus :
"It is submitted by applicant company
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
xxxxx amount of capital work in progress
included which amount. However, the
applicant company has not produced the
said details. In these circumstances xxxx
immovable property."
128. In view of this categorical finding with regard to the
capital work in progress not being identifiable with
bifurcation so as to treat the said work as falling within
the definition of Section 2(ja) would be improper.
However, the same being a mixed question of fact, same
cannot be gone into in this proceeding and as such, it
would be apt and appropriate for the original authority
namely Collector to examine the same by calling upon the
applicant to furnish the details of the same. However, we
make it explicitly clear that insofar as the other two items
referred to in serial Nos.1 and 2 in the tabular column
hereinabove is concerned, the plea of the revenue stands
accepted.
129. Similar issue with regard to stamp duty leviable on 'work
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
in progress' by bringing it within the sweep of Section 2(ja) had
come up for consideration before the Coordinate Bench of which
one of us was a member (Justice Aravind Kumar, CJ who was the
author of the judgment) and it has been opined that in the said
order rendered in Letters Patent Appeal No.906 of 2021 on
17.11.2021 to the following effect:
"8. In so far as the issue relating to work in
progress for the purposes of levy of stamp duty, it
is trite law that work in progress cannot be
construed as an asset to be in existence for the
purposes of levy of stamp duty. The definition of
"immovable property" as defined under Section
2(j)(ja) of The Gujarat Stamp Act would clearly
indicate that this includes land, benefits to arise
out of land and things attached to the earth or
permanently fastened to do anything attached to
the earth. Thus, "work in progress" cannot be
included in the definition of "immovable property"
and, therefore, the learned Single Judge has
rightly arrived at a conclusion that levy of stamp
duty of Rs.3,02,282/- on capital work in progress is
liable to be set aside. This finding being in
consonance with the provisions of the Act would
not call for interference. However, in order to
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
satisfy ourselves as to whether the property which
is situated in Maharashtra has suffered the duty,
we had called upon the learned counsel appearing
for the respondent to file an affidavit vide order
dated 21.10.2021. Accordingly, affidavit has been
filed and on perusal of the same, it would clearly
indicate that transfer fee of Rs.5.00 lakhs is paid
to Maharashtra Industrial Development
Corporation by the petitioner on 14.11.2003 and
the receipt of payment to MIDC is annexed to the
affidavit at Annexure-B. Thus, duty that has been
paid on the approval of the Scheme of Merger of
petitioner company is in consonance with the
provisions of the Act of both the States namely
State of Gujarat and State of Maharashtra.
130. Hence, we are of the considered view that demand of
stamp duty in respect of 'work in progress' by the Collector as
indicated at Sr. No.3 in the tabular column hereinabove cannot
be sustained or it is held that same is contrary to Section 2(ja)
and accordingly, the question is answered partly in favour of the
Revenue viz. to the extent of the land and building, plant and
machinery and in favour of the applicant in S.R. No.6 of 2020
for the capital work in progress.
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
131. The next question which would arise for our consideration
would be a reference to the levy of penalty viz. question No.3 in
S.R. No.6 of 2020 which is also relatable to question No.5 in
S.R. No.1 of 2020. In the instant case, the Collector, vide order
dated 25.7.2018, has imposed a penalty of Rs.1 lakh in
purported exercise of powers under Section 39(1)(b). Hence, we
extract the said provision hereinbelow:
"39. Collector's power to refund penalty paid under
section 38, sub-section (1) When a copy of an
instrument is sent to the Collector under section 38,
sub-section (1), he may, if he thinks fit refund any
portion of the penalty in excess of five rupees which
has been paid in respect of such instrument.
(2) When such instrument has been impounded
only because it has been written in contravention of
section 13 or section 14, the Collector may refund
the whole penalty so paid."
132. The ground of which the penalty has been levied was that
the order dated 26.9.2014 of the High Court sanctioning the
scheme was produced on 7.3.2015 and it is in violation of
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Section 17 of the Stamp Act. Undisputedly the fact is that on the
scheme having been sanctioned on 26.9.2014, the applicant
noticed that there were certain typographical errors in the said
order and as such 'a note for speaking to minutes' was filed on
8.10.2014 vide Annexure-C. On the very same day, Adani
Transmission (India) Limited (ATIL) filed an application seeking
modification of the order dated 26.9.2014 to the extent seeking
permission to lodge the copy of the order for adjudication for
the period of '60 days from the effective date' instead of '60
days from the date of order of sanctioning the scheme i.e.
26.9.2014' by Company Application No.294 of 2014. This
application came to be allowed by the Company Court on
25.11.2014. Thus, the effective date under the sanctioned
scheme occurred on 12.1.2015 and within 60 days, the
application was filed under Section 31 of the Stamp Act before
the Collector & Additional Superintendent of Stamps. Though
this fact was urged, the same has been completely ignored by
the Collector or in other words not adjudicated or in other
words, the Collector has not disagreed with the contention by
adjudicating the same. Likewise, the Chief Controlling Revenue
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
Authority in its order dated 30.12.2019 (Annexure-S) at
paragraph No.5.6 and on the ground that the application was
not preferred before 24.12.2014 as affirmed the said finding of
the Collector. In view of ATIL having been filed Application
No.294 of 2014 seeking modification of the order dated
26.9.2014 on 8.10.2014 and a note for speaking to minutes also
having been filed on the same day viz. on 8.10.2014 having
resulted in the said application being allowed on 25.11.2014,
the Chief Controlling Revenue Authority could not have resorted
to Section 32(a) inasmuch as Section 17 enables the applicant to
submit the same within two months from the date of its
execution and the effective date as per the sanction made by
this Court would operate from the date of order which came to
be passed on 25.11.2014 and consequently, the effective date
having occurred from 12.1.2015 and the application in question
having been filed on 7.3.2015, the levy of penalty was not
warranted and it was contrary to law. Incidentally question
which would arise as framed as question No.1 in S.R. No.7 of
2020 is being answered by directing the authorities to pass
appropriate orders in the light of the references to the questions
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
referred to hereinabove having answered by this Court.
133. Thus, the references are answered as follows:
S.R. No. Questions of Law Question Answer
No.
1/2020 Whether in the facts and 1 NO
case, the learned Collector in
proceeding initiated under
Section 31 of the Act had any
jurisdiction or authority to
impound any instrument by
invoking the provision of
Section 33 of the Act?
1/2020 Whether in the facts and 2 NO
III (a) to Article 20 of the
Schedule to the Act, stamp duty
applicable as on the "appointed
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
date" will not be payable?
1/2020 Whether in the facts and 3 NO
circumstances of the present
case, a revised notice can be
issued to expand the scope of
an earlier show cause notice
and introduced a completely
new case altogether?
1/2020 Whether in the facts and 4 YES
circumstances of the present
case, provisions of Section 17 of
the Act have any applicability
qua the instrument under
consideration?
1/2020 Whether in the facts and 5 NO
circumstances of the present
case, the provision of Section
39(1)(b) of the Act can be made
applicable, more so when the
mandatory requirement for the
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
invocation of the provision of
Section 39(1)(b) of the Act have
not been fulfilled?
1/2020 Whether in the facts and 6 NO
circumstances of the present
case, can any delay be ascribed
to the applicant company in
submitting the requisite detail /
document in relation to the
issuance of shares?
1/2020 Whether in the facts and 7 NO
circumstances of the present
case, any penalty can be levied
on the applicant company?
2/2020 Whether treating the amount of 2 YES
1/2021 2 would be
premium in relation to the ultra vires
issuance of shares of the
transferee company under a
scheme of amalgamation,
where neither the transferee
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
company nor the transferor
company are listed companies,
as consideration under Article
20(d)(i) of Schedule I to the
Stamp Act in addition to the
face value of the issued shares,
would not be ultra vires and
illegal, inter alia as being
contrary to the express
provision of valuation under
Explanation III (c) of Article
20(d) of Schedule I to the
Stamp Act?
3/2020 Whether the respondents have 2 YES
erred in law and in fact in not
appreciating the entries in
fiscal legislation like that
Gujarat Stamp Act, 1958 are
required to be given strict
literal interpretation and there
is no scope of reading
something into the entry which
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
is expressly not mentioned
otherwise by the legislature in
its wisdom?
3/2020 Whether respondents erred in 3 YES
law and in adjudication stamp
duty at Rs.1,60,83,177/- Act on
the order of the Hon'ble
National Company Law
Tribunal, Ahmedabad Bench
pertaining to the transfer of
Windmill undertaking by way of
slump sale and amalgamation of
residue undertaking with Gopal
Mirror Coating Pvt. Ltd.
4/2020 Whether an order of the High 1 It is a single
7/2020 1 composite
Court under Section 232 of the
scheme and
Companies Act, 2013, not covered
by Section
sanctioning a single composite
scheme of arrangement, albeit
between multiple companies, is
not a single instrument, which
is not covered by Section 5 of
the Stamp Act, considering the
settled position of law that the
instrument covered under
Article 20(d) of Schedule I to
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
the Stamp Act is an order of the
High Court, and not the scheme
sanctioned by such order?
4/2020 Whether an order of the High 2 It is single
5/2020 1 indivisible
Court under Section 294 of the
6/2020 4 instrument
7/2020 Companies Act, 1956, 1 and Section
5 is not
sanctioning a single composite
attracted.
scheme of arrangement, is not a
single indivisible instrument
that is not comprising or
relating to several distinct
matters or distinct transactions
as contemplated by Section 5 of
the Stamp Act and not subject
to levy as such, considering the
fact that the instrument
covered under Article 20(d) of
Schedule I to the Stamp Act
would be the order of the High
Court, and not the scheme
sanctioned by such order?
6/2020 Whether the CCRA has erred in 1 YES
upholding the Collector's
demand of stamp duty on the
said instrument to the extent
that such demand has been
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
raised by considering
transmission lines of the APL as
immovable property, completely
overlooking the contention of
the applicant that transmission
lines are not attached to the
earth or permanently fastened
to anything attached to the
earth or that transmission lines
are not plant and machinery
transferred or sold with the
intention of running a factory
and therefore could not be said
to be immovable property at
all?
6/2020 Whether the CCRA has erred in 2 YES
upholding the Collector's
demand of stamp duty on the
said instrument to the extent
that such demand has been
raised by treating "capital
works in progress" as
immovable property, completely
overlooking the contention of
the applicant that "capital
works in progress" is not
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
covered within the meaning of
immovable property under
Section 2(ja) of the Gujarat
Stamp Act, 1958 and therefore
could not be said to be
immovable property at all?
7/2020 If in answer to the Question of 2 Not covered
7/2020 4 under
Law (a) above, it is held that
7/2020 6 Section 5 of
the said instrument executed Gujarat
Stamps Act.
out of Gujarat, is covered under
Section 5 of the Stamp Act by
treating (i) the demerger of the
Real Estate Undertaking of
InterGlobe Enterprises Limited
into InterGlobe Real Estate
Ventures Private Limited, (ii)
the demerger of IT Support
Services Undertaking of
InterGlobe Enterprises Limited
into InterGlobe Business
Solution Private Limited, (iii)
the amalgamation of the
residual InterGlobe Enterprises
Limited with Acquire Services
Private Limited, as three
separate transactions, and
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
considering that the alleged
separate transactions at Sr. No.
(ii) and (iii) above neither relate
to any property situated in
Gujarat nor relate to any matter
or thing done or to be done in
Gujarat, then as per Section 5
read with Section 3(b) of the
Stamp Act, whether the Stamp
duty chargeable on the said
instrument that would not be
only the stamp duty chargeable
on an instrument that would
comprise or relate to the
alleged separate transaction at
Sr. No.(i)?
7/2020 Whether the applicant is 7 YES
entitled to refund of the amount
of Rs.1,29,59,501/- deposited by
it at the time of filing
application under Section 53(1)
of the Stamp Act before the
Chief Controlling Revenue
Authority?
1/2021 Whether the Chief Controlling 3 YES
Revenue Authority has not He erred in
C/SR/1/2020 CAV JUDGMENT DATED: 10/02/2023
erred in placing reliance upon placing
reliance on
the judgment dated 20.12.2019
judgment
of learned Single Judge of the dated
20.12.2019
Hon'ble Gujarat High Court in
passed in
Special Civil Application Special
Civil
No.14597 of 2019, when the
Applicatio
said judgment dated 20.12.2019 n No.
14597 of
has been stayed by the Division
2019 as it
Bench of the Hon'ble Gujarat had been
stayed by
High Court vide order dated
order dated
10.2.2020 passed in Letters 10.02.2020
in Letters
Patent Appeal No.125 of 2020?
Patent
Appeal
No.125 of
Accordingly, the above references stand disposed of.
(ARAVIND KUMAR, CJ)
(ASHUTOSH SHASTRI, J)
(NISHA M. THAKORE,J)
GAURAV/BHARAT/AMAR
