The main legal point established in the judgment is the correct interpretation and application of stamp duty provisions under Article 23A of the Indian Stamp Act, 1899 in the context of a scheme of amalgamation.

JUDGMENT :

1. The petitioner has assailed a writing dated February 8, 2018 issued by the Collector of Stamp Revenue, Kolkata adjudicating the stamp duty payable in respect of the order dated February 26, 2016 passed by the High Court in Company Petition No. 242 of 2016 connected with Company Application No. 137 of 2016 sanctioning a scheme of amalgamation between the transferor and the transferee companies.

2. Learned Advocate appearing for the petitioner has submitted that, the impugned order has proceeded on the basis of Article 23A of the Indian Stamp Act, 1899. He has submitted that, the transferee company is not the beneficiary of any immovable property being transferred to it by virtue of sanction granted to the Scheme of Amalgamation. Therefore, stamp duty for a conveyance of an immovable property is not payable by the transferee company. He has submitted that, Article 23A prescribes half per centum of the value of the issued paid up and subscribed share capital of the transferee company as the stamp duty payable by the transferee company. The impugned order is therefore incorrect. He has drawn the attention of the Court to the proviso to Article 23A and submitted that, the main provision cannot be cut down by the proviso. He has relied upon (Hindustan Ideal Insurance Co. Ltd. v. Life Insurance Corporation of India, (1963) AIR SC 1083) in support of such contention. Relying upon 2012 Volume 3 Calcutta High Court Notes page 102 (In re: Emami Biotech Limited & Anr.) he has submitted that, stamp duty is payable by the transferee company even in absence of special provision requiring stamp duty to be payable. However, subsequent to the judgments of the Court rendered in 114 Company Cases 1992 (In re: Gemini Silk Ltd.), 130 Company Cases page 510 (Madhu Intra Ltd. v. Registrar of Companies) and (Hindustan Lever v. State of Maharashtra, (2004) 9 SCC 438) Article 23A was introduced to the Indian Stamp Act, 1899. The impugned order misconstrues and misapplies the provisions of Article 23A in the facts of the present case.

3. Learned Senior Standing Counsel appearing for the State has submitted that, the State has proceeded on the basis of the stamp duty attracted in the facts of the present case at the rate which is the highest in view of the words "whichever is higher" as appearing in Article 23A. He has submitted that, the impugned order cannot be faulted.

4. It is the contention of the parties that, the words "whichever is higher" used in the two sub-clauses in the column of proper stamp duty leviable, is causing problems, both for the person seeking to register the order sanctioning the scheme as also for the registering authority.

5. Dalgreen Agro Commodities Pvt. Ltd. and Dalgreen Agro Pvt. Ltd. applied under Sections 391 and 394 of the Companies Act, 1956 for grant of sanction of a scheme of amalgamation whereby and where under, Dalgreen Agro Commodities Pvt. Ltd. was sought to be transferred to and vested with Dalgreen Agro Pvt. Ltd. with all assets and liabilities. Such scheme of amalgamation was sanctioned by this Hon'ble Court by an Order dated April 26, 2016 passed in Company Petition No. 242 of 2016 connected with Company Application No. 137 of 2016. By virtue of the sanction of the scheme of amalgamation, the petitioner became obliged to apply before the registering authorities for registering the order granting the sanction of the scheme of amalgamation as also the scheme of amalgamation. The petitioner applied for adjudication of stamp duty under Section 31(1) of the Act of 1899. By the impugned writing dated August 31, 2017, the authorities informed the petitioner that, the stamp duty payable in respect of the deed would be six per cent of the value of the paid up share capital of the petitioner company as the transferee company, in terms of Article 23A.

6. Gemini Silk Ltd. (supra), Hindustan Lever (supra) and Emami Biotech Limited & Anr. (supra) have held that, a scheme of amalgamation sanctioned by the Court under