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IN THE HIGH COURT OF RAJASTHAN
PUSHPENDRA SINGH BHATI, J.
HISTORICE RESORT HOTELS PVT LTD THROUGH ITS AUTHORIZED SIGNATORY ARUN KHODPIA — Appellant
Vs.
STATE OF RAJASTHAN THROUGH, SUB REGISTRAR, JAISALMER (RAJASTHAN) — Respondent
Civil Writ No. 8757 of 2016
Decided on : 16-08-2018
STAMP DUTY - CHANGE OF COMPANY NAME - NO TRANSFER OF LEASE BY ASSIGNMENT - NO STAMP DUTY LEVIABLE: The mere change in the name of a company, which is a legal entity in itself, shall not justify any invocation of the stamp duty, which is leviable upon transfer of property.
Fact of the Case:
The petitioner company, initially incorporated as 'Bairaj Jagdamba Hotels and Resorts Private Limited', changed its name to 'Historic Resort Hotels Private Limited' through a resolution passed by its directors and with the approval of the Central Government. The company had been allotted plots and buildings by the District Collector, Jaisalmer, and had executed and registered lease deeds. After the change in name, the company applied to the respondents to make necessary changes in the government and revenue records. However, the respondents issued notices to the company, claiming that the change in name resulted in a transfer of lease by way of assignment and demanded stamp duty as per Article 63 of the Rajasthan Stamp Act, 1998.
Finding of the Court:
The court held that the change in the name of the company did not amount to a transfer of lease by way of assignment, as the legal character of the company had not changed. The court relied on the precedent law of M/s Om Metals Infra Projects Ltd. v. The State of Rajasthan & Anr., where it was held that a mere change in the name of a company by resort to Section 21 of the Companies Act 1956 did not entitle the respondents to pass an impugned order demanding stamp duty.
Issues: Whether the change in the name of the company amounted to a transfer of lease by way of assignment, attracting stamp duty under Article 63 of the Rajasthan Stamp Act, 1998.
Ratio Decidendi: The court held that the change in the name of the company did not amount to a transfer of lease by way of assignment, as the legal character of the company had not changed. The court relied on the precedent law of M/s Om Metals Infra Projects Ltd. v. The State of Rajasthan & Anr., where it was held that a mere change in the name of a company by resort to Section 21 of the Companies Act 1956 did not entitle the respondents to pass an impugned order demanding stamp duty.
Final Decision: The court allowed the writ petition, quashed and set aside the impugned order passed by the Collector (Stamp), Circle, Jodhpur, Jodhpur in Stamp Case No.40/2014, and restored any order passed by the respondents in consequence of the impugned order in favor of the petitioner.
Pushpendra Singh Bhati, J.
The petitioner has preferred this writ petition under Article 226 of the Constitution of India claiming the following reliefs:
"It is, therefore, humbly prayed that this writ petition may kindly be accepted and the impugned order dated 27.05.2016 (Annexure P/28) passed by the learned Collector, (Stamp) Circle, Jodhpur, Jodhpur in Stamp Case NO.40/2014 may kindly be set aside and reference petition / application filed by the respondent No.1 may kindly be order to be rejected and consequently, the notice dated 06.06.2016 (Annexure P/29) issued by the learned Collector, (Stamp) Circle, Jodhpur, Jodhpur may kindly also be set aside.
Any other order or direction, which this Hon'ble Court deemed just and proper be passed in favour of the petitioner."
2. Brief facts of this case, as noticed by this Court, are that the present writ petition arises out of a reference petition preferred by respondent under Section 51 of the Stamp Act, 1998. The Petitioner-Company was initially incorporated as a Company, pursuant to issuance of proper certificate on 29.08.1989, which is Annexure P/1 of the writ petition, and its name was 'Bairaj Jagdamba Hotels and Resorts Private Limited' with Company No. 05105/1989-90.
3. The plots in question were allotted in the name of 'Bairaj Jagdamba Hotels and Resorts Private Limited' by allotment orders dated 03.10.1989 and 30.01.1991 passed by District Collector, Jaisalmer, which led to execution and registration of the lease deeds on 20.03.1990 and 14.03.1991 respectively.
4. On 16.03.1994, a resolution regarding change of name of M/s. Bairaj Jagdamba Hotels and Resorts Private Limited was passed by its Directors, and it was resolved that the name of the Company shall be changed to 'Historic Resort Hotels Private Limited'. The Directors of Bairaj Jagdamba Hotels and Resorts Private Limited further passed the resolution on 26.04.1994 so as to resolve in respect of change in the name of the Company.
5. The fresh Certificate of Incorporation was issued to the petitioner-Company by the Registrar of Companies, Rajasthan, Jaipur on 12.05.1994 under Section 23(1) of the Companies Act, 1956, which effectively changed the name of the company from 'M/s. Bairaj Jagdamba Hotels and Resorts Private Limited' to 'Historic Resort Hotels Private Limited'. While issuing such Certificate, the Company No.05105/1989-90 remained the same and the permission from the Central Government was also recorded in the Certificate. The aforementioned Certificate issued by the Registrar of Companies, Rajasthan, Jaipur reads as follows :-
"Company No.5150
FRESH CERTIFICATE OF INCORPORATION CONSEQUENT OF CHANGE OF NAME IN THE OFFICE OF THE REGISTRAR OF COMPANIES, Rajasthan Jaipur.
(Under the Companies Act, 1956 (1 of 1956)
IN THE MATTER OF BAIRAJ JAGDAMBA HOTELS AND RESORTS PRIVATE LIMITED
I hereby certify that BAIRAJ JAGDAMBA HOTELS AND RESORTS PRIVATE LIMITED which was originally incorporated on 29th August 1989 having duly passed the necessary resolution in terms of Section 21 of Companies Act, 1956 and the approval of the Central Government signified in writing having been accorded there to in the Ministry of Industry Law, Justice & Company affairs, Department of Company affairs, Office of the Registrar of Companies, Rajasthan Jaipur vide his letter No. R.O.C. / Approval /21/13877 dated 12.05.1994 the name of the said Company is this day changed to HISTORIC RESORT HOTELS PRIVATE LIMITED and his certificate is issued in pursuant to Section 23 (1) of the Said Act.
Given under my hand at JAIPUR this TWELFTH day of MAY on thousand nine hundred and NINETY FOUR.
(D.K. GUPTA)
REGISTRAR OF COMPANIES RAJASTHAN, JAIPUR."
6. After the aforesaid change in the name of the Company, the petitioner-Company submitted an application before the respondents to make the necessary changes in the Government as well as revenue records. The Authority concerned i.e. Sub Registrar, Jaisalmer, in lieu thereof, gave a notice dated 29.02.2012, stating
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