Gujarat High Court
Gopal Glass Works Limited vs Chief Controlling Revenue Authority ... on 6 February, 2020
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/1191/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1191 of 2020
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GOPAL GLASS WORKS LIMITED
Versus
CHIEF CONTROLLING REVENUE AUTHORITY GANDHINAGAR
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Appearance:
MR TUSHAR HEMANI, SENIOR ADVOCATE assisted by M/S. JAIMIN R
DAVE(7022) SHIVAM D PARIKH(9477) for the Petitioners
MR KM ANTANI, AGP for the Respondents No. 1,2
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 06/02/2020
ORAL ORDER
1. RULE. Learned AGP Mr.K.M.Antani waives service of Rule on behalf of the respondents.
2. This petition under Article 226 of the Constitution of India is filed challenging order dated 17/18.12.2019 passed by the Chief Controlling Revenue Authority, Gandhinagar and seeking remand of the matter back to respondent No.1 for drawing up a statement of fact and making a reference under Section 54(1A) of the Gujarat Stamp Act, 1958 ("the Act", for short). The issue before the Court is delay of 28 days in filing Stamp Reference under Section 54 of the Act.
3. Learned Senior Advocate for the petitioner submitted that the National Company Law Tribunal, vide Page 1 of 6 Downloaded on : Sun Jun 14 07:18:17 IST 2020 C/SCA/1191/2020 ORDER order dated 11.08.2017, allowed a Composite Scheme of Arrangement in the nature of the transfer of Windmill Undertaking of Gopal Glass Works Ltd. into Gopal Mirror Coating Pvt. Ltd. by way of Slump Sale and amalgamation of residue undertaking of Gopal Glass Pvt. Ltd., the Transferor Company into Gopal Mirror Glass Works Ltd., the Transferee Company under Section 230 to 232 of the Companies Act, 2013. It is submitted that according to the provisions of Gujarat Stamp Act, 1958 an order of amalgamation is considered to be an instrument. Section 3(a) of the Gujarat Stamp Act, 1958 provides that every instrument mentioned in Schedule-I which is executed in the State shall be chargeable with duty of the amount indicated in that schedule.
3.1 It is submitted that Accordingly, the Petitioner applied before Respondent No. 2, under Section 31 of the Gujarat Stamp Act, 1958, for determination/ adjudication of the applicable stamp duty under Article 20(d) of Schedule-I of the 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. Thereafter, vide its letter dated 23.04.2019, Respondent No. 2, proposed to the adjudicate stamp duty amount of Rs. 1,60, 83,177/-. Page 2 of 6 Downloaded on : Sun Jun 14 07:18:17 IST 2020 C/SCA/1191/2020 ORDER 3.2 It is submitted that in response thereto, Petitioner, vide its letter dated 21.05.2018, Strongly objected to the proposed adjudication on the order of Composite Scheme of Arrangement on various grounds. 3.3 It is submitted that Respondent was liable to adjudicate stamp duty liability on the basis of face value of shares which was Rs. 10/-. However, in utter disregard to the provisions of law, Respondent No. 2 erroneously concluded that share premium is required to be taken into account while computing the market value of shares and accordingly, computed total stamp duty liability at an amount of Rs.1,60,83,170/- 3.4 The petitioner therefore preferred appeal under Section 53 of the Act. The appeal was against order dated 28.08.2019, which was received by the petitioner on 31.08.2019 and on 28.11.2019, petitioner preferred Stamp Reference along with delay condonation application. It is submitted that the Reference was rejected without considering valid explanation given for condonation of delay and hence, the present petition is filed.
4. Vide order dated 23.11.2020, notice was issued. However, so far no reply has been filed against the contentions raised by the petitioner.
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5. Having considered the rival submissions of the parties and having perused documents on record, it appears that the order under challenge is dated 17/18.12.2019 by which as the Reference was not filed within a period of 60 days as prescribed under Section 54(1) and the reason given is with regard to opinion sought from the Advocate not being a proper reason, the Reference was rejected.
6. As provided under Section 54(1A) of the Act, Reference is required to be filed within a period of 60 days. However, proviso to Section 54(1A) provides for the bar to the CCRA to satisfy itself for the cause of delay in presenting the application beyond 60 days and if found acceptable, can condone the period up to 30 days. From the impugned order, it appears that respondent No.1 has not taken into consideration the proviso, which reads as under:-
"Provided that the Chief Controlling Revenue Authority may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days."
7. In the instant case, considering the fact that the order regarding which Reference was made was passed Page 4 of 6 Downloaded on : Sun Jun 14 07:18:17 IST 2020 C/SCA/1191/2020 ORDER on 28.08.2019 and it was served upon the petitioner on 31.08.2019 and it is only after the date of service that the period of limitation would start running, the application for Stamp Reference was filed on 28.11.2019 along with delay condonation application. The chronology therefore indicates that the application for Reference was not beyond period of 90 days, which would take away jurisdiction of CCRA to condone the delay.
8. The Court can refer to and rely upon the judgment of this Court in case of Ladha Enterprise Vs. State of Gujarat & Ors., reported in (2015) 2 GLR, 1339, wherein on facts it was found that the appeal was filed on 89th day. The Court had directed the Reference Application to be considered on merits. Reliance can also be placed on an unreported decision of this Court in case of Sanjaybhai Jaikishanbhai Patel Vs. Chief Controlling Revenue Authority in SCA No.517 of 2017 dated 13.06.2017, where, in identical facts and circumstances, the Court remanded the case back to respondent No.1 and to be heard on merits without objection of period of limitation.
9. Considering the aforesaid facts and circumstances, it would be appropriate to quash and set aside order dated 17/18.12.2019. It is accordingly quashed and set aside. The respondent No.1 to reconsider Page 5 of 6 Downloaded on : Sun Jun 14 07:18:17 IST 2020 C/SCA/1191/2020 ORDER the application for Reference under Section 54(1A) of the Act and also application for condonation of delay as provided in the proviso to Section 54(1A).
10. The petition is allowed in the aforesaid terms. Rule is made absolute. No order as to costs.
Sd/-
(A.Y. KOGJE, J) SHITOLE Page 6 of 6 Downloaded on : Sun Jun 14 07:18:17 IST 2020