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Judgment
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.â€
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.
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.
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.
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 aforementtioned 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, Rajathan Jaipur vide his letter No. R.O.C. / Approval /21/13877Â 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.â€
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 therein that as a result of change in the name of the Company, there is transfer of allotted plots and buildings and also there
is a change of legal identity of the Company and therefore, in such circumstances, the transfer of lease may be registered according to the Rules upon
which stamp duty is payable as per Article 63.
Another notice dated 26.04.2012 was served upon the petitioner-Company in pursuance of the aforementioned notice dated 29.02.2012. The
respondents, however, sought opinion of the Collector (Stamp), Circle Jodhpur, Jodhpur regarding applicability of Article 63 upon the present
petitioner. However, the said notices were dropped vide order dated 05.06.2014 by the respondent authorities, and the learned District Collector,
Jaisalmer passed orders on 06.08.2014 and 13.08.2014 for extension of the lease period for further 20 years in respect of the three plots allotted to the
petitioner-Company for its hotel business.
The respondents, however, again served a notice on 03.09.2014 upon the petitioner-Company on the ground that the legal entity and character of
the Company has changed, and therefore, the stamp duty was payable as per Article 63. This notice was issued, despite the closure made by the Sub-
Registrar, Jaisalmer earlier on 05.06.2014.
Yet another notice under Section 54 of the Rajasthan Stamp Act was served upon the petitioner on 19.09.2014, which was issued by the Sub-
Registrar, Jaisalmer, by which an amount of Rs.3,74,95,790/- was ordered to be deposited within seven days, failing which, a reference would be filed
before the Collector (Stamp), Jodhpur.
A reference notice was issued on 13.10.2014 under Section 55 of the Rajasthan Stamp Act, 1998 read with Rule 65(2) of Rajasthan Stamp Rules
2004, which defined the transfer of lease by way of assignment, as amenable to recovery of stamp duty, surcharge and registration charges payable
on market value. The petitioner filed a detailed reply dated 09.03.2015 to such notice before the respondent No.2. However, the respondent No.2
passed the impugned order on 27.05.2016, whereby the learned authority held that the ‘transfer of the lease by way of assignment', as per item
No.55 of Schedule of Section 3 of the Rajasthan Stamp Act, 1998 was there, and thus, the petitionerCompany was required to pay the requisite
amount to the tune of Rs.3,52,10,290/-.
This Hon’ble Court, after hearing learned counsel for the petitioner, passed an interim order on 03.08.2016, whereby the respondents were
restrained from taking any coercive action against the petitioner-Company, subject to the petitioner furnishing a solvent security equivalent to the
amount for which demand has been raised by respondent No.2 vide its order dated 27.05.2016. The said interim order dated 03.08.2016 reads as
follows :-
“Issue notice. Issue notice of stay application also, returnable in two weeks. Notices be given 'dasti' to the learned counsel for the petitioner.
Meanwhile, no coercive action shall be taken against the petitioner-Company provided they furnish a solvent security equivalent to the amount for
which demand has been raised by respondent No.2 vide its order dated 27.05.2016 (Annex-P/8).â€
The respondents have filed their reply and have broadly take two objections. Firstly, that as held by the Hon’ble Apex Court in Har Devi
Asnani Vs. Collector Stamp & Anr. (2011) 14 SCC 160, an alternative remedy was provided under Section 65(1) of the Rajasthan Stamp Act, 1998,
and therefore, statutory remedy cannot be bypassed. Secondly, the Company had changed its name, and therefore, transfer was made inter se
between the companies and the same falls within the definition of ‘lease by way of assignment’.
The petitioner filed an application for deciding the matter in light of the judgment passed by this Hon’ble Court at Jaipur Bench in S.B. Civil
Writ Petition No.10415/2015 (M/s Om Metals Infra Projects Ltd. Vs. The State of Rajasthan & Anr.) decided on 19.09.2017. The relevant portion of
the said judgment reads as under :-
“The argument of alternate remedy available against the impugned order dated 08.07.2015 is mechanical and reactive. It overlooks the well settled
legal position that to require a petitioner to avail the statutory alternative remedy against the order impugned before it is a matter of the Court's
discretion with reference to the facts of a case. Where there is no factual dispute, the question agitated is a pure legal one and relates to the
jurisdiction of the competent authority to pass the impugned order, the writ court can exercise its equitable extraordinary jurisdiction eschewing the
availability of statutory alternative remedy. In the case of Har Devi Asnani Versus State of Rajasthan & Ors. [(2011) 14 SCC 160], the Apex Court
in the context of the Rajasthan Stamp Act, 1998 itself, has held that albeit the remedy of revision has been statutorily provided for, yet when the
Court's equitable extraordinary jurisdiction under Article 226 is invoked, it should make an enquiry with reference to the facts of the case and where
the demand is patently illegal or so exorbitant as to make the remedy by way of revision ineffective (or onerous), the Court can exercise its
jurisdiction. In the above context of law, the merits of the case at hand show that the demand for stamp duty against the petitioner- Company for mere
change of its name by resort to Section 21 of the Act of 1956 is patently illegal, arbitrary and ultra vires the Act of 1998. The foundation of that
demand is the circular NO.6/2009 issued by the DIG (Stamps and Registration). Even the Circular whatever its legal standing; does not cover the
situation where a mere change in the name of the company by resort to the provisions of Section 21 of the Companies Act without any change of
shareholders, memorandum of associations, directors of the Company or its management would entail a demand for stamp duty. The said circular only
provides that there would be a transfer of lease by way of assignment in situations where the legal character of the company is altered or partnership
is changed by induction of new partners following which an amended deed has been executed qua the immovable assets of the company/ firm. In the
instant case, the change visualized under the Circular dated 6/2009 has not been made inasmuch as the ""legal character"" of the Company has not
changed. A legal character entails certain legal incidents, rights and liability. There is nothing to show nor was it even alleged that by change of the
name of the petitioner company by resort to Section 21 of the Act of 1956, any of its rights or liabilities were altered and/ or entailed legal incident/s
not earlier attracting to it in its earlier avtar. Further under Article 55 of the Act of 1998 stamp duty is leviable on a conveyance / transfer which by its
very definition will entail giving away of immovable property by one to another. This court fails to fathom, and counsel for the respondent-State
department is of little assistance to show, as to how a company which alone is involved in a change of its name, can transfer immovable property to
self. It obviously cannot.
Aside of the aforesaid, the Apex Court in the case of Prasad Technology Park (P) Ltd. (supra) held that ""only because the name of the Company was
changed, the same would not mean a fresh transaction took place."" The Apex Court proceeded to point out that it was well settled that the real and
true meaning of the instrument must be ascertained for the purpose of levy of stamp duty and if there was no conveyance, from one to another, stamp
duty was not leviable. Even otherwise, an assignment entails a conveyance from one to another-- two entities natural born or juristic have to obtain -
such a situation does not obtain on a mere change in the name of the company.
The upshot of the aforesaid discussion is that the impugned order dated 8.7.2015 passed by DIG (Registration) and the demand thereunder is wholly
illegal, arbitrary ultra-vires the Stamp Act 1988 and therefore liable to be quashed and set-aside. It is so. The petition stands allowed accordingly. â€
Learned counsel for the petitioner has, thus, argued that the argument of alternative remedy against the impugned order was mechanical and
reactive, while overlooking the well settled legal position, and thus, it was well within the ambit of the Court to exercise its discretion in light of the fact
that there is no factual dispute, and the questions agitated are pure legal questions relating to jurisdiction of the competent authority to pass the
impugned order.
Learned counsel for the petitioner has further submitted that the Certificate (Annexure P/8) issued by the Registrar of Companies, Rajasthan,
Jaipur, which has already been reproduced hereinabove, clearly demonstrates that the Registrar of Companies, Rajasthan, Jaipur has changed the
name of the Company from ‘Bairaj Jagdamba Hotels & Resorts Private Limited’ to ‘Historic Resort Hotels Private Limited’ in terms of
the resolution passed by the Company and in terms of Section 21 of the Companies Act 1956, and the approval of the Central Government signified in
writing having been accorded thereto in the Ministry of Industry Law, Justice & Company Affairs, Department of Company Affairs, Office of the
Registrar of Companies, Rajasthan, the name of the Company was changed.
Learned counsel for the petitioner has thus, pointed out that the facts are absolutely identical to the aforesaid precedent law, as this Hon'ble Court
in the aforementioned precedent law has held that a mere change in the name by resorting to Section 21 of the Act of 1956 did not entitle the
respondents to pass the impugned order. This Hon'ble Court has also dealt with the circular No.6 of 2009 issued by the DIG (Stamp) and
Registration, which justified the impugned order. This Hon'ble Court has followed the principle laid down by the Hon'ble Apex court in the case of
Prasad Technology Park (P) Ltd. Vs. Sub-Registrar & Ors. [(2006) 1 Supreme Court Cases 473] wherein it was held that only because the name of
the Company was changed, the same would not mean that a fresh transaction took place.
Learned counsel for the respondents has reiterated the two points mentioned in his reply, but is unable to refute the applicability of precedent law
as cited above. Learned counsel for the respondents could not provide any assistance, which would make the facts of the present case distinguishable,
from the facts of M/s Om Metals (supra), which has already been decided by this Hon'ble Court.
After hearing counsel for the parties and perusing the record of the case, alongwith the precedent law cited at the Bar, this Court finds that the
impugned order has been passed by the respondents on the premise that M/s Bairaj Jagdamba Hotels & Resorts Private Limited was given the lease-
hold and the same lease has been transferred, by way of assignment, to M/s Historic Resort Hotels Private Limited, and since such transfer actually
falls within the purview of Item No. 55 of Schedule of Section 3 of Rajasthan Stamp Act, 1998, therefore, the transfer in question comes within the
purview of transfer / lease by way of assignment.
This Court has seen the impugned order passed in another case, bearing Stamp Case No.41/2014, by the same authority on 03.02.2016, and the
said case has been argued by the same counsel, on the same issue, whereby the respondent authority has dropped the reference on the ground that
the Company is a legal personality entirely distinct from its member and the Company is capable of enjoying its rights and being subjected to duties
which are not the same as those enjoyed or borne by its members. The principle further followed by the learned authority was that where the shares
are transferred, at best, this would be transferred vis-a-vis the person who was the holder of the shares to the person to whom the shares are
transferred. The relevant portion of the order reads as follows :-
“bl izdkj Li""V gS fd Hkkjrh; dEiuh vf/kfu;e 1956@2013 ds vUrxZr fdlh dEiuh 'ks;jksa ds gLrkUrj.k ds fof'k""V izko/kku fu/kkZfjr fd;s gS rFkk
rnkuqlkj gLrkUrj.k dh lwpuk vkfn ds fu/kkZfjr izk:i gSA 'ks;jksa dk gLrkUrj.k ds vf/kdkj ,oa mu ij yxk;s x;s izfrcU/k dEiuh ds vkfVZdy vkWQ
,lksfl;s'ku esa fu/kkZfjr gksrs gS] ftlds vuq:i gh iz'uxr izdj.k esa dEiuh us 'ks;lZ VªkalQj dj eSustesUV ifjorZu fd;k gSA 'ks;j VªkalQj gksus ij
Hkkjrh; eqnzkad vf/kfu;e 1899 ds vuqlkj enzkad dj vnk dj fn;k gA LVkWd ,Dlpst esa cM+h&cM+h dEifu;ksa ds cM+h ek=k esa izfrfnu 'ks;lZ
gLrkUrfjr@dz; fodz; gksrs gS] ysfdu mlls bu dEifj;ksa dh ifjlEifr;ksa dk gLrkUrj.k ugha gksrk gSA blds vfrfjDr vizkFkhZ dEiuh }kjk izLrqr vU; U;kf;d
n`""VkUrksa ds ifj'khyu ls Li""V gS fd dEiuh ds 'ks;j gLrkUrj.k@'ks;j isVuZ ifjorZu ls dEiuh dh lEifr;ka gLrkUrfjr ugha gksrh gSA iz'uxr izdj.k esa
fnukad 23-8-91 dks yslh dEiuh eSllZ gjshVst bu izk- fy- Fkh tks vkt Hkh ;Fkkor gS u gh dEiuh ds uke esa ifjorZu gqvk gS u gh dEiuh ds O;olk; esa
ifjorZu gqvk gSA foHkkxh; ifji= la[;k 30@1993 rFkk 8@2004 ds vuqlkj iz'uxr izdj.k esa cph gqbZ vof/k ds fy, yht gLrkUrj.k ugha gqvk gS rFkk
iVVkxzfgrk O;fDr yht tkjh fnukad 23-891 tks Fkk] ogh vkt Hkh gS ¼eSllZ gsjhVst bu izk- fy-½A vr% jsQjsUl ds rF; lkfcr ugha gksus ls jsQjsUl
[kkfjt fd;k tkrk gSA i=koyh ckn rkfey rdehy Qsly 'kqekj gksdj uEcj ls de dj nkf[ky nQrj gksA izdj.k esa fu.kZ; jkT; ljdkj ds fo:) gksus ls i=koyh ijh{k.k
gsrq eq[;ky; Hksth tkosA
vkns'k vkt fnukad 3-2-2016 dks [kqys U;k;ky; esa lquk;k x;kAâ€
The same authority has taken a different view in regard to change in the name of the Company and has applied Section 3 of the Rajasthan Stamp
Act, 1998, Item No.55 of Schedule of Section 3, by calling it a transfer of lease by way of assignment in this matter.
This Court finds that the Certificate issued by the Registrar of Companies bears the same Company No.5105, and clearly mentioned that the name
of Bairaj Jagdamba Hotels & Resorts Private Limited incorporated on 29.08.1989, on its own necessary resolutions, in terms of Section 21 of the
Companies Act, 1956 and the approval of the Central Government signified in writing having been accorded thereto in the Ministry of Industry law,
Justice & Company Affairs, Department of Company Affairs, Office of the Registrar of Companies, the name of the company was changed to
Historic Resort Hotels Private Limited. Thus, the mere change in the name of the Company would not entitle the respondents to call it a transfer byÂ
way of assignment.
This Court also finds that the precedent law cited by learned counsel for the petitioner in the matter of M/s Om Metals (supra) is directly
applicable in the present facts and circumstances, where the writ jurisdiction was invoked on the question of law, even when a remedy was available
to the concerned petitioner. This Court has also taken note of the fact that the precedent law upholds the proposition that the legal character of the
Company had not changed, and therefore, the impugned order would not be sustainable.
This Hon'ble Court in the precedent law has also held that a legal character entails certain legal incident, rights and liability, and such legal incident,
rights and liability have not been pointed out by the respondents, which could suggest that the matter was beyond the change in name of the
petitionerCompany. Under Article 55 of the Act of 1998, stamp duty is leviable on a conveyance / transfer which by its very definition will entail giving
away of immovable property by one to another. This Hon’ble Court in the said precedent law has further held that an assignment entails a
conveyance from one to another, which ought to be two entities, i.e. natural born or juristic, and the change in name of the Company would not mean
the same as it is transaction within one legal entity only.
This Court further finds that the same proposition is arising in the present controversy as well, and the legal question of law is whether the
Company, which has lawfully changed its name from one to another, would be subjected to the rigors of the stamp duty under the Act of 1998. This
Court also finds that in the same situation, this Hon'ble Court has held that the mere change in the name of the company, which is a legal entity in itself
shall not justify any invocation of the stamp duty, which is leviable upon transfer of property.
In light of the aforesaid observations, the present writ petition is allowed, and the impugned order dated 27.05.2016 passed by the Collector
(Stamp), Circle, Jodhpur, Jodhpur in Stamp Case No.40/2014 is quashed and set aside, being illegal, arbitrary and ultra-vires of the Rajasthan Stamp
Act, 1998. However, the necessary corollary of this order shall be that any order passed by the respondents in consequence of the impugned order
shall be restored in favour of the petitioner.