Corporate Law Daily – Editorial Team
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The Govt. has notified Companies (Management and Administration) Amendment Rules, 2022. As per the amendment rules, a new sub-rule (3) has been inserted into Rule 14 to provide that certain particulars of Registers, Index or Return of a member of a company namely a) Address/registered address (in case of a body corporate) b) e-mail ID c) Unique Identification Number d) PAN Number shall not be made available for inspection. Further, taking extracts or copies under sub-section (3) of Section 94 of the Companies Act 2013 is also not allowed. ?
As per Section 94 (2) of the Companies Act, 2013, Companies are required to keep registers and their indices open (except when they are closed under the provisions of this Act) for inspection by any member, debenture-holder, another security holder, or beneficial owner, during business hours without payment of any fees and by any other person on payment of such prescribed fees. ?
Further, Section 94(3) empowers any such member, debenture-holder, other security holder or beneficial owner, or any other person to take extracts from any register, or index, or return without payment of any fee, or require a copy of any such register or entries therein or return on payment of such prescribed fees. ?
Comments: ?
Details such as e-mail id, address, PAN, and UID are highly confidential and personal in nature. Open disclosure of the same is prone to misuse. As we see that PAN details are used by miscreants to carry out fraudulent transactions such as obtaining loans, opening bank accounts e.t.c. or carrying out bogus transactions. The amendment is a welcome step and was much needed to protect the privacy of members, debenture holders, etc. ?
In the instant case, the Company Court sanctioned the scheme of amalgamation of transferor company 'U' with transferee company 'B. ?
In view of the definition of the term, 'Conveyance' in section 2(g)(iv) of the Gujarat Stamp Act, the order of the Court was liable to payment of stamp duty in respect of properties and assets of the transferor company conveyed to and in name of the transferee company. ?
The Copy of the order was to be presented before the Stamp Authorities for purpose of stamp duty within one year therefrom and since, said order was presented after one year, Stamp Authorities passed an order directing transferor-company to make payment of deficit stamp duty and penalty. ?
The Single Judge held that sanctioning of the scheme of amalgamation was subject to the approval of BIFR which was accorded on 7-6-2005 and thus, presentation of the order of Company Court on 23-2-2006 was within the time limit and therefore, the impugned order of Stamp Authorities was to be set aside, consequences including a refund of the amount already paid by transferor would follow. ?
The Supreme Court, in Hindustan Lever v. State of Maharashtra [2003] 48 SCL 630 in the context of section 2(g)(iv) has held that the transfer is effected by an order of the Court and the order of the Court sanctioning the scheme of amalgamation is an instrument which transfers the properties and would fall within the definition of section 2(l) of the Bombay Stamp Act, which includes every document by which any right or liability is transferred. By the said instrument the properties are transferred from the transferor to the transferee company. ?
In the said case, it was further held that the order of the court was liable to stamp duty as it resulted in transferring the property and that the order of the court which results in a transfer of the property would be an instrument as it includes every document ?
In Li Taka Pharmaceuticals Ltd. v. State of Maharashtra [1996], 8 SCL 102 a division bench of the Bombay High Court had held that an order under section 394 is found or based upon compromise or arrangement between the two companies of transferring assets and liabilities of one company to another company. The order is an 'instrument' as defined under section 2(l) of the Bombay Stamp Act which includes every document by which any right or liability is transferred. ?
Therefore, as the scheme of arrangement or amalgamation has no effect or force unless or until it was sanctioned by the Court, it is the order sanctioning the scheme that would be an instrument under section 2(l). ?
In view of the above-cited landmark rulings, the Apex Court held that on facts, there was no good reason to disturb a well-reasoned order passed by a Single Judge.
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