WP-7496-2023.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 7496 OF 2023

Schae�er India Ltd.

(Formerly FAG Bearings India Ltd. )

A company incorporated under the

Companies Act, 1956, having its Registered

o�ce at 15

th

Floor, ASTP Amar Sadanand

Tech Park Plot No.3, Baner, Pune-411045.

]

]

]

]

]

]...Petitioner

Versus

1) Chief Controlling Revenue Authority,

Pune, Maharashtra, having his o�ce at

the o�ce of the Inspector General of

Registration & Controller of Stamps,

Pune, New Administration Building,

Ground Floor, Opp. Council Hall, Pune-

411 001

]

]

]

]

]

]

]

2) Collector of Stamps (Enforcement-I)

Mumbai, having his o�ce at General

Stamp O�ce, Ground �oor, Old Custom

House, Shahid Bhagat Singh Road, Fort,

Mumbai 400 001

]

]

]

]

]

3) State of Maharashtra

through the

Additional Government Pleader (A.S.)

High Court, Bombay, having o�ce at

PWD Building, Ground �oor,

Dr. Kane Marg, Mumbai 400 032

]

]

]

]

]

]...Respondents

Mr. Nikhil Sakhardande a/w Mr. Dhaval Shethia, Ms. Na�sa

Khandeparkar, Ms. Mrudula Dixit i/b AZB & Partners, for the Petitioner.

Mr. O. A. Chandurkar, Addl GP a/w Ms. Tanu Bhatia, AGP, for the State.

CORAM : SHARMILA U. DESHMUKH

RESERVED ON : JANUARY 30

th

,2026

PRONOUNCED ON : FEBRUARY 18

th

, 2026

--------------

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JUDGMENT:

1.Rule. With consent, Rule made returnable forthwith and taken up

for �nal disposal.

2. Vide judgment dated 20

th

January, 2026, this Court had allowed

the Petition setting aside the impugned order dated 25

th

March, 2019

and 12

th

September, 2022. Subsequently, an Interim Application was

moved seeking expunging of paragraphs 7, 13, 20, and 21 of the

judgment dated 20

th

January, 2026. The paragraphs sought to be

expunged recorded the submissions of Mr. Sakhardande, learned senior

advocate for the Petitioner that the National Company Law Tribunal,

Chennai (for short ‘NLCT, Chennai’) order was lodged for adjudication in

Chennai and stamp duty has been accordingly paid in Chennai and the

�ndings of this Court on the said submissions.

3. This Court in earlier round of litigation had supported its �ndings

by taking into consideration that the adjudicating authorities in

Maharashtra cannot assess the stamp duty leviable on the NCLT,

Chennai order as necessary stamp duty on the sanctioned order of NCLT

Chennai Bench had already been paid. Though Mr. Sakhardande would

submit that the said paragraphs are severable from the rest of the

judgment, after hearing Mr. Sakhardande and learned AGP, this Court

thought it �t to recall the order of 20

th

January, 2026 and hear the

matter afresh. Accordingly, the order of 20

th

January, 2026 was recalled

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and matter was heard afresh.

FACTUAL MATRIX:

4. Brie�y stated the facts of the case are that by the impugned

orders dated 12

th

September, 2022 and 25

th

March, 2019, the

Respondent Nos 1 and 2 had assessed the stamp duty of Rs. 50,00,000/-

on the instrument lodged for adjudication, which was the order of

National Company Law Tribunal, Mumbai Bench (for short “ NCLT,

Mumbai”) dated 8

th

October, 2018 sanctioning a composite scheme of

amalgamation of INA Bearings India Private Limited (for short “INA

Bearing”) and LuK India Private Limited (for short “LuK India”) with the

Petitioner Company under the provisions of Section 230 to 232 of the

Companies Act, 2013.

5. The scheme of amalgamation proposed the transfer of entire

business of LuK India and INA Bearings to the Petitioner as a ‘going

concern”, in consideration whereof the Petitioner was to issue equity

shares to the shareholders of INA Bearings and LuK India priced at INR

5,853 per share. As LuK India was based in Hosur, Tamil Nadu, Company

Petition came to be �led before NCLT, Chennai Bench, which had the

jurisdiction to sanction the scheme qua LuK India. NCLT, Chennai Bench

sanctioned the scheme vide order dated 13

th

June, 2018. The Petitioner

and INA Bearings being located in Maharashtra �led similar Company

Petition before NCLT, Mumbai Bench, which sanctioned the scheme vide

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order dated 8

th

October, 2018. The order of 8

th

October, 2018 of the

NCLT, Mumbai bench directed lodging of the certi�ed copy of the order

alongwith the copy of the Scheme for adjudication.

6. In pursuance thereof, the Petitioner lodged the order of sanction

dated 8

th

October, 2018 for adjudication on 27

th

November, 2018

accompanied by an a�davit of the Company Secretary of the Petitioner

setting out the necessary details of the sanctioned scheme, including

the shares allotted and the share price along with all supporting

documents. An interim order was passed on 19

th

January, 2019 for

payment of stamp duty of Rs. 50,00,000/- and the �nal order was passed

on 25

th

March, 2019 holding that the scheme consists of two di�erent

transactions and stamp duty was to be paid separately. The order relied

upon the stamp duty noti�cation dated 6

th

May, 2002, which capped the

maximum duty payable at Rs. 25,00,00,000/- and accordingly, the stamp

duty was adjudicated at Rs. 50,00,00,000/ considering the instrument to

comprise of two di�erent transactions. Being aggrieved by the order,

the Petitioner �led an appeal before the Respondent No. 1 under

Section 53 (1A) of the Maharashtra Stamp Act, 1958 (for short “Stamp

Act, 1958”) and the impugned order dated 25

th

March, 2022 con�rmed

the Respondent No. 2’s order dated 25

th

March, 2019. Hence, the

present petition.

SUBMISSIONS:

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7. Mr. Sakhardande would submit that Section 3 of the Stamp Act,

1958 contemplates payment of stamp duty on instrument and not the

underlying transaction, which instrument in the present case is the

order of NCLT Mumbai and not the scheme of amalgamation. He

submits that the order of NCLT, Mumbai sanctioned one composite

scheme of amalgamation and while doing so observed about the

consideration payable to the share holders of both the transferor

companies. He submits that the assessment of stamp duty on two

underlying transactions of amalgamation would amount to the scheme

of amalgamation being charged with stamp duty and not the

instrument.

8. He submits that the issue is no longer res integra and stands

decided in Chief Controlling Revenue Authority, Pune And Another

vs Reliance Industries Limited, Mumbai And Another

1.

He submits

that the decision holds that the scheme of Stamp Act, 1958 is based on

chargeability of instrument and not on transactions and it is immaterial

whether it is pertaining to one and same transaction. He submits that

applying the principle of law laid down in the said decision to the

present case, it is immaterial whether the order of NCLT, Mumbai

pertains to one transaction or di�erent transactions, even accepting

without prejudice, the contention that NCLT, Mumbai while passing the

order has considered the consideration payable to the seco nd

1 2016 SCC Onl Bom 1428

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transferor company LuK India Private Limited (for short “LuK India”). He

submits that the decision of the Gujarat High Court in the case of

Ambuja Cement Limited vs Chief Controlling Revenue Authorit y

2

covers the issue in hand and even if the same is not binding has

persuasive value. He submits that the Gujarat High Court in a detailed

decision has held that treating the transaction as a distinct transaction

and demanding separate stamp duty is in con�ict with the true import

and meaning of Section 5 of Stamp Act, 1958. He submits that in the

present case, it is a precise application of Section 5 of the Stamp Act,

1958 which has led to the stamp duty being levied on the underlying

transactions as two distinct transactions ignoring settled principle of

law that it is the instrument which is chargeable.

9.Per contra, learned AGP has drawn attention of this Court to

Section 5 of the Stamp Act, 1958 as well as order of NCLT, Mumbai to

contend that NCLT, Mumbai had considered the composite scheme

which included the amalgamation of INA Bearing with the Petitioner

company as well as the amalgamation of LuK India with the Petitioner

company, and therefore, the same constituted two di�erent

transactions. He submits that having accepted that the order of NCLT,

Chennai was not lodged for adjudication at Chennai, and no stamp duty

has been paid in Chennai, the impugned order rightly holds that there is

no payment of stamp duty on the merging of second transfero r

2 C/SR/1/2020 decided on 10/02/2023 by Gujarat High Court

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company. He has taken this Court through the provisions of Section 2(g)

(iv) of the Stamp Act, 1958 to contend that by reason of order of NCLT

Mumbai, the order of NCLT, Chennai has been brought in Maharashtra

State and order of sanction by NCLT, Mumbai is based on order of NCLT,

Chennai.

10. Upon query by this Court as to whether in such event, if the stamp

duty would have been paid on the order of NCLT, Chennai, the Petitioner

herein would be entitled to rebate under Section 19 of Stamp Act, 1958,

learned AGP submits that Section 19 would apply and the Petitioners

would be entitled for rebate. He submits that the Petitioner’s registered

o�ce is in Maharashtra and as the implementation of the scheme is in

Maharashtra, it would give jurisdiction to the Maharashtra stmap

authorities to levy stamp duty on NCLT, Chennai order.

11. In rejoinder, Mr. Sakhardande would submit that Section 232 of the

Companies Act, 2013 permits amalgamation of multiple companies and

Mumbai authorities would not have jurisdiction to assess stamp duty on

NCLT, Chennai order.

REASONS AND ANALYSIS:

12. The core issue which arises for consideration is as regards

applicability of Section 5 of the Stamp Act, 1958 to the order of NCLT

sanctioning the scheme of amalgamation under the statutory provisions

of Section 230 to 232 of the Companies Act, 2013. Section 232 of the

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Companies Act, 2013 governs the merger and amalgamation of

company and permits compromise or arrangement which would involve

merger or amalgamation of any two or more companies.

13. Section 2(g)(iv) of Stamp Act, 1958 provides that the order of NCLT

passed under Section 230 to 234 of the Companies Act, 2013 is

conveyance by which property is transferred. Section 3 of the Stamp

Act,1958 speci�es the instruments chargeable with the amount of duty

indicated in Schedule I. Section 2(l) de�nes instrument to include every

document by which any right or liability is or purports to be created,

transferred, limited, extended, extinguished or recorded. Article 25 (da)

of Schedule I of the Stamp Act, 1958 governs the stamp duty payable on

the order of National Company Law Tribunal passed under Section 230

to 234 of the Companies Act, 2013 in respect of the amalgamation,

merger, demerger, arrangement or reconstruction of companies. Article

25(da) makes a mention of order of NCLT in respect of amalgamation,

mergers etc. Conjoint reading of Section 2(g)(iv) with Article 25(da)

gives a clear indication that the statutory provisions of Stamp Act, 1958

recognizes that it is the order of NCLT, which is chargeable with duty.

14. The Respondent No. 1 has observed that the assessment has been

done by the Respondent No 2 by considering that in present case, two

di�erent transferor companies had �led petition before NCLT, Mumbai,

however the Tribunal in both the Petitions has passed common order

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and as there is amalgamation of the Petitioner with two transferor

companies, the same constitutes separate and distinct transactions

under Section 5 of Stamp Act, 1958, which was correct application. It

holds that even if the order of NCLT, Mumbai is one order, by the

scheme of amalgamation, two di�erent companies are amalgamated

with the Petitioner Company and even if for technical reasons or to

restrict the arguments one order is passed, the assessment is required

to be done by applying Section 5 of the Stamp Act, 1958.

15. The impugned order is �awed as there is factual error in as much

as it proceeds on the basis that there were two company petitions �led

by NCLT, Mumbai and common order was passed in separate company

petitions for technical reason and for restricting arguments. It

erroneously holds that as per the scheme of amalgamation there are

two di�erent transferor companies amalgamating with the Petitioner

company and constitutes two di�erent transactions. The impugned

order is also legally unsustainable as it assesses the stamp duty payable

on the underlying transaction and not the order of NCLT, Mumbai which

is the instrument to be assessed for purpose of stamp duty.

16. The proposed scheme was a composite scheme of amalgamation

of two companies i.e. INA Bearings and LuK India with the Petitioner

company. As NCLT, Mumbai had no jurisdiction over LuK India which was

situated within the jurisdiction of NCLT, Chennai Bench, there were two

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petitions �led seeking sanction: one with NCLT, Mumbai which had

jurisdiction over INA Bearings and the Petitioner Company and the other

application was �led with NCLT, Chennai having jurisdiction over LuK

India. The sanction was sought from NCLT, Mumbai and Chennai Bench

to the same composite scheme. NCLT, Mumbai noted that similar

application was �led with NCLT, Chennai in respect of LuK India which

has been sanctioned on 13

th

June, 2018. NCLT, Mumbai Bench

considered the arrangement proposed by the scheme and opined that

the scheme of merger by absorption appears to be fair and reasonable.

In clause (a) of paragraph 9 of order dated 8

th

October, 2018, NCLT,

Mumbai directed that all assets and liabilities of the 1

st

Transferor

Company i.e. INA Bearing shall be transferred to and become the

liabilities and duties of the transferee company. In clause (c) of

paragraph 9, NCLT, Mumbai ordered issuance of shares in the transferee

company to the share holders of INA Bearings and LuK India. The order

of NCLT, Chennai Bench dated 13

th

June, 2018 notes that under the

proposed scheme, the Petitioner Company is to issue and allot the

shares to shareholders of LuK India, which was also noted in the order

of NCLT, Mumbai Bench.

17. Learned AGP would support the impugned order by contending

that the NCLT, Chennai order has been brought in Mumbai by reason of

the observations in NCLT, Mumbai order as regards the consideration

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and transfer of shares to shareholders of LuK India. The impugned

order does not record any such �nding which proceeds on an erroneous

basis that two petitions were �led in NCLT, Mumbai and common order

was passed. What is lodged for adjudication is the NCLT, Mumbai order

and it is the order of sanction of NCLT, Mumbai which constitutes the

instrument for purpose of assessment of stamp duty. It is the NCLT,

Mumbai order which originated in Mumbai and was lodged for

adjudication.

18. In Chief Controlling Revenue Authority, Pune And Another vs

Reliance Industries Limited, Mumbai And Another (supra), the

Hon’ble Full Bench was considering a similar situation where by order of

Gujarat High Court and Bombay High Court, the same scheme of

amalgamation came to be sanctioned. The order from both the High

Courts as one of the companies was situated within the jurisdiction of

Gujarat State, stamp duty was paid in the State of Gujarat on the order

passed by the High Court of Gujarat and the order of Bombay High

Court was lodged for adjudication. Considering that the sum of Rs.

10,00,00,000/- was already paid in the State of Gujarat on the order

passed by Gujarat High Court, the Company sought

remission/deduction/set o� in the payment of stamp duty to the extent

of Rs. 10,00,00,000/- which came to be rejected. Before the Hon’ble full

bench one of the issues which was referred was as under :

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“(4) Whether for the purpose of section 19 of the Act the

scheme/compromise/arrangement between the two

Companies must be constructed as document executed

outside the state on which the stamp duty is legally

levied, demanded and paid in another State ?”

19. The Hon’ble full bench held in paragraph 21 and 31 as

under :

“21. Although the two orders of two di�erent high Courts are

pertaining to same scheme they are independently di�erent

instruments and can not be said to be same document especially

when the two orders of di�erent high Courts are upon two

di�erent petitions by two di�erent companies. When the

scheme of the said Act is based on chargeability on instrument

and not on transactions, it is immaterial whether it is pertaining

to one and the same transaction. The duty is attracted on the

instrument and not on transaction.

31. Therefore the contentions of the respondents that the

Scheme of Amalgamation would be an instrument within the

meaning of Section 2(l) of ths aid Act id not legally sustainable.

The Scheme of Amalgamation by itself cannot and does not

result in transferring the property. It is the order of the Court

that sanctions such a Scheme of Amalgamation results in

transferring the property and it is therefore this Order alone

would be an ‘instrument’ as de�ned by the said Act on which

stamp duty is chargeable. Therefore the contentions of the

respondents that the parties were liable to pay stamp duty on

the sanctioned Scheme read with the two Orders is not correct

and cannot be accepted.”

20. The Hon’ble Full Bench was considering an identical fact situation

as the rebate was sought on the ground that the order of Gujarat High

Court is to be construed as instrument brought in this State. The

Hon’ble High Court negated the contention and held that even if there

are two orders pertaining to the same scheme, in essence, the orders

are independent di�erent instruments and cannot be said to be same

document when the two orders are based on two di�erent petitions by

two di�erent companies. It held that it is immaterial whether it is

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pertaining to one and same transaction as the duty is attracted on the

instrument and not the transaction. In e�ect, it was held that it is not

permissible to look into the underlying transaction for assessing the

stamp duty.

21. The issue no. 4 was answered as under:

“Basically a scheme/comprises/arrangement between two

companies is never a document chargeable to stamp duty

whether such document is executed in the state or outside

the state of Maharashtra. Moreover, in view of the

conclusions above Section 19 of the Stamp Act, 1958 in

any event, has no application whatsoever.”

22. The said decision is su�cient answer to the contention raised by

learned AGP. The impugned order by applying Section 5 of Stamp Act,

1958 seeks to assess the underlying transaction which is impermissible

as it is the order of NCLT, Mumbai which constitutes the instrument.

Applying the enunciation of law by Hon’ble Full Bench, it is immaterial

whether the scheme of amalgamation pertains to amalgamation of one

company or of two companies in one company. It is the order of sanction

of scheme which constitutes conveyance. Further, the consequence of

accepting the contention that order of NCLT, Chennai is instrument

executed outside the State and brought within the State would result in

applying Section 19 of Stamp Act, 1958, a course speci�cally negated by

the Hon’ble Full Bench.

23. The provisions of Section 5 of the Stamp Act, 1958 applies, where

one instrument relates to several distinct matters of transactions which

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cannot be blended into one or cannot be conceived as merely parts of

one aggregate. It applies where the instrument comprises of several

distinct matters, though may be of same category and where Section 5

applies, each of the instruments dealing with each of the matter would

be chargeable under the Stamp Act, 1958 by the aggregate amount of

stamp duty in respect of all such instruments. The application of Section

5 requires going into the underlying transaction which cannot be done

in respect of order of sanction of scheme.

24. The composite scheme was considered by NCLT, Mumbai Bench for

ascertaining whether the same was fair and reasonable. In that context,

the consideration in respect of the share holders of the second

transferrer company i.e LuK India was noted. A similar exercise was

carried out by NCLT, Chennai which also noted the consideration of

issuance of shares to share holders of LuK India by the Petitioner

Company. The observations of NCLT, Mumbai as regards the

consideration in respect of amalgamation of LuK India does not

constitute a distinct transaction within the meaning of Section 5 of the

Stamp Act, 1958 or amounts to bringing the order of NCLT, Chennai in

this State.

25.In Ambuja Cements Limited vs Chief Controlling Revenue

Authority (supra), the Gujarat High Court was considering the stamp

references made by the Chief Controlling Revenue Authority of Gujarat

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State in respect of stamp duty payable on scheme of amalgamation.

One of questions considered was as under:

“46. Assuming that an order of the High Court under

Section 232 of Companies Act, 1956 sanctioning a

single composite scheme of arrangement, albeit

between multiple companies, is an instrument

comprising or relating to several distinct matters or

distinct transactions, whether as per Article 20(d) of

Schedule I to the Stamp Duty Act, stamp duty

chargeable on such an order would not be calculated

on the aggregate of amount pertaining to each of such

distinct matters and is subjected to a maximum cap of

Rs 25 Crores?”

26. The Hon’ble Full Bench considered the various provisions including

Section 5 of the Stamp Act. It noted the decision of the Hon’ble Apex

Court in The Member, Board of Revenue vs Arthus Paul Benthall

3

,

where the Hon’ble Apex Court had held that if a number of persons join

in executing one instrument, and there is community of interest

between them in the subject matter comprised therein, it will be

chargeable with a single duty. It held in paragraph 112 as under:

“112. As such treating the said transaction as distinct

transaction and thereby demand separate stamp duty

appears to be in con�ict with the true import and meaning of

Section 5 of the Stamp Act. A conjoint reading of the

principals enunciated in the afore-mentioned cases by the

Hon’ble Apex Court, we are of the opinion that neither the

scheme of amalgamation or reconstruction sanction by

Company Court in exercise of the powers vested under

Section 394 of the Companies Act, 1956 or Section 232 (2013

Act) can be brought within the sweep of Section 5. if such

interpretation were to be accepted, it would run counter to

the literal meaning of �scal statute and as such reference will

have to be answered against the Revenue and in favour of the

Subject.”

3 AIR 1956 SC 35

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27. This Court is in agreement with the decision of the Gujarat High

Court as regards the non applicability of Section 5 of the Stamp

Act,1958 to the order of sanction to the scheme of amalgamation.

28. Even accepting that the order of sanction of scheme of NCLT

Chennai bench has not been lodged for adjudication in Chennai and

there is no payment of stamp duty, the stamp authorities in Mumbai

would not have the jurisdiction to assess the stamp duty on the NCLT,

Chennai order as it is not an order which is originating in Maharashtra.

The provisions of Section 19 envisages an instrument executed outside

State in respect of the property in the State and subsequently received

in the State of Maharashtra. As the order of the NCLT, Chennai bench

has not been received in Maharashtra, the mere reference to the same

in the NCLT Mumbai order would not amount to that instrument of NCLT

Chennai being brought in the State of Maharashtra. Whether the duty

has been paid on the NCLT Chennai order is an issue to be considered by

the concerned authorities in Chennai and the same is immaterial for the

purpose of assessing the stamp duty on the order of NCLT, Mumbai

bench.

29. The impugned order assessing the stamp duty on the transactions

of merger with INA Bearings and LuK India by considering the two

transactions as separate and distinct transactions is clearly erroneous in

view of the settled legal position. The impugned order seeks to levy the

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stamp duty on the transaction by segregating the transactions into two

di�erent transactions : one of amalgamation of INA Bearings with

Petitioner and other of LuK India with the Petitioner. As held by the

Hon’ble Gujarat High Court in Ambuja Cements Limited vs Chief

Controlling Revenue Authority (supra), such reconstruction cannot be

inter se segregated.

30. In light of the above, the impugned orders dated 25

th

March, 2019

and 12

th

September, 2022 are hereby quashed and set aside. The

Petitioners are liable to pay stamp duty on the instrument being the

order of National Company Law Tribunal, Mumbai dated 8

th

October,

2018 under the provisions of Article 25 (da) of the Stamp Act, 1958 with

the cap of Rs. 25,00,00,000/-. As the amount has already been paid

under protest by the Petitioner, the Respondent Nos. 1 and 2 to refund

the excess stamp duty of Rs. 25,00,00,000/- within a period of 8 weeks

from the date of uploading of this order on the website. In the event,

the amount is not refunded within the period of 8 weeks, the same to

carry interest at the rate of 6%p.a. till payment of realization.

31. The Petition is allowed in the above terms. Rule is made absolute.

32. In view of the same, nothing survives for consideration in the

Interim Application. The Interim Applications stands disposed of.

(SHARMILA U. DESHMUKH, J.) [

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