• Kindly answer these very clearly and to the point. Highly appreciated.

State: Himalayan state in India

My four cousins and I hold some ancestral agricultural land (titles in all our names).

We live in the city and would like to create a company to hold this land instead - so we don't have to DIVIDE the property (kurre katna) and rent / lease it or sell it via transferring shares in the company we will create. 

Im trying to figure the following and nothing BUT the following: 

1. Will stamp duty be due when capital injecting/infusing the land whose title is in our name in to our company title. Does it take a transfer deed? 

2. When we sell shares to our friend in this company, will HE then be paying any kind of stamp duty? AND why will he when he is only buying shares?

3. Can any Govt body come after us for ANYTHING and ON WHAT LEGAL BASIS can they come after us? Indeed some of the largest resorts in Uttarakhand are all company owned and now all are on sale. Land goes with those resorts on sale BTW. So surely poor farmers can also constitute companies and hold their land within the company structure! Surely they have a right to sell shares in the company to another Citizen of the Republic of India? BTW there are no obligations, liens or anything of the sort on the land. We just dont want to take on the encumbrance of DIVIDING the property and secondly want to sell shares slowly to friends - and hence creating the company. 

4. I Only see the stamp duty issue - so that can be paid - BUT HOW can my friend pay stamp duty when he is just buying a share or two here and there. 

Kindly only answer along the lines. If the answer is not feasible please delete my question and kindly refund. 

THANKS.
Asked 4 years ago in Business Law

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6 Answers

1) company is separate legal entity 

 

2) stamp duty has to be paid when land is transferred from individual to company name 

 

3) 

Pursuant to Section 56 of the 2013 Act, on final acceptance of offer for purchase of shares by the transferee; the transferor or the transferee has to deliver the instrument of transfer in Form SH 4 as specified in Rule 11 of the Companies (Share Capital & Debentures) Rules, 2014 along with the Share Certificate or Letter of Allotment (if the certificate is not in existence) within 60 days from the date of execution.

4) Form SH 4 should be duly filled, stamped, signed and certified by/on behalf of the transferor and by/on behalf of the transferee containing all the detailed as required therein. The signatures of both the parties are also required to be personally witnessed.

5) To be called valid, it should also bear stamps in accordance with Indian Stamp Act, 1899 read with the Notification of Ministry of Finance, Department of Revenue dtd. 24thJanuary, 2004. The rate of duty is 25 paise for every Rs. 100 (0.25%) or part thereof of the “Value of Shares”.

Ajay Sethi
Advocate, Mumbai
96994 Answers
7833 Consultations

The property you hold on your name shall remain on your names alone and shall not be included into the company's assets until you have transferred the property to company by a sale deed or any other registered deed in favor of the company.

2. If you sell the share in the property to the company then the company has to pay the stamp duty as applicable for this registered transaction.

3.  in cases of provisional allotments of immovable property, the property does not pass on to the company until the sale deed is executed and registered. Consequently, prior to that stage, the right, title, ownership and interest in the property vests solely in the actual owner in whose favour the title deeds exist, and with whom the Company has executed the Agreement for Sale. Such owner is free to deal with the property till the execution and registration of the sale deed. The owner may even sell the property to a third party, in the event that the company breaches any of the material terms of the agreement for sale. Cancellation / termination of such agreement for sale and consequent sale to a third party in case of breach by the company cannot be challenged under Sections 334 and 335 of the Act on the ground that such sale / transfer / cancellation has been carried out without obtaining the leave of the Court. The leave of the Court is only to be obtained in cases of disposition and sale of 'property of the company', which a provisional allotment is not.

Section 56 of Companies Act 2013 provides that the transfer of shares of the company and other securities will be registered by a company only when a proper instrument for transfer of shares (share transfer form) is filed as prescribed in Form No. SH 4. You need to duly stamp the SH 4 format for transfer of share with adequate value and date. Also, one can execute it by or on behalf of the transferor and the transferee. One needs to send Form SH 4 to the company by the transferor or the transferee of the shares within 60 days from the date of execution, of the share transfer agreement. 

4. One has to duly stamp the share transfer form, Companies Act 2013 says so. It also adds that the stamp should have adequate value with the date. Also, it should be cancelled in accordance with Section 12 of the Indian Stamp Act (2), when you have to send the share transfer form is to be sent to the board of directors. The seller of the shares has to pay the stamp duty at the rate of Rs 0.25 for every Rs. 100 worth of shares. For stamping purpose in a transfer of shares special adhesive stamps having the word ‘share transfer’ shall be used. Section 8A of the Indian Stamp Act provides that for the electronic share transfer form, India. You can pay the stamp duty on the total amount of issuing the shares or securities.

 

T Kalaiselvan
Advocate, Vellore
87197 Answers
2342 Consultations

1) company is distinct legal entity separate from its shareholders 

 

2) stamp duty has to be paid on transfer of land from individual to company 

 

3) transfer of land would be via sale deed and not gift deed 

Ajay Sethi
Advocate, Mumbai
96994 Answers
7833 Consultations

1. The transfer of property has to be mandatorily registered by paying applicable stamp duty otherwise the transfer of property from you to company is not legally valid. 

You cannot take law into your hands or can think of flouting the law to your convenience. 

2. The transfer of property without a registered deed is not legally valid. 

Hence the same cannot be legally transferred by the company to your friends at a later stage without the company having title to the property. 

T Kalaiselvan
Advocate, Vellore
87197 Answers
2342 Consultations

Yes it's legal but if needed you need to pay applicable stamp duty for deed

Prashant Nayak
Advocate, Mumbai
32496 Answers
201 Consultations

If 5 people having undivided share in certain land form a company and then bring that land as capital into the company, then prima facie no stamp duty would be payable. 

Capital can be brought into a company in cash or in kind (that is by way of a property)

This also happens in partnership when partners bring their own properties into the partnership business as their share of capital contributions which then becomes the asset of the partnership 

However when the company sells its shares, share transfer forms will have to be made on which stamp duty will be payable depending on the quantum and value of the shares transferred 

You need to mellow down and relax. The tone of your question is highly inappropriate 

If you want a refund then ask the platform to give you back your money. None of the lawyers who answer queries here are paid even a single naya paisa and the fees/charges you pay are kept exclusively by the platform. 

The lawyers answer on an honorary basis just to give a basic idea to the querist. For detailed analysis of your query you can approach a competent lawyer and have a proper legal consultation 

Yusuf Rampurawala
Advocate, Mumbai
7695 Answers
79 Consultations

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