Capital Gain
This query is : Resolved
01 September 2010
Section 47(xiii)
Where a firm is succeeded by a company in the business carried on by it as a result of which the firm sells or otherwise transfers any capital asset or intangible asset to the company :
Provided that - (a) All the assets and liabilities of the firm relating to the business immediately before the succession become the assets and liabilities of the company;
(b) All the partners of the firm immediately before the succession become the shareholders of the company in the same proportion in which their capital accounts stood in the books of the firm on the date of succession;
(c) The partners of the firm do not receive any consideration or benefit, directly or indirectly, in any form or manner, other than by way of allotment of shares in the company; and
(d) The aggregate of the shareholding in the company of the partners of the firm is not less than fifty per cent of the total voting power in the company and their share holding continues to be as such for a period of five years from the date of the succession;
So here in this case only a new company can succeed the parnership firm or an old co can also do so?
Where a firm is succeeded by a company in the business carried on by it as a result of which the firm sells or otherwise transfers any capital asset or intangible asset to the company :
Provided that - (a) All the assets and liabilities of the firm relating to the business immediately before the succession become the assets and liabilities of the company;
(b) All the partners of the firm immediately before the succession become the shareholders of the company in the same proportion in which their capital accounts stood in the books of the firm on the date of succession;
(c) The partners of the firm do not receive any consideration or benefit, directly or indirectly, in any form or manner, other than by way of allotment of shares in the company; and
(d) The aggregate of the shareholding in the company of the partners of the firm is not less than fifty per cent of the total voting power in the company and their share holding continues to be as such for a period of five years from the date of the succession;
So here in this case only a new company can succeed the parnership firm or an old co can also do so?
02 September 2010
Transfer can be made to an existing company as well.
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02 September 2010
sir, then what will be the procedure for the same...? i mean to say then MOA & AOA will have to be altered and what will be the clause inserted and what other formalities have to be complied with..? please guide me...
02 September 2010
First Check up, whether the Objects clause of MOA of the company permits the carrying on the business of the partnership. If not, then the Objects clause is to be first amended by the insertion of the objects pertaining to the new business. The Special Resolution in the Meeting of the Shareholders is to be passed. The Provisions relating to the 21 days prior Notice to the Shareholders before GM is to be kept in mind. File E-form 23 with ROC within 30 days of the passing of the resolution. Remember, this 30 days time limit is to be strictly complied as otherwise, CLB permission is to be taken by way of filing petition as per sec. 18(4) of the companies Act,1956
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02 September 2010
I totally endorse the view of Mr.Sanjay Talati. The issue has been properly dealt with by him.
02 September 2010
thanx a lot sir..
02 September 2010
just one more thing sir, if the partner was having a property of 1 crore as his capital in the firm and when it is taken over by company then it was revalued to 3 crore then any other provision will be applicable or not...?
02 September 2010
Pl. refer to section 47(xiii) which is relevant for the issue under consideration. Only the conditions laid down in sub clauses (a) to (e) are to be fulfilled. They are all the assets should be transferred b)the partners of the firm should not receive any other consideration, other than allotment of shares in tune with the value of assets transferred c) all the partners of the erstwhile firm should become share holders of the company d) the shares allotted and the pattern of allotment ought not to be changed for 5 years e)the corporatisation should be in accordance with the scheme as approved by SEBI. In view of this, there is no bar in the revaluation of property. But the only condition shares of the value of the asset equal to more than 51% of voting power should be allotted to the partners of the firm.
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