Section 15
Section 15
If in connection with a scheme for the reconstruction of any company or companies or the amalgamation of any companies it is shown to the satisfaction of the Collector that there exist the following conditions, that is to say:
(a)
that a company with limited liability has been registered within six months before the commencement of this Act, or that a company with limited liability is to be registered, or that since the commencement of this Act a company has been incorporated by special written law, or that since the commencement of this Act or within six months before the commencement thereof the issued share capital of a company has been increased;
(b)
that the company (in this section referred to as “the transferee company”) is to be registered in Malaysia or has been incorporated in Malaysia or has increased its capital with a view to the acquisition either of the undertaking of, or of not less than ninety per centum of the issued share capital of, any particular existing company;
(c)
that the consideration for the acquisition (except such part thereof as consists in the transfer to or discharge by the transferee company of liabilities of the existing company)
consists as to not less than ninety per centum thereof—
(i)
where an undertaking is to be acquired, in the issue of shares in the transferee company to the existing company or to holders of shares in the existing company; or
(ii)
where shares are to be acquired, in the issue of shares in the transferee company to the holders of shares in
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the existing company in exchange for the shares held by them in the existing company;
then, subject to this section, stamp duty under Item 32(a) or (b) in the
First Schedule shall not be chargeable on any instrument made for the purposes of or in connection with the transfer of the undertaking or shares:
Provided that—
(a)
no such instrument shall be deemed to be duly stamped unless—
(i)
the instrument is stamped with the duty to which it would but for this section be liable; or
(ii)
a return is furnished together with the instrument to the Collector in accordance with section 35A, and the instrument is assessed under paragraph 36(1)(b) and the Collector has certified under section 37 either that the full duty with which the instrument is chargeable has been paid, or that the instrument is not chargeable with duty; and
(b)
in the case of an instrument made for the purposes of or in connection with a transfer to a company within the meaning of the *Companies Act 1965 the provisions of this subsection shall not apply unless the instrument is either—
(i)
executed within a period of twelve months from the date of the registration of the transferee company or the date of the resolution for the increase of the issued share capital of the transferee company, as the case may be; or
(ii)
made for the purpose of effecting a conveyance or transfer in pursuance of an agreement which has been filed, or particulars of which have been filed, with the
*NOTE—The Companies Act 1965 [Act 125] has been repealed by the Companies Act 2016 [Act 777]
—see section 620 of Act 777.
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Registrar of Companies within the said period of twelve months.
(2)
(Deleted by Act 851).
(3)
A company shall not be deemed to be a particular existing company within the meaning of this section unless it is provided by the memorandum of association of, or written law incorporating, the transferee company that one of the objects for which the company is established is the acquisition of the undertaking of, or shares in, the existing company, or unless it appears from the resolution, or other authority for the increase of the capital of the transferee company that the increase is authorized for the purpose of acquiring the undertaking of, or shares in, the existing company.
(4)
Where a claim is made for exemption under this section, the
Collector may require the delivery to him of a statutory declaration in such form as he may direct made by an advocate and solicitor, or, in the case of Sabah and Sarawak, an advocate, of the High Court, and of such further evidence, if any, as he deems necessary.
(5)
If—
(a)
where any claim for exemption from duty under this section has been allowed, it is subsequently found that any declaration or other evidence furnished in support of the claim was untrue in any material particular, or that the conditions specified in subsection (1) are not fulfilled in the reconstruction or amalgamation as actually carried out;
(b)
where shares in the transferee company have been issued to the existing company in consideration of the acquisition, the existing company within a period of three years from the date, as the case may be, of the registration or incorporation, or of the authority for the increase of the capital, of the transferee company ceases, otherwise than in consequence of reconstruction, amalgamation, liquidation or in compliance with Government policy on capital participation in industry to be the beneficial owner of the shares so issued to it; or
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(c)
where any such exemption has been allowed in connection with the acquisition by the transferee company of shares in another company, the transferee company within a period of three years from the date of its registration or incorporation or of the authority for the increase of its capital, as the case may be, ceases, otherwise than in consequence of reconstruction, amalgamation or liquidation, to be the beneficial owner of the shares so acquired;
the exemption shall be deemed not to have been allowed and an amount equal to the duty remitted shall become payable forthwith, and shall be recoverable from the transferee company as a debt due to the
Government, together with interest thereon at the rate of six per centum per annum, from the date on which the duty would have become chargeable if this section had not been passed.
(6)
If in the case of any scheme of reconstruction or amalgamation, the Collector is satisfied that at the proper time for making a claim for exemption from duty under subsection (1) there were in existence all the necessary conditions for such exemption other than the condition that not less than ninety per centum of the issued share capital of the existing company would be acquired by the transferee company, the
Collector may, if it is proved to his satisfaction that not less than ninety per centum of the issued capital of the existing company has under the scheme been acquired within a period of six months from the earlier of the two following dates, that is to say—
(a)
the last day of the period of one month after the first allotment of shares made for the purposes of the acquisition; or
(b)
the date on which an invitation was issued to the shareholders of the existing company to accept shares in the transferee company, and on production of the instruments on which the duty has been paid, direct repayment to be made of such an amount of duty as would have been remitted if the said condition had been originally fulfilled.
(6A)
Where any claim for exemption from duty under this section has been allowed and any of the circumstances specified under
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subsection (5) occurs, each company which was a party to the instrument shall notify the Collector of the circumstances of the occurrence within thirty days from the date of the occurrence.
(7)
In this section, unless the context otherwise requires—
(a)
references to a company (other than that of the transferee company) or to the registration or incorporation of a company (other than that of the transferee company) shall be construed as references to a company wherever registered or incorporated;
(b)
references to the undertaking of an existing company include references to a part of the undertaking of an existing company;
(c)
the expression “shares” includes stock.