Allahabad High Court
Rajendra Singh & Others vs The Commissioner/C.C.R.A. Agra ... on 23 May, 2013
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- WRIT - C No. - 74767 of 2005
Petitioner :- Rajendra Singh & Others
Respondent :- The Commissioner/C.C.R.A. Agra Divisino, Agra & Others
Petitioner Counsel :- S.S. Verma,R.J. Shahi,Ravi Shanker Pathak
Respondent Counsel :- C.S.C.,V.K. Singh
Hon'ble Pankaj Mithal,J.
Heard Sri Ravi Shanker Pathak, learned counsel for the petitioner and learned Standing Counsel for the respondents.
Parties have exchanged their pleadings and both the counsel agree for final disposal of the petition at the admission stage.
The challenge in the petition is to the order dated 26.4.2003 passed by the Additional Collector (Finance & Revenue), Agra and the revisional order thereto dated 19.10.2005 passed by the Commissioner, Agra Division, Agra.
The above orders have been passed in respect of an instrument dated 26.11.2001 by which Unit No.19 (G.F.S.) of plot No.C-1, Sanjay Place, Agra has been transferred in favour of the petitioner. The authorities in exercise of power under Section 33/47-A of the Indian Stamp Act, 1899 (in short "the Act") held that the petitioner has sold the constructions existing over the said land and, therefore, added the market value of the constructions in determining the deficiency in stamp duty of Rs.1,74,000/- and imposing penalty of Rs.87,000/-. The aforesaid order has been upheld in the revision which was dismissed.
Two arguments have been advanced that: (1) there was no material to hold that there existed constructions on the said land; and (2) the instrument is for transfer of lease holders rights by way of assignment and, as such, cannot be treated as transfer by sale or by lease.
The instrument in question has been annexed as Annexure - 1 to the petition. It clearly states that rights in vacant land having an area of 13.9 sq. meters are being assigned in favour of the petitioner and that there are no construction over it.
The respondents allege that a shop was situate on the said land. Therefore, burden to prove the existence of any shop over it was squarely upon the respondents. The respondents have not brought any material or evidence to this effect on record. There is no inspection report which could establish the existence of any construction/building on the said plot. In the absence of any material to the above effect the conclusion of the authority that the building was also subject matter of transfer is wholly misconceived.
It may be worth noting that the aforesaid plot is the property developed by the Agra Development Authority who had leased out the same in favour of one Vinod Kumar. The said Vinod Kumar transferred his lease hold rights in favour of Mahendra Bansal from whom the petitioner purchased the lease hold rights by the instrument in question dated 26.11.2001. All the aforesaid deeds state that the plot is vacant having no construction over it. Therefore, also the finding recorded by the authorities below that the land had constructions cannot be accepted. The finding to this effect recorded is completely perverse and is based upon no material.
As far as the nature of the above document is concerned, it is important to note that the property is a lease hold property. A transferor cannot transfer rights more than what he possesses over the land. Thus, the instrument in question cannot be treated as a deed of transfer by sale. The lease executed by the Agra Development Authority permits the transfer of lease hold rights in the said land by the lessee in favour of third party. In cases where lessor transfers his rights for the remaining period of the lease in favour of the third party, it is always treated as transfer of lease by assignment. In such a case a sub-lease or under-lease does not comes into existence. In a sub-lease, the person acquiring rights acquires something less than what the original lessee possesses and he becomes a tenant or sub-tenant of original lessee and may be liable to pay rent to him. In contrast to the above, in case of lease by assignment, the person acquiring rights comes in direct contact with the original lessor and the initial lessee moves out of the picture. In transfer of lease by assignment, in the event lease is cancelled the land reverts to the lessor and not to the initial or original lessee.
In view of the above legal position, a plain reading of the instrument in question makes it clear that it is not a transfer deed, lease, sub-lease or under-lease but transfer of lease by way of assignment.
The Apex Court in the case of M/s. Residential Welfare Association, NOIDA Vs. State of U.P. and others, 2009 (2) ADJ 2004 (SC) while dealing with a similar situation with regard to chargeability of stamp duty on an identical type of instrument, wherein NOIDA had leased out the land to a co-cooperative society who in turn executed lease deeds in favour of its members held that the subsequent transfer of right between the society and its members is transfer of lease by assignment and the instrument is chargeable to stamp duty under Article 63 of Schedule 1-B of the Act. It was further held that the stamp duty shall be paid on the consideration of the amount shown in the deed itself and not on the market value of the land or construction.
In view of the aforesaid facts and circumstances, the authorities below have manifestly erred in law in passing the impugned orders directing for payment of stamp duty on the above instrument on the market value of the land as well as the constructions. The above instrument is a deed of transfer of lease hold rights by assignment and, therefore, is chargeable to stamp duty under Article 63 of Schedule 1-B of the Act.
Accordingly, the order impugned orders dated 26.4.2003 passed by the Additional Collector (Finance & Revenue), Agra and 19.10.2005 passed by the Commissioner, Agra Division, Agra are quashed and the writ petition is allowed.
Order Date :- 23.5.2013
brizesh
