Bombay High Court
M/S. Silson vs The State Of Maharashtra Through ... on 30 June, 2017
Bench: K.K. Tated
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FARAD CONTINUATION SHEET
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14337 OF 2016
M/s.Silson .. Petitioner
vs.
The State of Maharashtra & Ors. .. Respondents
Mr.Nikhil Sakhardande with Ms.Shubhra Paranjape with Mr.Pralhad D.
Paranjape for the Petitioner
Mr.S.H.Kenkal, A.G.P. for the respondent nos.1 to 3
CORAM : K. K. TATED, J.
DATE : JUNE 30, 2017
JUDGMENT:
1. Heard the learned counsel for the parties.
2. By consent of both the parties, matter is taken on board for final
hearing at the stage of admission itself.
3. Respondent filed their Affidavit-in-Reply dated 7.6.2017.
4. By this petition under Article 226 and 227 of the Constitution of
India, the Petitioner challenges the order dated 30.6.2014 and 6.4.2015
passed by respondent no.3 Joint District Registrar-I & Collector of
Stamps, Pune calling upon the petitioner to pay sum of Rs.53,31,275/-
towards the stamp duty, order dated 16.3.2015 passed by Deputy
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Inspector General of Registration and Deputy Controller of Stamps,
Pune in Appeal under section 32B of the Maharashtra Stamps Act, 1958
by which the authority dismissed the petitioner's appeal. Petitioner is
also seeking direction against the respondents to issue / grant
certificate as per section 32 of the Maharashtra Stamp Act, 1958
(hereinafter referred to as the said Act) for payment of stamp duty.
5. In the present proceeding, petitioner submitted draft deed of
assignment to the respondent as per section 31 of the said Act for
adjudication for proper stamp duty. The respondent initially by their
letter dated 31.12.2013 informed to the petitioner that they have to
pay Rs.20,52,200/- on the said document towards the stamp duty. It
was also stated in the said letter that if stamp duty is deposited within
stipulated time, authority will issue appropriate certificate under
section 32 of the said Act. It was also specifically stated in the said
letter dated 31.12.2013 that the same was issued subject to the
provisions of section 53A of the said Act.
6. On the basis of the said opinion / cum order dated 31.12.2013,
petitioner paid stamp duty of Rs.20,52,200/- and informed to the
respondent Joint District Registrar-I & Collector of Stamps, Pune by
their letter dated 6.1.2014 along with copy of Challan (MTR Form
No.6) dated 4.1.2014.
7. Thereafter, the respondent on their own reviewed their order
dated 31.12.2013 without giving any notice to the petitioner and
informed the petitioner by letter / order dated 30.6.2014 that in view
of revision of stamp duty rates, petitioner have to pay sum of
Rs.40,55,700/-. It was also stated in the said letter / order dated
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30.6.2014 that they will get adjustment of stamp duty already paid.
The said order was passed by the authority subject to the provisions of
section 53A of the said Act.
8. Being aggrieved by the said letter / order dated 30.6.2014, the
petitioner preferred Appeal before the Deputy Inspector General of
Registration and Deputy Controller of Stamps, Pune on 7.1.2015 with
following prayers:
"a) Rule be issued;
b) This Hon'ble Authority be pleased to quash and set
aside the impugned letter of Order dated 20.12.2014 bearing
number 259 / 2013 / 10544 / 2014 issued by the
Respondent No.1.
c) This Hon'ble authority be pleased to quash and set
aside the revised Order bearing number 259 / 11 / 5302 / 14
dated 30.06.2014 issued by the Respondent No.1.
d) This Hon'ble Authority be pleased to confirm the Order
bearing number 259 / 11 / 13761 / 13 dated 31.12.2013.
e) Pending the hearing the final disposal of the present
Appeal, this Hon'ble Authority be pleased grant stay of the
execution of the impugned letter of Order dated 20.12.2014
bearing number 259 / 2013 / 10544 / 2014 issued by the
Respondent No.1.
f) Interim reliefs in terms of prayer clause (e).
g) Any other and further and equitable reliefs as this
Hon'ble Authority may deem fit."
9. The said Appeal was decided by the authority by order dated
16.3.2015 partly allowing the petitioner's appeal and remanded the
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matter to the authority to decide on its own merits. The respondent
issued order dated 6.4.2015 calling upon the petitioner to pay
additional stamp duty of Rs.32,79,100/-. Being aggrieved by the said
order passed by the authority below, the petitioner preferred the
present Writ Petition.
10. The learned counsel for the petitioner submits that the
authorities below failed to appreciate that as soon as the order dated
31.12.2013 was passed by them for adjudicating their documents
holding that they have to pay sum of Rs.20,52,200/- towards the stamp
duty, immediately they paid the same within 6 days and placed on
record copy of Challan. He further submits that as per section 31 and
32 of the said Act, it is mandatory on the part of respondent to issue
certificate under section 32 of the said Act as soon as stamp duty is
paid within 60 days from the communication of order.. He submits that
in the present proceedings, authority passed order under section 31 of
the said Act on 31.12.2013 and thereafter immediately they paid stamp
duty on 4.1.2014.
11. The learned counsel for the petitioner submits that the
respondent without issuing any notice and or intimation on their own
reviewed the earlier opinion / order dated 31.12.2013 and held that
the petitioner is liable to pay sum of Rs.40,55,700/- towards the stamp
duty instead of Rs.20,52,200/-. He submits that it is mandatory on the
part of authority that before reviewing any order under section 31 of
the said Act, they have to issue notice to the concerned party. He
submits that in the present proceedings, the respondent failed to
comply section 31 of the said Act. He further submits that the
respondent failed to appreciate the Circular dated 8.5.2012 issued by
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Deputy Inspector General of Registration and Deputy Controller of
Stamps, Pune. He further submits that respondents have no right to
unilaterally increase the stamp duty amount without giving any notice.
He submits that though the petitioner called upon the respondent to
issue certificate as required under section 32 of the said Act
immediately, they failed and neglected to do so. Hence, the order /
letter dated 31.12.2013 is binding on them and they have to issue
certificate under section 32 of the said Act so that petitioner can
execute the document. He submits that the subsequent orders passed
by the authority were without any jurisdiction and same are null and
void in law because the same were passed without giving any notice to
the petitioner. Hence, subsequent orders required to be set aside with
direction to the respondent to comply their own order dated
31.12.2013 and issue appropriate certificate under section 32 of the
said Act. He submits that if directions are not issued to the respondent
for issuing certificate under section 32 of the said Act, irreparable loss
and injury will be caused to the petitioner.
12. On the other hand, the learned A.G.P. for the respondent
vehemently opposed the present Writ Petition. He submits that there is
no question of passing any order under section 31 of the said Act. He
submits that section 31 is for adjudication as to the proper stamps on
documents/instruments. He submits that the contents of order / letter
dated 31.12.2013 is nothing but the opinion of the officer, how much
duty is liable to pay on the document. He submits that there is no
question of enforcement of opinion against the respondent. He submits
that the said opinion was dated 31.12.2013. He submits that the rates
of stamp duty were revised from 1.1.2014 and hence, the respondent in
the interest of Justice re-considered the earlier opinion given to the
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Petitioner and issued fresh dated 30.6.2014 holding that in the year
2014 petitioner have to pay sum of Rs.40,55,700/- towards the stamp
duty on the said document i.e. deed of assignment. He submits that
the authority have always right to change their opinion as per section
53A of the said Act. He submits that the Collector has power to review
the order under section 32, 39 and 41 as per section 53A of the said
Act.
13. The learned A.G.P. submits that the petitioner has no right to
seek direction from this court for implementing the opinion given by
the Collector under section 31 of the said Act. He submits that the
stamp duty is payable as per the ready reckoner published by the
Government from time to time. He submits that they are publishing
new rates for payment of stamp duty on 1st of January every year. He
submits that in the present proceedings, opinion was given on
31.12.2013. Because of revision of stamp duty rates, the authority has
given fresh opinion on 30.6.2014. Therefore, there is no substance in
the present Writ Petition and same is required to be dismissed with
costs.
14. I have heard the learned Counsel for the parties.
15. Considering the submissions made by both the counsel as stated
hereinabove, the issue involved in the present Writ Petition is "whether
the prayer made by the Petitioner for direction to respondent no.3 to
grant a certificate as set out in terms of section 32 of the said Act in
respect of deed of assignment on which the Petitioner paid stamp duty
on 6.1.2014 as per letter dated 31.12.2013 issued by respondent no.3
Deputy Inspector General of Registration and Deputy Controller of
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Stamps, Pune. Hence, there is no substance in the present petition and
same is liable to be dismissed with costs.
16. For the sake of convenience section 31, 32 and 53A of the said
Act is reproduced hereinbelow.
"31. Adjudication as to proper stamps.
[(1) When an instrument, whether executed or not and
whether previously stamped or not, is brought to the Collector,
[by one of the parties to the instrument and such person]
applies to have the opinion of that officer as to the duty (if any)
with which [or the Article of Schedule I under which] it is
chargeable and pay [a fee of one hundred rupees] the Collector
shall determine the duty (if any) with which [or the Article of
Schedule I under which] in his judgement, the instrument is
chargeable].
(2) For this purpose the Collector may require to be furnished
with [a true copy or] an abstract of the instrument, and also
with such affidavit or other evidence as he may deem necessary
to prove that all the facts and circumstances affecting the
chargeability of the instrument with duty, or the amount of the
duty with which it is chargeable, are fully and truly set forth
therein and may refuse to proceed upon any such application
until [such true copy or abstract] and evidence have been
furnished accordingly:
Provided that, -
(a) no evidence furnished in pursuance of this section shall
be used against any person in any civil proceeding, except
in any inquiry as to the duty with which the instrument to
which it relates is chargeable; and
(b) every person by whom any such evidence is furnished
shall, on payment of the full duty with which the
instrument to which it relates is chargeable, be relieved
from any penalty which he may have incurred under this
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Act by reason of the omission to state truly in such
instrument any of the facts or circumstances aforesaid.
[(3) Where the Collector acting under sub-sections (1) and (2)
is not the Collector of the District and if he has reasons to
believe that the market value of the property, which is the
subject matter of the instrument, received by him for
adjudication, has not been truly set forth therein, [he shall, for
the purpose of assessing the stamp duty, determine the true
market value of such property, as laid down in the Bombay
Stamp (Determination of True Market Value of Property) Rules,
1995.]
[(4) When an instrument is brought to the Collector for
adjudication,-
(i) within one month of the execution or first execution of
such instrument in the State; or
(ii) if, such instrument is executed or first executed, out of
the State, within three months from the date of first
receipt of such instrument in this State, the person liable
to pay the stamp duty under section 30 shall pay the same
within sixty days from the date of service of the notice of
demand in respect of the stamp duty adjudicated by the
Collector. If such person fails to pay the stamp duty so
demanded within the said period, he shall be liable to pay
a penalty at the rate of two per cent of the deficient
portion of the stamp duty, for every month or part thereof,
from the date of execution of such instrument, or as the
case may be, date of the first receipt of such instrument in
the State] :
[Provided that, in no case, the amount of the penalty shall
exceed double the deficient portion of the stamp duty.] "
"32. Certificate by Collector.
(I) When an instrument brought to the Collector under section
31, is in his opinion, one of a description chargeable with duty,
and -
(a) the Collector determines that it is already fully
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stamped, or
(b) the duty determined by the Collector under section 31,
or such sum as with the duty already paid in respect of the
instrument, is equal to the duty, so determined has been
paid, the Collector shall certify by endorsement on such
instrument that the full duty [( stating the relevant Article
of Schedule I and the amount)] with which it is
chargeable has been paid.
(2) When such instrument is, in his opinion, not chargeable
with duty, the Collector shall certify in manner aforesaid that
such instrument is not so chargeable.
(3) [Subject to the provisions of section 53-A, any instrument
upon which an endorsement has been made] under this section,
shall be deemed to be duly stamped or not chargeable with
duty, as the case may be; and, if chargeable with duty, shall be
receivable in evidence or otherwise, and may be acted upon and
registered as if it had been originally duly stamped:
Provided that nothing in this section shall authorise the
Collector to endorse -
(a) any instrument executed or first executed in the State
and brought to him after the expiration of one month
from the date of its execution or first execution as the case
may be;
(b) any instrument executed or first executed out of the
State and brought to him after the expiration of three
months after it has been first received in this State, or
(c) any instrument chargeable with the duty of twenty
naye paise or less when brought to him, after the drawing
or execution thereof, on paper not duly stamped.
53A. Revision of Collector's decision under sections 32, 39
and 41.
(1) Notwithstanding anything contained in sub-section
(3) of section 32, sub section (2) of section 39 and sub-
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section (2) of section 41, when through mistake or
otherwise any instrument is charged with less duty than
leviable thereon, or is held not chargeable with duty, as
the case may be, by the Collector, the Chief Controlling
Revenue Authority may, within a period of six years from
the date of certificate of the Collector under section 32, 39
or 41, as the case may be, require the concerned party to
produce before him the instrument and, after giving a
reasonable opportunity of being heard to the party,
examine such instrument whether any duty is chargeable,
or any duty is less levied, thereon and order the recovery
of the deficit duty. if any, from the concerned party. An
endorsement shall thereafter be made on the instrument
after payment of such deficit duty.
(2) On failure to produce the original instrument by the
party, the Chief Controlling Revenue Authority shall
proceed under this section on the basis of the true copy or
an abstract of the instrument filed with the Collector
under section 31 or sub-section (2) of section 37 and such
copy or abstract shall be deemed. to be the original
instrument for the purposes of this section.]
17. It is to be noted that bare reading of section 31 shows that if any
application is filed under said section with the Collector, Collector have
to give his opinion about the stamp duty payable on the said document.
18. In the present proceeding, the Petitioner on 14.11.2013 filed
application under section 31 of the said Act with the respondent no.3
for adjudication of their document i.e. deed of assignment. Pursuant to
the said application, the respondent no.3 forwarded his opinion / order
dated 31.12.2013 to the Petitioner stating that they have to pay stamp
duty to the extent of Rs.20,52,200/-. This shows that this was the
opinion of respondent no.3 about the stamp duty on Petitioner's
document/deed of assignment. The same was issued on 31.12.2013.
Considering the rate of stamp duty payable for that year. Immediately
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on next date, State of Maharashtra introduced revised stamp duty
payable on instruments as per ready reckoner. In view of the
change/amendment in rates of stamp duty payable on instrument,
respondent no.3 on its own without giving any notice reviewed his
earlier opinion / order dated 31.12.2013 and issued fresh one dated
30.6.2014. It was the duty of respondent no.3 that before reviewing
the earlier opinion / order he ought to have given notice to the
Petitioner calling upon their objection if any, within stipulated time.
Without doing anything as stated hereinabove, and or intimating the
petitioner on what basis they have reviewed the stamp duty payable by
them, on its own, issued a fresh opinion / order dated 30.6.2014 under
section 31 of the said Act. Though the same was challenged by the
Petitioner with the higher authority, Petitioner failed to convince them
to recall the said order and passed afresh after giving personal hearing
to the Petitioner.
19. One of the ground in the petition on behalf of Petitioner is that
respondent no.1 without giving any hearing to them passed the order
dated 30.6.2014 and same is required to be set aside along with other
orders passed by the appellate authority.
20. It is to be noted that before enhancing the liability of the
Petitioner, the respondent no.3 ought to have given notice to them and
after hearing ought to have passed the order on its own merits. If the
order is passed without giving opportunity of hearing, same is required
to be set aside in the interest of Justice.
21. It is to be noted that the respondent no.3 has power to review its
opinion / order in view of change of circumstances. But the same can
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be done on its own after giving an opportunity to the assessee. For
want of such opportunity to the Petitioner, I am of the opinion that the
orders dated 30.6.2014 and 6.4.2015 passed by respondent no.3 and
order dated 16.3.2015 passed by the Deputy Inspector General of
Registration and Deputy Controller of Stamp Duty, Pune in Appeal
under section 32B of the said Act is required to be set aside.
22. In the interest of Justice, liberty granted to both the parties to file
their additional pleadings, if any, before respondent no.3 and or after
hearing, respondent no.3 is required to decide the application on its
own merits holding how much stamp is due and payable by the
petitioner on the deed of assignment. Other issues raised by the
Petitioner as well as learned A.G.P. for State are kept open. Those can
be agitated before the authority. In view of these facts, following order
is passed:
a) Impugned orders dated 30.6.2014 and 6.4.2015 passed
by Joint District Registrar-I & Collector of Stamps, Pune and
order dated 16.3.2015 passed by Deputy Inspector General of
Registration and Deputy Controller of Stamp Duty, Pune in
Appeal under section 32B of the Maharashtra Stamps Act,
1958 are set aside.
b) Matter is remanded to the respondent no.3 Joint
District Registrar-I & Collector of Stamps, Pune for hearing
de-novo.
c) Liberty granted to both the parties if they so desire to
file their additional pleading with copy to other side within
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four weeks from the date of this order.
d) Respondent no.3 to decide review of order dated
31.12.2013 passed on the Petitioner's application under
section 31 of the Maharashtra Stamps Act, 1958 on its own
merits, as early as possible but in any case within ten weeks
from the date of this order.
e) All contentions of both the parties are kept open.
f) Till the decision of respondent no.3 on review of order
dated 31.12.2013 passed on Petitioner's application under
section 31 of the Maharashtra Stamps Act, 1958 and thirty
days from serving copy of opinion / order, respondents are
restrained from taking any coercive action against the
Petitioner in respect of deed of assignment.
g) No order as to costs.
(K.K.TATED, J.)
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