Bombay High Court
Kundan Care Products Ltd vs State Of Maharashtra And Ors on 25 January, 2024
Author: Gauri Godse
Bench: Gauri Godse
2024:BHC-AS:4314
2-WP-3961-2022.docx
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3961 OF 2023
Kundan Care Products Ltd. ... Petitioner
Vs.
1. State of Maharashtra ... Respondents
2. Joint District Registrar Class-1
And Collector of Stamps, Sangli
3. Chief Controlling Revenue Authority
Mr. Sunny Shah a/w. Ms. Aashka Shell i/b. Mr. Kartik Garg for the
Petitioner.
Mr. P. G. Sawant, AGP for the State.
CORAM : GAURI GODSE, J.
DATE : 25th JANUARY 2024
ORAL JUDGMENT
1. By order dated 6th January 2024 this petition was fixed for final
hearing at admission stage.
2. Heard learned counsel for the petitioner and the learned AGP for
final disposal of the petition.
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3. This petition is filed to challenge the order dated 29 th September
2022 passed by the respondent no. 3 in Appeal No. 268 of 2018 and
order dated 10th August 2018 passed by respondent no.2. Both orders
deal with valuation and assessment for payment of stamp duty on the
sale certificate and the addendum to the sale certificate with respect to
sale of windmills.
4. The petitioner is an auction purchaser of the immovable property
consisting of land along with windmills. Under an auction proceeding
sale certificate for land as well as windmills was issued in favour of the
petitioner for a total sale price of Rs.12,36,00,000/-. Subsequently, two
addendums to the original sale certificate were issued; one for the sale
of landed property with its description with the sale price of
Rs.2,03,26,624/- and another for the sale of the windmills with its
description with the sale price of Rs.10,02,73,076/-.
5. Thereafter, the sale deed dated 20 th June 2018 was executed
based on the addendum for landed property and the petitioner paid
stamp duty of Rs.10,16,500/ computed @ 5%, and the sale deed was
lodged for registration. At the time of adjudication of the sale deed for
landed property, the addendum for windmills was required to be
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submitted before the adjudicating authority.
6. By order dated 10th August 2018 adjudication was done by
respondent no. 2 regarding the sale deed for landed property and the
property was revalued at Rs.3,41,32,000/- and the petitioner was
directed to pay additional stamp duty of Rs.6,90,100/- along with a
penalty of Rs.55,210/-. The petitioner paid the said additional stamp
duty as well as the penalty and the sale deed for the landed property
was registered on 18th August 2018.
7. By a separate order dated 10 th August 2018 respondent no. 2
assessed the addendum for the windmills and valued the windmills for
Rs.10,55,87,000/- and assessment for stamp duty was made @ 5%
and the petitioner was directed to stamp duty of Rs.52,79,350/-.
8. Aggrieved by the said order the petitioner filed Appeal No. 286 of
2018 under section 53(1A) of the Maharashtra Stamps Act, 1958
before respondent no. 3. In the said appeal, the petitioner challenged
the revaluation of the windmills from the original valuation of Rs.
10,32,73,376/- to Rs.10,55,87,000/- and also challenged the
applicability of 5% stamp duty by treating windmills as immovable
2-WP-3961-2022.docx
property. The contention of the petitioner before the appellate authority
was that the windmills cannot be treated as immovable property and
that the windmills has to be treated as movable property and the
stamp duty was required to be assessed @ 3% and not 5% in view of
Article 25(a) of Schedule I of the Maharashtra Stamps Act, 1958. The
petitioner had also raised an objection before the appellate authority
that since the addendum to the original sale certificate for the windmills
was never lodged for registration, respondent no. 2 could not have
assessed the same for payment of stamp duty.
9. By order dated 26th September 2022 respondent no. 3 dismissed
the appeal preferred by the petitioner and confirmed the valuation.
Respondent no. 3 in the impugned order has taken into consideration
the valuation of the property as Rs.12,36,00,000/- and assessed the
same for payment of stamp duty of Rs.61,80,200/- and directed the
petitioner to pay penalty on the said amount.
10. Perusal of the impugned order indicates that respondent no. 3
has taken into consideration the valuation of the property as reflected
in the original sale certificate which was the common sale certificate
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for the landed property as well as the windmills. Thus, respondent no.
3 decided the appeal preferred by the petitioner by assessing the
stamp duty on the original sale certificate for the sale price of landed
property and the windmills and directed to pay stamp duty of
Rs.61,80,200/- with penalty of Rs.7,41,600/-.
11. Hence, the present petition is filed challenging the order passed
by respondent no. 3 as well as the original assessment order passed
by respondent no. 2 with reference to the addendum to the sale
certificate for windmills.
12. Learned counsel for the petitioner submitted that pursuant to the
auction, the sale certificate dated 22 nd February 2018 was issued with
the sale price of Rs.12,36,00,000/- for the combined valuation of the
landed property as well as the windmills as specifically described in
the sale certificate. He submitted that two separate addendums to the
sale certificate were issued on 21st April 2018. He submitted that the
addendum for the landed property specifically described the property
with a sale price of Rs.2,03,26,624/-. He submitted that the addendum
for the windmills to the original sale certificate specifically described
the windmills with a sale price of Rs.10,32,73,376/-.
2-WP-3961-2022.docx
13. Learned counsel for the petitioner further referred to the sale
deed dated 20th June 2018 which was registered on 18 th August 2018
on making payment of the original stamp duty of Rs.10,16,500/- and
the subsequent payment of the additional stamp duty of Rs.6,90,100/-
along with penalty of Rs.55,210/-. He thus submitted that pursuant to
the assessment order dated 10th August 2018, the petitioner had
already paid stamp duty for the landed property, and the sale deed
was registered. He submitted that though the stamp duty for the
landed property was paid, respondent no. 3 while deciding the appeal
preferred by the petitioner has taken the valuation of the property as
per the sale price reflected in the original sale certificate which
consisted of the landed property as well as the windmills. He
submitted that though the assessment for the landed property as per
the addendum was made and the stamp duty was paid, respondent
no. 3 had recalculated the stamp duty on the combined sale price
without giving benefit to the petitioner for the payment of stamp duty
already made for the landed property.
14. Apart from the aforesaid submissions, learned counsel for the
petitioner also raised objection with respect to the windmills being
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treated as immovable property and assessment being done for
payment of stamp duty @ 5% as per Article 25(b) of Schedule I of the
Maharashtra Stamps Act, 1958 instead of treating it as moveable
property. He submitted that the windmills ought to have been
considered moveable property and should have been assessed for
payment of stamp duty @ 3% under Article 25(a) of Schedule I of the
Maharashtra Stamps Act, 1958.
15. Though the aforesaid submissions are made with respect to the
assessment of the windmills by treating the same as moveable
property, learned counsel for the petitioner on instructions states that
the petitioner is not pressing the aforesaid submissions for treating the
windmills as moveable property as the petitioner is desirous of taking
benefit of the amnesty scheme pursuant to the order dated 7 th
December 2023 issued by the Revenue and Forest Department,
Maharashtra State.
16. He further on instructions states that the petitioner is agreeable
to abide by the order dated 26 th September 2022 passed by
respondent no. 3, provided the petitioner is given the benefit of
payment of stamp duty already paid pursuant to order dated 10 th
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August 2018 by making payment of stamp duty of Rs.6,90,100/- over
and above the original payment of stamp duty of Rs.10,16,500/-
(Rs.10,16,500/- + Rs.6,90,100/-). He therefore submits that so far as
the order passed by respondent no. 3 by directing the petitioner to pay
a stamp duty of Rs.61,80,200/- is incorrect in as much as the petitioner
has already paid a stamp duty of Rs.10,16,500/- plus an additional
stamp duty of Rs.6,90,100/- towards registration of the sale deed for
the landed property based on the addendum for the landed property.
17. Learned counsel for the petitioner thus submits that the petitioner
is entitled to get the benefit of the amount of stamp duty already paid
and the petitioner cannot be made to pay stamp duty twice by valuing
the property which is already assessed and stamp duty is already paid.
In support of his submissions, the learned counsel for the petitioner
relied upon Section 4 of the Maharashtra Stamps Act, 1958.
18. Learned AGP states that the respondent no. 3 has rightly taken
into consideration the valuation as per the original sale certificate as
during the auction purchase the sale certificate is issued pursuant to
the auction purchase for the entire property by issuing a combined
sale certificate for the landed property as well as the windmills. He
2-WP-3961-2022.docx
therefore submitted that respondent no. 3 has rightly assessed the
property as per the original sale certificate as the higher value of the
principal document is required to be assessed for payment of stamp
duty.
19. I have considered the submissions made by both the parties.
Perused the papers. A perusal of the sale certificate indicates that the
valuation of the landed property as well as the windmills was described
in the original sale certificate, however, subsequently two separate
addendums are issued; one addendum to the original sale certificate
for the landed property by showing the sale price/valuation only for the
land and a separate addendum is issued for windmills showing
separate valuation/sale price for the windmills.
20. It is not disputed that the petitioner has already paid stamp duty
of Rs.10,16,500/- for the sale deed based on the addendum for the
landed property as well as additional stamp duty of Rs.6,90,100/- as
per the assessment made by the respondent no.2. Thus it is not
disputed that the petitioner has paid total stamp duty of
(Rs.10,16,500/- + Rs.6,90,100) Rs.17,06,600/- and sale deed dated
20th June 2018 was registered on 18 th August 2018. Orders passed by
2-WP-3961-2022.docx
respondent no. 2 as well as respondent no. 3 indicates that at the time
of assessment of the sale deed for landed property, the copy of the
addendum for the windmills was also submitted before respondent no.
2. Accordingly, respondent no. 2 assessed the addendum for windmills
for payment of stamp duty.
21. So far as the order passed by respondent no. 3 is concerned,
respondent no. 3 has modified the order passed on 10 th August 2018
by respondent no. 2 and reassessed the property by taking into
consideration the valuation/sale price as per the original sale certificate
which was combined for the landed property and the windmills. The
order of respondent no. 3 in paragraph 5.10 of the impugned order has
referred to the valuation of the property as Rs.12,36,00,000/- which is
reflected in the original sale certificate consisting of landed property as
well as the windmills. Respondent no. 3 has thus made the
assessment for payment of stamp duty on the original amount of the
sale certificate and directed the petitioner to pay stamp duty of
Rs.61,80,200/- and the penalty thereof. Thus, the separate valuation
in the two addendums to the sale certificate clearly shows that the
valuation/sale price of the landed property as well as the windmills has
2-WP-3961-2022.docx
been separately indicated. Since the petitioner has already paid
stamp duty for the landed property, respondent no. 3 ought to have
taken into consideration the assessment for payment of stamp duty by
giving the benefit of the amount already paid by the petitioner towards
stamp duty on the sale deed based on the addendum for landed
property.
22. Respondent no. 3 in paragraph 5.12 has stated that since the
amount of stamp duty already paid by the petitioner was for the
purpose of registration of the sale deed, the petitioner will not be
entitled to claim any benefit for payment towards stamp duty already
made by taking benefit of Section 4 of the Maharashtra Stamp Act,
1958. Ultimately the respondent no. 3 has opined that the sale deed
which is registered and the two addendums to the sale certificate do
not constitute supplementary documents for the purpose of section 4
of the said Act. Hence, according to respondent no. 4 the petitioner is
held not entitled to take benefit of the stamp duty already paid towards
the addendum to the sale certificate which is registered with the sale
deed for the landed property.
2-WP-3961-2022.docx
23. The learned counsel for the petitioner has relied upon Section 4
of the Maharashtra Stamp Act, 1958 and submitted that several
instruments used in a single transaction of sale are to be treated as
one transaction and the party is entitled to determine which instrument
so employed shall, for the purposes of sub-section(1), be deemed as
principal instrument. In the present case, the petitioner by treating the
addendum to the sale certificate for the landed property as the
principal instrument submitted the sale deed for registration and as per
the assessment and paid stamp duty as well as the additional stamp
duty for the landed property. Thus, the addendum to the sale
certificate for the windmills was never submitted for registration,
however, respondent no. 2 had assessed the addendum for windmills
for payment of stamp duty and directed the petitioner to pay stamp
duty.
24. Perusal of the sale deed, the original sale certificate, and the two
addendums indicate that all these instruments are part of one
transaction of the auction purchase pursuant to which initial sale
certificate was issued to the petitioner for the landed property as well
as the windmills. Subsequently, addendums to the sale certificate are
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issued separately for the landed property and the windmills. Thus, it
cannot be said that the two separate addendums are separate
transactions and that the petitioner would not be entitled to claim the
benefit of the payment of stamp duty for the registration of the sale
deed based on the addendum of the landed property. In view of
section 4 of the Stamp Act and the aforesaid assessments done for
two separate addendums to the Sale Certificate for the landed
property along with the windmills, I do not find that the reasons given
by respondent no. 3 by considering the addendum to the sale
certificate as a separate transaction, are acceptable.
25. In view of the aforesaid, the addendum to the windmills is part of
the original transaction i.e. the auction sale for the landed property
along with the windmills, however only the addendum to the landed
property and the sale deed is already registered by payment of stamp
duty. Hence, for the assessment of stamp duty on the addendum for
the windmills, the petitioner will be entitled to claim the benefit of the
stamp duty already paid pursuant to the assessment dated 10 th August
2018 and the payment of stamp duty originally paid on the assessment
2-WP-3961-2022.docx
of the sale deed based on the addendum for the landed property which
was lodged for registration. The petitioner cannot be asked to make
payment of the stamp duty twice on the landed property. Hence for the
reasons stated above the impugned order dated 26 th September 2022
needs modification to the extent of the petitioner's entitlement to get
the benefit of the stamp duty already paid, for the landed property.
26. Hence the petition is partly allowed by passing the following
order :
(i) Order dated 26th September 2022 passed by respondent
no 3 in Appeal No. 268 of 2018 is modified only to the extent for
permitting the petitioner to claim the benefit of the amount of Rs.
Rs.17,06,600/- (Rs.10,16,500/- + Rs.6,90,100) already paid by
the petitioner towards stamp duty at the time of registration of the
sale deed dated 20th June 2018 registered on 18th August 2018,
for the landed property.
(ii) Needless to state that the concerned authorities shall
consider the amount of Rs.17,06,600/- (Rs.10,16,500/- +
Rs.6,90,100) already paid by the petitioner towards the landed
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property, for providing the benefit of the amnesty scheme to the
petitioner for payment of stamp duty on the addendum for
windmills.
(iii) Petition is disposed of in the above terms.
(iv) All concerned to act on an authenticated copy of this order.
[GAURI GODSE, J.]
