Bombay High Court
M/S. Lalit Constructions vs The Chief Revenue Controlling Autho. ... on 30 September, 2024
2024:BHC-AS:38707
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
Digitallysigned
signed
by
byPRACHI
PRACHI
PRACHI
PRACHI PRANESH
PRANESH
PRANESH
PRANESH
NANDIWADEKAR
NANDIWADEKAR
NANDIWADEKAR
NANDIWADEKAR WRIT PETITION NO.11761 OF 2016
Date:
Date:2024.10.01
2024.10.01
14:40:58
15:13:28+0530
+0530
M/s. Lalit Constructions )
a Registered Partnership Firm, )
Having its office at Poddar House, )
Patil Colony, Lane No.3, College Road, )
Nashik. )
Through its Partner )
Mr. Nemichand Lalitprasad Poddar, )
Age 64 years, Occu. Business, )
R/at. Nashik. ) ....Petitioner
(Orig. Appellant)
V/s.
1. Chief Revenue Controlling Authority and)
Inspector General of Registration and )
Controller of Stamps, Maharashtra State, )
Pune )
Ground Floor, New Administrative Bldg., )
Pune - 411 001. )
2. The Joint District Registrar-1 and )
Collector of Stamps, Nashik. ) ...Respondents
----
Mr. Girish S. Godbole, Senior Advocate i/by Mr. Parag M. Tilak for the
petitioner.
Smt. M. S. Bane, AGP for the respondent nos.1 & 2-State.
----
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CORAM : JITENDRA JAIN, J.
DATE : 30th SEPTEMBER 2024
JUDGMENT :
-
1 This petition is filed challenging an appeal order dated 22 nd
September 2014 passed under Section 53 (1A) of the Maharashtra Stamp
Act, 1958 passed by respondent no.1-The Chief Revenue Controlling
Authority, Maharashtra State, Pune.
2 Petitioner was the highest bidder of the property to be
developed which belongs to a Trust. The Charity Commissioner granted
permission for development of the said property to petitioner and
Development Agreement dated 31 st December 2002 and Power of Attorney
dated 17th March 2003 was executed before the Sub-Registrar, Nashik.
Petitioner paid relevant stamp duty of Rs.2,31,680/- being 1% market
value for the purpose of Development Agreement and Rs.100/- for the
purpose of Power of Attorney.
3 The said property was developed by petitioner and the Trust
executed individual sale deeds in favour of various purchasers wherein
petitioner acted as a confirming party as developer of the property.
4 On 8th August 2007, Audit Team of respondents raised an
objection with respect to deficit stamp duty paid by petitioner on Power of
Attorney and worked out deficit of Rs.16,21,760/-. The said amount was
demanded from petitioner and a charge was created on the property for
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recovery of the same. Petitioner, therefore, paid a sum of Rs.16,21,760/-
under protest and requested that the issue of correct stamp duty to be paid
on Power of Attorney be adjudicated upon. Since there was no adjudication
order deciding the issue of correct stamp duty on Power of Attorney,
petitioner made an application for refund of the amount paid under
protest which came to be rejected on 29th October 2007 on the ground that
there is no provision for refund of stamp duty paid under protest. Said
intimation was challenged before this Court in Writ Petition No.1695 of
2008 in which order came to be passed whereby petitioner was directed to
file an appeal against the said intimation with a direction to the Appellate
Authority to dispose of the same on its own merits.
5 Pursuant to the said order, an appeal came to be filed by
petitioner and the Appellate order dated 22 nd September 2014 came to be
passed by respondent no.1 which is the subject matter of challenge in the
present petition.
6 Shri Godbole, learned Senior Counsel appearing for petitioner
submitted that there is no order by the original authority passed under the
Stamp Act deciding the issue on correct nature of the document-Power of
Attorney and stamp duty thereon. It is his submission that unless there is
an adjudication order, the State cannot retain the amount paid "under
protest" by petitioner. It is his submission that merely because deficit stamp
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duty is paid under protest it does not mean that petitioner has accepted the
liability. It is further submitted that provision of Section 50 of the Stamp
Act is also not applicable to the payment made under protest. He,
therefore, prayed that the impugned order be quashed and the matter be
remanded to respondent no.2 for adjudicating the issue of correct stamp
duty to be paid on the Power of Attorney executed and if it is found that
the payment made "under protest" is in excess of actual liability then
respondents be directed to refund the balance.
7 Per contra, Ms. Bane, learned AGP appearing for the State
submitted that communication dated 29th October 2007 can be treated as
an order and therefore, the contention of petitioner is not justified that
there is no adjudication order. Learned counsel, therefore, prayed for
dismissal of the petition.
8 I have heard learned Senior Counsel for petitioner and learned
counsel for respondents.
9 In my view, the communication dated 29 th October 2007
cannot be considered as an adjudication order under Section 32 A (4) r.w.
(5) of the Maharashtra Stamp Act. There is no adjudication on the nature
of the document and determination of correct stamp duty as mandated by
the said provision. It is also important to note that petitioner on 19 th
September 2007 has filed detailed submissions enclosing all the documents
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to contend that the proceedings initiated under the Stamp Act be dropped
and amount paid under protest be refunded. In my view, in the
communication dated 29th October 2007, there is no reference to the said
submission and, therefore, there is no consideration of the same by
respondent no.2. It is settled position of law that merely because payment
is made "under protest" it would not amount to acceptance of liability by a
person making the payment. Therefore, the contention of respondents that
payment once made "under protest" cannot be refunded is not correct.
However, the said payment "under protest" would be subject to
adjudication and determination of final liability to be determined by the
original authority and if petitioner is found to be liable then the payment
made "under protest" can be adjusted by the said authority. The provision
of Section 50 of the Stamp Act cannot be made applicable to the payment
made "under protest". The Appellate Authority in its order dated 22 nd
September 2014 has made certain observations on merits of the case but
the same could not be found in the communication dated 29 th October 2007
issued by the original authority. The original authority ought to have passed
speaking order and failure to do so cannot be cured in the appellate order.
In my view, therefore, in the interest of justice, the impugned order dated
22nd September 2014 and the communication dated 29th October 2007 is
required to be quashed and set aside.
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10 I therefore, pass the following order :-
ORDER
(i) The communication dated 29th October 2007 and the Appellate order
dated 22nd September 2014 are hereby quashed and set aside.
(ii) Respondent no.2 is directed to adjudicate the issue of stamp duty on
Power of Attorney within a period of eight weeks from the date of
uploading the present order after giving an opportunity of hearing to
petitioner.
(iii) Respondent no.2 is directed to pass a speaking order dealing with all
the submissions and contentions of petitioner.
13 Rule is made absolute in aforesaid terms. Petition disposed.
(JITENDRA JAIN, J.)
