Gujarat High Court
Vodafone Idea Telecom Infrastructure ... vs Chief Controlling Revenue Authority, ... on 20 December, 2023
Author: Biren Vaishnav
Bench: Biren Vaishnav, Nikhil S. Kariel
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/STAMP REFERENCE NO. 1 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV sd/-
With
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL sd/-
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VODAFONE IDEA TELECOM INFRASTRUCTURE LIMITED
Versus
CHIEF CONTROLLING REVENUE AUTHORITY, GUJARAT STATE
==========================================================
Appearance:
MR MIHIR JOSHI, SENIOR ADVOCATE with MR SANDEEP SINGHI,
ADVOCATE with MR SHAMIK BHATT, ADVOCATE for SINGHI & CO,
ADVOCATES (2725) for the Applicant(s)
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER assisted by
MR CHINTAN DAVE, MR KANVA ANTANI, MR SIDDHARTH RAMI and MR
RAJ TANNA, AGPs for the Respondent(s)
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 20/12/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. This Stamp Reference is made under Section 54(1A)
of the Gujarat Stamp Act, 1958 (hereinafter referred to as
'the Stamp Act') by the Chief Controlling Revenue
Authority, Gandhinagar for the opinion of this court.
2. Facts in brief are as under:
2.1 A scheme of arrangement between Vodafone Idea
Limited (hereinafter referred to as 'the transferor
company') and Vodafone Idea Telecom Infrastructure
Limited (hereinafter referred to as 'the transferee
company') and their respective shareholders and
creditors was presented for the transfer of the Fibre
Infrastructure Undertaking of the transferor company
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and vesting of the same with the transferee company.
The transferee company was to pay to the transferor
company consideration equal to the carrying value of net
assets transferred, calculated as the difference between
the book value of the assets and the book value of the
liabilities transferred on the appointed date as stipulated
in clause 8.1 of Part B of the Scheme. The consideration
amount was determined as Rs.4639 crores.
2.2 The National Company Law Tribunal at Ahmedabad
(for short 'the Tribunal') by an order dated 18.09.2019
sanctioned the scheme. In paragraph 16 of the
instrument, the Tribunal directed as follows:
"16. The Petitioner Companies are directed to
file a copy of this order along with a copy of the
Scheme with the concerned Registrar of
Companies, electronically, along with INC-28 in
addition to physical copy as per relevant
provisions of the Act as well as to Stamp
Authority, Gujarat within 60 days of the receipt
of the order."
2.3 The certified copy of the order was made available
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by the Registry on 30.09.2019. The copy was filed by the
transferor company before the Registrar of Companies on
15.10.2019. According to the transferor company, since a
copy of the order could be filed within 60 days of the
receipt of the instrument, the transferee company on
13.11.2019 filed an application under Section 31 of the
Stamp Act seeking opinion of the Collector as to the
proper stamp duty payable on the said instrument. In the
application, it was the case of the transferee company
that as per Article 20(d) of Schedule-I of the Stamp Act,
the duty could be Rs.25 crores. It is the case of the
companies that despite repeated requests no opinion was
given.
2.4 The transferee company on 16.03.2021 received a
notice under Section 39(1)(b) of the Stamp Act.
According to the notice, it was the case of the Collector
that since the order dated 18.09.2019 of the Tribunal was
an 'instrument' and therefore included in the definition of
'conveyance' under Section 2(g) of the Stamp Act, the
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same ought to have been stamped within 30 days in
accordance with the provisions of Section 17 of the
Stamp Act and hence the application made on 30.11.2019
was time barred and therefore the transferee company
was asked to show cause as to why penalty be not levied
under the provisions of the Stamp Act.
2.5 A detailed reply was submitted explaining that the
application dated 30.11.2019 was not time barred and
that the proceedings initiated by the Collector under
Section 39(1)(b) of the Stamp Act was without jurisdiction
and that it was an undisputed fact that there was neither
any malafide intention nor an attempt on behalf of the
companies to evade payment of stamp duties and
therefore no penalty could be imposed. After a personal
hearing in the matter, the Collector by an order dated
25.10.2021, directed the transferee company to pay Rs.25
crores towards stamp duty and further imposed a penalty
of Rs.7,64,40,000/-.
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2.6 Aggrieved by the order dated 25.10.2021, the
company filed an application under Section 53(1) of the
Stamp Act before the Chief Controlling Revenue
Authority, Gujarat raising various grounds praying for
quashing and setting aside the order of the Collector and
further praying that a direction be issued to the Collector
to certify the instrument as per Section 32 of the Stamp
Act since full stamp duty had been paid.
2.7 The Chief Controlling Revenue Authority, Gujarat by
his order dated 29.11.2022 rejected the application under
Section 53(1) of the Stamp Act and upholding the order
dated 25.10.2021 passed by the Collector and the
Additional Superintendent of the State. Vodafone Idea
Telecom Infrastructure Limited requested the Authority
by way of an application dated 23.01.2023 to draw up a
statement of case and refer the same to High Court of
Gujarat under Section 54(1A) of the Stamp Act on the
questions of law that may arise for consideration.
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3. Accordingly, this reference has been made to this
Bench and the questions referred to this court for our
opinion are as follows:
A. Whether the subject instrument being the order of
the NCLT Ahmedabad could have been impounded
under Section 33 of the Gujarat Stamp Act, 1958
('Stamp Act') and consequently subjected to duty
and penalty under Section 39 thereof, particularly
when the said instrument was presented under
Section 31 of the Stamp Act for the purpose of the
opinion of the Collector, who would have no
jurisdiction to impound the same as held by the
Hon'ble Supreme Court of India in Government of
Uttar Pradesh & others v/s Raja Mohammed Amir
Ahmad Khan (AIR 1961 SC 787)?
B. Whether the provisions of Section 17 of the Stamp
Act requiring an order of the National Company
Law Tribunal to be stamped within 30 days from
the date of such order could at all be made
applicable in respect of an instrument presented to
the Collector under Section 31 of the Stamp Act
and whether any proceedings could have been
initiated for a purported breach thereof?
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C. Whether Section 32(3) of the Stamp Act disabling
the Collector from endorsing any instrument
brought to him after the expiration of one month
from the date of its execution can be construed as
an enabling provision authorizing the Collector to
impound the instrument under Section 33 of the
Stamp Act?
D. Whether the general time limit prescribed under
Section 17 of the Stamp Act providing for stamping
of the order of the National Company Law Tribunal
within 30 days from the date of such order can be
applied when such order/instrument itself permits
the applicant to present the order before the
Collector within 60 days from the date of the
receipt of the order?
E. Whether the action of impounding the said
instrument and subjecting it to imposition of
penalty is not contrary to the scheme and
provisions of the Stamp Act and more particularly
Section 40 thereof, which vests a discretion with
the Collector of not impounding such instrument
even if presented beyond the period of 30 days but
before the period of 1 year from the date of such
instrument?
F. Whether the CCRA has erred in rejecting the
Applicant's submission that there was no delay in
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filing of application under Section 31 of the Stamp
Act, the same having been filed within 30 days of
the Effective Date under the Scheme, especially
when the consideration amount payable under the
Scheme could not have been computed unless the
Scheme was made effective?
G. Whether the imposition of penalty is not
disproportionate, excessive, unreasonable, illegal,
and unjust, in the absence of any mens rea on the
part of the Applicant which had itself presented the
said instrument for seeking opinion of the
Collector under Section 31 of the Act and which
was within the time stipulated in the order of NCLT
Ahmedabad itself?
H. Whether the CCRA ought not to have set aside the
order of the Collector imposing penalty,
particularly since the Collector has failed to assign
any reasons whatsoever for imposition of the said
penalty, and in absence of assignment of reasons
by the Collector, whether the CCRA has not erred
in supplanting its own reason to justify the
imposition of penalty?
4. Mr. Mihir Joshi, learned Senior Advocate appearing
with Mr. Sandeep Singhi and Mr. Shamik Bhatt, learned
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advocates for Singhi & Company would take the court
through the scheme of the provisions of the Stamp Act.
He would refer to the provisions of Section 3 which
provides for chargeability of stamp duty on 'instruments'
mentioned in Schedule-I of the Stamp Act. He would also
refer to Article 20(d) of the Stamp Act. Reference was
also made to the relevant definitions under the Act
namely Sections 2(g) - "conveyance", 2(h) - "duly
stamped", 2(i) - "executed" and "execution", 2(l) -
"instrument", Section 17 of the Stamp Act which provides
for stamping of instruments executed in the State of
Gujarat, Sections 31, 32, 33(3), 39 and 40 of the Stamp
Act etc.
4.1 Mr. Joshi would make the following submissions with
respect of questions of law referred to hereinabove:
A. Whether the subject instrument being the
order of the NCLT Ahmedabad could have been
impounded under Section 33 of the Gujarat
Stamp Act, 1958 ('Stamp Act') and
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consequently subjected to duty and penalty
under Section 39 thereof, particularly when the
said instrument was presented under Section
31 of the Stamp Act for the purpose of the
opinion of the Collector, who would have no
jurisdiction to impound the same as held by the
Hon'ble Supreme Court of India in Government
of Uttar Pradesh & others v/s Raja Mohammed
Amir Ahmad Khan (AIR 1961 SC 787)?
1. An application made to the Collector under Section
31 of the Stamp Act is only for the purpose of
seeking adjudication/opinion as to the stamp duty
chargeable on the instrument in question. After the
determination of the duty, the Collector becomes
functus officio and the provisions of Section 33 of
the Stamp Act have no application. Thus, the
Collector cannot exercise powers under Sections 33
and 39 of the Stamp Act in respect of an instrument,
which is produced before him for seeking his opinion
under Section 31 of the Stamp Act.
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2. The Respondent has also accepted the aforesaid
position of law as settled in the judgment of Hon'ble
Supreme Court of India reported in AIR 1961 SC
787. The Respondent has also admitted that in the
facts of the present case, the action of impounding
of the instrument by the Collector was illegal.
3. In absence of valid impounding of an instrument
under Section 33 of the Stamp Act, no steps can be
taken as per Section 39 of the Stamp Act, including
for charging penalty.
4. Undisputedly, the said instrument was produced
before the Collector under Section 31 of the Stamp
Act only for seeking his opinion as to chargeability of
stamp duty thereon, and nothing else.
5. The argument of the Respondent that in its
application before the CCRA under Section 53(1) of
the Stamp Act, the Applicant had also prayed for
certification under Section 32 of the Stamp Act and
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therefore the Applicant was seeking certification in
addition to adjudication, is misconceived. The said
prayer was made by the Applicant before the CCRA
in the context of the application filed before CCRA
after the Collector had already impounded the said
instrument and passed an order under Section 39(1)
(b) of the Stamp Act, and after the Applicant had full
payment of stamp duty.
6. In the facts of the present matter, a conundrum has
arisen because the Collector never opined as to the
chargeability of stamp duty on the said instrument
and never decided the application under Section 31
of the Stamp Act. Instead, at the stage of application
under Section 31 of the Stamp Act, the Collector
impounded the instrument and thereafter passed an
order dated 25.10.2021 under Section 39(1)(b) of
the Stamp Act. Prior to the order dated 25.10.2021,
the Collector has neither determined nor opined on
the stamp duty chargeable on the said instrument.
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B. Whether the provisions of Section 17 of the
Stamp Act requiring an order of the National
Company Law Tribunal to be stamped within 30
days from the date of such order could at all be
made applicable in respect of an instrument
presented to the Collector under Section 31 of
the Stamp Act and whether any proceedings
could have been initiated for a purported
breach thereof?
1. Section 17 of the Stamp Act has no application to
the procedure contemplated under Section 31 of the
Stamp Act.
2. Section 17 prescribes time-limit when the concerned
party to the instrument seeks to voluntarily stamp
the instrument without seeking opinion of the
Collector. On the other hand, under Section 31, an
applicant may seek opinion of the Collector as to the
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chargeability of stamp duty on an instrument.
Section 31 of the Stamp Act does not prescribe any
time limit for seeking opinion/adjudication of the
Collector.
3. If the time-limit prescribed under Section 17 of the
Stamp Act were to be applied to procedure under
Section 31 of the Stamp Act, then the same would
result into an inconsistency.
E.g.
As per Section 17 of the Stamp Act, a lease deed
executed in Gujarat will have to be stamped either
prior to or at the time of execution or immediately
thereafter on the next working day following the
day of execution.
Even if such lease deed is not stamped within the
time prescribed under Section 17 of the Stamp
Act, but it is brought to the Collector under
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Section 31 of the Stamp Act within 1 month of its
execution, then the Collector would be required to
provide his opinion as to the chargeability of
stamp duty on the said lease deed and if the
applicant makes payment in accordance with the
opinion of the Collector, the Collector shall certify
the instrument by endorsement under Section 32
of the Stamp Act.
Moreover, the period of 1 month referred to in
proviso to Section 32(2) of the Stamp Act is only
for making an application under Section 31 of the
Stamp Act. The Collector may provide an opinion
under Section 31 of the Stamp Act even after a
year, and if the applicant makes payment of stamp
duty as per the Collector's opinion, the Collector
would have to certify the instrument under
Section 32.
The aforesaid illustration highlights that failure to
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stamp an instrument as per the time-limit prescribed
under Section 17 will not have any consequences
qua the procedure under Sections 31 and 32 of the
Stamp Act. In fact, the provision of Section 17 of the
Stamp Act is subject to the provision of Sections 31
and 32 of the Stamp Act. Merely because time-limit
of stamping under Section 17 of the Stamp Act is not
adhered to, the same cannot be made a ground by
the Collector to impound an instrument produced
before it under Section 31 of the Stamp Act.
4. Thus, the Collector has erred in impounding the said
instrument on the ground that the same has not
been stamped as per Section 17 of the Stamp Act.
C. Whether Section 32(3) of the Stamp Act
disabling the Collector from endorsing any
instrument brought to him after the expiration
of one month from the date of its execution can
be construed as an enabling provision
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authorizing the Collector to impound the
instrument under Section 33 of the Stamp Act?
1. The CCRA has relied upon the proviso to Section
32(3) of the Stamp Act to uphold the Collector's
action of impounding the said instrument produced
for opinion under Section 31 of the Stamp Act.
2. However, such findings of the CCRA run contrary to
its own stand before this Court that an instrument
produced only for seeking opinion under Section 31
of the Stamp Act cannot be impounded by the
Collector, irrespective of whether the same is
produced before or after expiry of period of 1 month
from the date of its execution.
3. Merely because the Collector may not be
empowered to certify an instrument under Section
32 if the same is produced after 1 month of
execution, the Collector cannot impound such
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instrument when they are produced for seeking
opinion under Section 31 of the Stamp Act.
4. In the facts of the present case, the Applicant had
produced the said instrument before the Collector
under Section 31 of the Stamp Act only for seeking
an opinion. By not determining the stamp duty
chargeable on the said instrument under Section 31
of the Stamp Act and by impounding the said
instrument instead, the Collector robbed the
Applicant of availing different avenues available to it
under the Stamp Act.
5. If the Collector would have acted in accordance with
the provisions of the Stamp Act, then the following
scenarios may have arisen:
Once the Collector would have provided his
opinion, it would be upto the Applicant to take
necessary further steps viz., make payment of
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stamp duty and seek certification under Section
32 of the Stamp Act, or make an application to the
Collector under Section 40 of the Stamp Act, or
not stamp the said instrument at its own risk.
In one of the aforesaid scenarios, it would have
been open to the Applicant to produce the
instrument before the Collector within 1 year
from date of its execution under Section 40 of the
Stamp Act and make out a case for stamping of
the instrument.
Alternatively, after determination of stamp duty
by the Collector under Section 31, the Applicant
would have made payment of stamp duty, and
then approached the Collector for certificate
under Section 32. In such a scenario, the
Collector would refuse to certify the instrument
since the same was produced before the Collector
under Section 31 after a period of 1 month of its
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execution. As contended by the Respondent, the
Collector would then proceed to impound the
instrument under Section 33.
Assuming for the sake of argument that in the
aforesaid scenario, the said instrument were to be
treated as not 'duly stamped' and the Collector
could impound the instrument when produced for
seeking certificate under Section 32, then after
impounding the said instrument the Collector
would take steps under Section 39 of the Stamp
Act.
Upon examination of the said instrument under
Section 39 of the Stamp Act, if the Collector finds
that it is not 'duly stamped', then as per Section
39(1)(b) he shall require payment of the 'proper
duty' or 'the amount required to make up the
proper duty', together with a penalty of Rs.5/- or if
he thinks fit an amount not exceeding 10 times
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the amount of the 'proper duty' or of the 'deficient
portion of the proper duty'.
In the aforesaid circumstances, considering the
instrument would have been impounded at the
time when the Applicant had sought certificate
under Section 32 of the Stamp Act i.e., after
making payment of stamp duty as per the
Collector's opinion, there would be no scope of
requiring payment of 'amount required to make
up the proper duty' and even penalty of not more
than Rs.5/- could have been charged since there
would be no 'deficient portion of the proper duty'.
6. Thus, charging of penalty upto 10 times of deficient
portion of stamp duty would arise only in such cases
of impounding of instrument, wherein a party has
evaded payment of stamp duty and has sought to
produce the instrument in evidence or has sought to
rely upon the same before a public officer. It would
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be exceptionally harsh to charge penalty upto 10
times to an applicant who has produced an
instrument on his own volition for seeking opinion
under Section 31 of the Stamp Act and who after
making payment of stamp duty in accordance with
Collector's opinion, seeks a certificate under Section
32 of the Stamp Act.
7. Even in cases where there is a suppression of
market value of property that is the subject matter
of an instrument, as per Section 31(3) of the Stamp
Act, the Collector would refer the instrument to the
Collector of relevant district to determine the true
market value of the property as per the procedure
laid down in Section 32A of the Stamp Act. In such a
situation, as per Section 32A(3) of the Stamp Act,
the applicant would be required to make payment of
amount of deficit stamp duty and penalty of not more
than Rs.250/-.
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D. Whether the general time limit prescribed
under Section 17 of the Stamp Act providing
for stamping of the order of the National
Company Law Tribunal within 30 days from the
date of such order can be applied when such
order/instrument itself permits the applicant to
present the order before the Collector within
60 days from the date of the receipt of the
order?
1. In the case of an NCLT Order, in view of the very
nature of such instrument, if the time of 30 days as
referred to in Section 17 of the Stamp Act is read
strictly as '30 days and not a day more', it would
result in an anomaly. An instrument such as an
NCLT Order is not executed/signed by the applicant,
but it is an order passed by the NCLT. Therefore,
stamping of the NCLT Order is firstly dependent
upon receipt of a certified copy. Moreover, an order
of NCLT may be the subject matter of a review or an
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appeal, and/or might be stayed. Further, an order of
the NCLT itself may not be implementable within a
period of 30 days. Thus, time of 30 days referred to
in Section 17 of the Stamp Act is required to be
interpreted purposively as per the facts of each
instrument.
2. The Stamp Act does not provide a consequence for
delay in stamping of an instrument under Section 17
of the Stamp Act, including action of impounding.
Further, the definition of 'duly stamped' under
Section 2(h) of the Stamp Act does not refer to the
time for stamping prescribed under Section 17 of the
Stamp Act. The same is also clear from the following
illustration:
In case of an NCLT Order, if the same is submitted
before the Collector under Section 31 of the Stamp
Act within a period of 1 month of its execution, then
even when the Collector takes more than 30 days to
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provide his opinion and the applicant makes
payment of stamp duty as per the Collector's opinion
after 30 days of the date of NCLT Order, the same is
treated as 'duly stamped', and thereafter upon
request of the applicant, the Collector also certifies
such NCLT Order under Section 32 of the Stamp
Act. Therefore, even though the time of 30 days as
stipulated in Section 17 of the Stamp Act is not
strictly adhered to, it does not render the NCLT
Order 'not duly stamped'.
3. The judgments relied upon the Respondent to
contend that 'limitation period' stipulated in a
statute is required to be strictly construed would not
apply to Section 17 of the Stamp Act in view of the
submissions made above. Moreover, time of 30 days
referred to in Section 17 of the Stamp Act is not a
'limitation period', in as much as the same is time for
payment of stamp duty by a party voluntarily without
seeking opinion of the Collector.
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4. In the present facts, the said instrument itself
prescribes time of 60 days for producing the
instrument before the Collector. The said NCLT
order dated 18.9.2019 is not challenged and having
attained finality, it is binding on all concerned
including relevant statutory authorities. NCLT, being
a judicial authority, is deemed to be aware of the
provision of Section 17 of the Stamp Act. Inspite of
the same and upon considering the time required for
relevant events, viz. effectiveness of the Scheme,
determination of Appointed Date, valuation of assets
as on Appointed Date, computation of consideration
amount, etc., NCLT had permitted the Applicant to
produce the said instrument before the Collector
within 60 days of its receipt.
5. Further, NCLT had given time of 60 days to the
Applicant to file its order dated 18.9.2019 before the
Registrar of Companies ('ROC'), whereupon the
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Scheme would become effective. Only once the
Scheme becomes effective, the Appointed Date
would be determined, and only once the Appointed
Date is determined, the consideration amount could
have been computed. Looking to Article 20(d) of
Schedule-I to the Stamp Act, the Collector could not
have computed the stamp duty chargeable on the
said instrument, in absence of the determination of
consideration amount.
6. A certified copy of the NCLT Order dated 18.9.2019
was received on 30.9.2019, and thereafter the NCLT
Order dated 18.9.2019 was filed before the ROC on
15.10.2019, which became the Effective Date.
Consequently, the Appointed Date was determined
as 1.10.2019, and thereafter the concerned
Chartered Accountant had to undertake the exercise
of computation of consideration amount as per
Clause 8.1 of the Scheme.
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7. Therefore, in the facts of present case, it was
impossible for the Applicant to stamp the said
instrument within a period of 30 days as per Section
17 of the Stamp Act. Even if the Applicant would
have undertaken the ministerial step of filing of the
said instrument within 1 month before the Collector,
it would not have been in a position to provide
details of consideration amount, without which the
Collector would not have been in a position to
compute the stamp duty and give an opinion under
Section 31 of the Stamp Act. Consequently, the
stamp duty on the said instrument could not have
been paid within 30 days as referred in Section 17 of
the Stamp Act.
E. Whether the action of impounding the said
instrument and subjecting it to imposition of
penalty is not contrary to the scheme and
provisions of the Stamp Act and more
particularly Section 40 thereof, which vests a
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discretion with the Collector of not impounding
such instrument even if presented beyond the
period of 30 days but before the period of 1
year from the date of such instrument?
1. It is reiterated that had the Collector followed the
procedure of Section 31 of the Stamp Act, then the
complexities that have arisen in the present facts
would have been avoided. The Collector did not
decide the Applicant's application under Section 31
of the Stamp Act and did not provide his opinion. If
the Collector would have provided his opinion under
Section 31 of the Stamp Act, instead of illegally
impounding the said instrument under Section 33 of
the Stamp Act and illegally initiating proceedings
under Section 39 of the Stamp Act, it would have
been open to the Applicant to apply to the Collector
under Section 40 of the Stamp Act and pray for
stamping of the instrument in accordance with the
said provision.
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2. A situation has now arisen that if in view of the
admission of the Respondent that the Collector had
illegally impounded the said instrument, if this Court
were to answer only the first question and set aside
the Collector's order dated 25.10.2021, the
Applicant will still be left with an unstamped
instrument inspite of having paid Rs.25 crores
towards stamp duty. In view of passage of 1 year
from date of NCLT Order dated 18.9.2019, it is not
even open to the Applicant to apply to the Collector
under Section 40.
F. Whether the CCRA has erred in rejecting the
Applicant's submission that there was no delay
in filing of application under Section 31 of the
Stamp Act, the same having been filed within
30 days of the Effective Date under the Scheme,
especially when the consideration amount
payable under the Scheme could not have been
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computed unless the Scheme was made
effective?
1. The Applicant had produced the instrument before
the Collector under Section 31 of the Stamp Act
within a period of 30 days of the Effective Date of
the Scheme. The Applicant reiterates the
submissions made in the earlier paragraphs in
response to Question D above.
G. Whether the imposition of penalty is not
disproportionate, excessive, unreasonable,
illegal, and unjust, in the absence of any mens
rea on the part of the Applicant which had
itself presented the said instrument for seeking
opinion of the Collector under Section 31 of the
Act and which was within the time stipulated in
the order of NCLT Ahmedabad itself?
H. Whether the CCRA ought not to have set aside
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the order of the Collector imposing penalty,
particularly since the Collector has failed to
assign any reasons whatsoever for imposition of
the said penalty, and in absence of assignment
of reasons by the Collector, whether the CCRA
has not erred in supplanting its own reason to
justify the imposition of penalty?
1. In view of the admission of the Respondent that the
impounding of the said instrument was illegal, it is
clear that consequential proceedings initiated under
Section 39 of the Stamp Act are also bad in law, and
therefore the penalty imposed by the Collector is
required to be quashed and set aside.
2. The Applicant has on its own volition produced the
said instrument under Section 31 of the Stamp Act,
requesting for the Collector's opinion as to the
chargeability of stamp duty on the instrument. Thus,
the Applicant never intended to evade payment of
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stamp duty. Even the Collector has not made any
finding that the Applicant sought to evade payment
of stamp duty. It is not a case wherein the Collector/
public officer has impounded the said instrument
because Applicant was surreptitiously attempting to
enter the said instrument into evidence or was
relying upon the same without paying stamp duty.
3. Reliance placed by the Respondent on the judgment
of the Hon'ble Supreme Court of India in the case of
State Of Gujarat and Another vs. Saw Pipes Ltd.
reported in 2023 SCC Online 428, is
misconceived. The said judgment has been delivered
in the context of Section 45(6) of Gujarat Sales Tax
Act, 1969, wherein the imposition of penalty is not
discretionary. On the other hand, Section 39(1)(b)
provides for imposition of penalty of Rs.5/-, and
imposition of penalty of more than Rs.5/- upto 10
times of the deficient portion of stamp duty is
discretionary.
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4. Even as per the Scheme of the provisions of the
Stamp Act as narrated above, an application to the
Collector under Section 31 reflects bona fide on part
of an applicant. As submitted in response to
Question C above, it is reiterated that if the
procedure as per Section 31 of the Stamp Act had
been followed by the Collector, then the question of
charging penalty would not have arisen.
5. The Collector has neither disclosed reasons nor the
basis for arriving at the figure of Rs.7,64,40,000/-
sought to be charged towards penalty in its order
dated 25.10.2021.
6. The argument of the Respondent that the quantum
of penalty has been calculated on the basis of
interest that would have been levied under Section
46 of the Stamp Act, is an afterthought, and the
same has been made for the first time during the
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course of oral arguments before this Court. In his
order dated 25.10.2021, the Collector himself has
stated that interest would be chargeable if the stamp
duty and penalty amount demanded is not paid
within 90 days from the date of the said order dated
25.10.2021. This is so because as per Section 46 of
the Stamp Act, interest can be levied only in cases
where the amount of stamp duty and/or penalty has
been crystallized and the Collector has required its
payment. Therefore, when the Collector could not
have charged interest as per Section 46 of the
Stamp Act, it would not be open for the Collector to
recover interest in the form of penalty. If the
Collector would have been entitled to levy interest,
he could have levied the same in addition to penalty.
In any case, interest and penalty cannot be equated.
7. Even otherwise, the argument that the quantum of
penalty is being determined on the basis of interest
amounts to taking advantage of Collector's own non-
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adherence to procedure. In its application dated
13.11.2019, the Applicant has submitted that as per
its own calculation stamp duty of Rs.25 crores is
payable towards stamp duty on the instrument in
question. Thus, at the outset the Applicant has
shown its readiness and willingness to pay the
maximum stamp duty of Rs.25 crores on the
instrument in question. Even in its letter dated
1.7.2021, the Applicant had requested the Collector
to issue final opinion under Section 31 of the Stamp
Act so that the Applicant may make payment of
stamp duty and thereafter apply for certificate under
Section 32. However, the Collector never opined as
to the chargeability of stamp duty on the said
instrument, and only passed an order under Section
39(1)(b) of the Stamp Act on 25.10.2021.
8. For the aforesaid reason, the finding of the CCRA
justifying imposition of penalty of Rs.7,64,40,000/-
because of passage of time between date of the said
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instrument and date of payment of stamp duty is
also erroneous. In any case, when the Collector had
not assigned any reason/basis for imposition of
penalty, the CCRA could not have supplanted his
own reasons to justify the same.
9. Without prejudice to the aforesaid submissions, it is
submitted that the amount of penalty imposed must
be commensurate with the gravity of alleged
misconduct. Imposition of penalty of an amount of
Rs.7,64,40,000/- in a case where the Applicant has
voluntarily approached the Collector for seeking
opinion, while being ready and willing to pay the
maximum stamp duty of Rs.25 crores, albeit after an
alleged delay of less than 30 days is disproportionate
and excessive.
4.2 Mr. Joshi, learned Senior Advocate, in support of his
submissions, would refer to the following decisions:
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(a) Government of Uttar Pradesh & others vs.
Raja Mohammed Amir Ahmad Khan (AIR 1961
SC 787);
(b) Trustees of H.C. Dhanda Trust v/s State of
Madhya Pradesh [(2020) 9 SCC 510 - para.12,
15-17, 20-24];
(c) Hindustan Steel Limited v/s State of Orissa
[1969 (2) SCC 627 - para. 8].
5. Ms. Manisha Lavkumar, learned Government
Pleader assisted by Mr. Siddharth Rami and Mr. Raj
Tanna, learned AGPs appearing for the State would make
the following submissions on the respective questions
raised:
A. WHETHER THE SUBJECT INSTRUMENT
BEING THE ORDER OF THE NCLT
AHMEDABAD COULD HAVE BEEN
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IMPOUNDED UNDER SECTION 33 OF THE
GUJARAT STAMP ACT, 1958 AND
CONSEQUENTLY SUBJECTED TO DUTY AND
PENALTY UNDER SECTION 39 THEREOF,
PARTICULARLY WHEN THE SAID
INSTRUMENT WAS PRESENTED UNDER
SECTION 31 OF THE STAMP ACT FOR THE
PURPOSE OF THE OPINION OF THE
COLLECTOR, WHO WOULD HAVE NO
JURISDICTION TO IMPOUND THE SAME AS
HELD BY THE HON'BLE SUPREME COURT OF
INDIA IN GOVERNMENT OF UTTAR PRADESH
& OTHERS V/S. RAJA MOHAMMED AMIR
AHMAD KHAN (AIR 1961 SC 787)?
1) With the decision of the Hon'ble Apex Court
rendered in case of Government of Uttar Pradesh
&Ors. Versus Raja Mohammad Amir Ahmad
Khand reported in AIR 1961 SC 787, having
identified powers under Section 31 of the Act, as
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having a distinct and an independent domain whilst
remaining confined to the administrative exercise of
granting an opinion, when after the Collector would
become functus officio, there can be no simultaneous
invocation of the process provided for under Section
33 of the Act.
2) However, the said decision of the Hon'ble Apex
Court cannot be read to foreclose the right of
respondent authorities for all times to come to
invoke consequences which would entail in case of
an inadequately stamped and/or not stamped
instrument. As a matter of fact, any instrument that
comes to the notice of authority having by law or
consent of parties authority to receive evidence, and,
every person in charge of public office, except an
officer of police, before whom instrument
chargeable, in his opinion is produced or comes in
the performance of his function, is duty bound to
impound the said document, if it appears to him that
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the said instrument is not duly stamped.
3) This question referred herein above is accordingly
answered.
B. WHETHER THE PROVISIONS OF SECTION
17 OF THE STAMP ACT REQUIRING AN ORDER
OF THE NCLT TO BE STAMPED WITHIN 30
DAYS FROM THE DATE OF SUCH ORDER
COULD AT ALL BE MADE APPLICABLE IN
RESPECT OF AN INSTRUMENT PRESENTED
TO THE COLLECTOR UNDER SECTION 31 OF
THE STAMP ACT AND WHETHER ANY
PROCEEDINGS COULD HAVE BEEN INITIATED
FOR A PURPORTED BREACH THEREOF?
1) The above question constitutes of two facets (i)
Applicability of the limitation prescribed for
stamping whether applicable to the procedure
prescribed under Section 31, and, (ii) Whether
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proceedings for breach of limitation for stamping (u/
s 17 of the Act) can entail institution of proceedings
(u/s 33 read with Section 39 of the Act).
2) Before delving on both these above facets, it shall
only be fruitful to consider that Section 17 of the
Gujarat Stamp Act, 1958 which provides for
stamping of a document and stipulates a
requirement that all instruments chargeable with
duty and executed by any person in this State shall
be stamped before or at the time of execution or
immediately thereafter on the next working day
following the day of execution.
3) The proviso to this section specifies such
limitation applicable to a definite specie of
instruments, in so far as it/they relate(s) to an order
of,
i. The National Company Law Tribunal under
Section 232 of the Companies Act, 2013 in
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respect of a scheme for reconstruction of the
company or companies involving merger or the
amalgamation of any two or more companies;
or
ii. Order of the Reserve Bank of India under
Section 44A of the Banking Regulation Act,
1949 in respect of amalgamation or dissolution
of Banking companies, and prescribes that such
specie of instruments, shall be stamped within
thirty days from the date of such order of the
National Company Law tribunal or, as the case
may be, the order of the Reserve Bank of India.
4) Now considering the two facets (distinguished
above in para 1) in the backdrop of the above
scheme of Section 17 of the Act, the following
deserves to be considered:
4.1 In accordance with the mandate of Section 17
of the Act if an order of the National Company Law
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Tribunal passed under Section 232 of the Companies
Act, 2013 sanctioning a scheme for reconstruction of
the company or companies involving merger or the
amalgamation of any two or more companies
executed in terms of the Act (in accordance with
Section 2(g)(iv) read with Section 2(l) and Schedule-
I of the Act) is brought before the Collector
(a) Under Section 31, in which case, the
limitation provided for under section 17 of the
Act would have no applicability, since
instruments that can be presented under
Section 17 of the Act could be stamped/
unstamped and/or executed/unexecuted.
(b) not under Section 31 of the Act but in the
course of his/her functional dispensation (under
the Act) and such instrument is found to be
unstamped or inadequately stamped, all
consequences relatable to such instrument as
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provided for under the Act can be invoked.
For instance, if an order to obtain a
certificate by endorsement under Section 32 of
the Act, to an order of NCLT is sought for, and
it is found that, the said order is unstamped,
two exigencies shall occasion
(a) Deficit stamp may be ordered to be paid,
and endorsement may be granted subject to
such order being presented within a month
from its date of passing as provided for under
Section 32 (3),
OR
(b) The Collector shall decline endorsement to
such order of NCLT, if it is not presented within
a month from the date of its passing, in which
case since such order has come to his notice
during the course of his functional
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dispensation, he shall proceed to invoke Section
33 read with Section 39 of the Act.
6) The question referred herein above is therefore
required to be answered accordingly.
C. WHETHER SECTION 32(3) OF THE STAMP
ACT DISABLING THE COLLECTOR FROM
ENDORSING ANY INSTRUMENT BROUGHT TO
HIM AFTER THE EXPIRATION OF THE ONE
MONTH FROM DATE OF ITS EXECUTION CAN
BE CONSTRUED AS AN ENABLING PROVISION
AUTHORIZING THE COLLECTOR TO IMPOUND
THE INSTRUMENT UNDER SECTION 33 OF
THE STAMP ACT?
1) Section 32 being a sequitur to Section 31 of the
Act, if an instrument is presented as a consequence
of the opinion received, such presentation if made of
an instrument not duly stamped or inadequately
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stamped and the said presentation comes within the
dispensation of official functions of the Collector, the
same may constitute a reason to believe for the
Collector, to impound the instrument.
2) This question referred herein above is therefore
required to be answered accordingly.
D. WHETHER THE GENERAL TIME LIMIT
PRESCRIBED UNDER SECTION 17 OF THE
STAMP ACT PROVIDING FOR STAMPING OF
THE ORDER OF THE NCLT WITHIN 30 DAYS
FROM THE DATE OF SUCH ORDER CAN BE
APPLIED WHEN SUCH ORDER/INSTRUMENT
ITSELF PERMITS THE APPLICANT TO
PRESENT THE ORDER BEFORE THE
COLLECTOR WITHIN 60 DAYS FROM THE
DATE OF THE RECEIPT OF THE ORDER?
1) A time period provided for in an instrument/order
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passed under the provisions of the Companies Act,
2013, cannot over-ride a statutory
provision/limitation prescribed under the Act, 1958.
2) It is well settled law that any limitation provided
for under a statute cannot be altered and amended
or extend by a Court of law. Limitation for
presentation as to determination/validation of
stamps being the mandate of a procedure, must be
adhered to and the law shall operate in the manner
provided for.
3) This question referred herein above is therefore
required to be answered accordingly.
E. WHETHER THE ACTION OF IMPOUNDING
THE SAID INSTRUMENT AND SUBJECTING IT
TO IMPOSITION OF PENALTY IS NOT
CONTRARY TO THE SCHEME AND
PROVISIONS OF THE STAMP ACT AND MORE
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PARTICULARLY SECTION 40 THEREOF,
WHICH VESTS A DISCRETION WITH THE
COLLECTOR OF NOT IMPOUNDING SUCH
INSTRUMENT EVEN IF PRESENTED BEYOND
THE PERIOD OF 30 DAYS BUT BEFORE THE
PERIOD OF 1 YEARS FROM THE DATE OF
SUCH INSTRUMENT?
1) As per the provision of Section 40 of the Gujarat
Stamp Act 1958, a person who has paid deficit stamp
duty shall present the Instrument to the Collector
within one year from the date of its execution and
offer to pay the amount of insufficient stamp duty
when the omission to duly stamp such instrument
has been occasioned by accident, mistake or
urgent necessity.
2) Thus, a consideration of the scheme of the above
provision requires the following eventualities to
occasion:
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(a) The person must present an instrument not
duly stamped within 1 year from the date of its
execution on his/her own volition.
(b)The omission to pay the due amount of
stamp must be owing to either (i) accident (ii)
mistake or (iii) urgent necessity.
3) If the above determinants for the exercise of
power under Section 40 of the Act are fulfilled, the
benefit flowing from it shall consequence subject to
the satisfaction of the Collector as to the fulfilment
of the prescribed determinants.
4) In the case on hand there are no such submissions
as to fulfilment of the determinants for triggering
Section 40 of the Act as culled out above. Moreover,
no attempt also seems to have been made by the
stamp defaulters to even invoke Section 40 of the
Act, vide a formal request/application.
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5) This question may therefore be answered
accordingly.
F. WHETHER THE CCRA HAS ERRED IN
REJECTING THE APPLICANT'S SUBMISSION
THAT THERE WAS NO DELAY ON FILLING OF
THE APPLICATION UNDER SECTION 31 OF
THE STAMP ACT, THE SAME HAVING BEEN
FILED WITHIN 30 DAYS OF THE EFFECTIVE
DATE UNDER THE SCHEME, ESPECIALLY
WHEN THE CONSIDERATION AMOUNT
PAYABLE UNDER THE SCHEME COULD NOT
HAVE BEEN COMPUTED UNLESS THE
SCHEME WAS MADE EFFECTIVE?
1) For the purposes of determining stamp, it is the
market value of the properties (which are the
subject of an instrument) on the date of execution
which shall be taken into consideration. Such is the
mandate of Section 2 (na) of the Act. 'Execution' is
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defined under Section 2 (i) of the Act, and in the
context of an order passed under Section 232 of the
Companies Act, 2013, the order as an instrument
shall be deemed to be executed on the date when it
is passed as per Section 17 of the Act, 1958. To this
effect the mandate of law is express and clear.
2) In that light of the mandate of the Act, 1958,
there shall be no intervention to the free flow of the
consequences of the provisions of the Act on account
of what the 'effective date' is as per the instrument
or for that matter as per the order of the Company
Court.
3) In the present case, the judgment and order dated
18.09.2019 passed by the Hon'ble National Company
Law Tribunal, Ahmedabad Bench under Section 230-
232 of the Companies Act 2013, is an instrument
which is signed in the State of Gujarat. Thus, the
instrument is considered to be executed in the State
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of Gujarat and signed on 18.09.2019.
4) Section 17 of the Act specifically provides for a
period of 30 days for stamping of order of the
National Company Law Tribunal. When the statute
specifically prescribes period within which the
instrument is to be stamped, the applicant company
is duty bound to comply with the statutory period of
limitation.
5) The instrument signed on 18.09.2019 has been
presented by the Applicant before the Collector on
13.11.2019 i.e. approximately in about 2 months
from the date of its execution. The certified copy of
the said order has also been received by the
Applicant on 30.09.2019 and therefore, the
instrument has not been submitted by the Applicant
before the Collector within one month from the date
of execution i.e. before 29.10.2019.
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6) The necessary corollary to the above events
therefore must be to hold that the CCRA has not
erred in holding that the instrument presented was
beyond the period of limitation.
7) This question referred hereinabove is therefore
required to be answered accordingly.
G. WHETHER THE IMPOSITION OF PENALTY
IS NOT DISPROPORTIONATE, EXCESSIVE,
UNREASONABLE, ILLEGAL AND UNJUST IN
ABSENCE OF ANY MENSREA ON THE PART OF
THE APPLICANT WHICH HAD ITSELF
PRESENTED THE SAID INSTRUMENT FOR
SEEKING OPINION OF THE COLLECTOR
UNDER SECTION 31 OF THE ACT AND WHICH
WAS WITHIN THE TIME STIPULATED IN THE
ORDER OF NCLT AHMEDABAD ITSELF?
1) Imposition of penalty is a consequence flowing
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from the invocation of Section 33 followed by the
process prescribed under Section 39 of the Act.
2) Determination of the quantum of penalty to be
imposed if the process of law as prescribed (and
described above) is followed shall be the discretion
of the Collector. In exercising such discretion, the
provisions of the Act, 1958 do not require
consideration of 'mensrea'. The Act however
provides that if a document not duly stamped is
presented by its holder voluntarily within a period of
1 year while supplementing such delay with reasons
as to justify such delay being relatable to a mistake,
accident or urgent necessity, then the collector
while assessing the justification may consider not
imposing a penalty at all.
3) The instrument of the Applicant has been
impounded under Section 33 of the Gujarat Stamp
Act, 1958 and the penalty is recoverable under the
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provisions of Section 39(1)(b) of the act. As per
Section 17 of the Gujarat Stamp Act, 1958, orders
sanctioning amalgamation of companies under the
Companies Act, are required to be stamped within
30 days from the date of the order. Therefore,
considering the period from the date of execution of
the instrument from which the stamp duty was to be
paid, and considering the fact, as per section 39(1)
of the Act, the penalty can be levied upto ten times
the amount of stamp duty, the imposition of penalty,
to the tune of Rs. 7,64,40,000/-, as against the stamp
duty of amount of Rs. 25,00,00,000/- in the present
case, cannot be termed as disproportionate,
excessive, unreasonable, illegal, or unjust.
4) This question referred herein above, would
therefore be have to be answered accordingly.
H. WHETHER THE CCRA OUGHT NOT TO
HAVE SET ASIDE THE ORDER OF COLLECTOR
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IMPOSING PENALTY, PARTICULARLY SINCE
THE COLLECTOR HAS FAILED TO ASSIGN ANY
REASONS WHATSOEVER FOR IMPOSITION OF
THE SAID PENALTY, AND IN ABSENCE OF
ASSIGNMENT OF REASONS BY THE
COLLECTOR, WHETHER THE CCRA HAS NOT
ERRED IN SUPPLANTING ITS OWN REASON
TO JUSTIFY THE IMPOSITION OF PENALTY?
1) In view of the facts of the case, the order passed
by the Collector and Additional Superintendent of
Stamps, is in consonance with the provisions of law,
as the instrument was not duly stamped within the
statutory time prescribed under the Act. Therefore,
the Petitioner, having not complied with the
mandatory requirement of law, the order passed by
the Collector and Additional Superintendent of
Stamps and confirmed by the CCRA is just and
proper and in accordance with law.
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2) Further, the CCRA, while considering the
submissions of the Petitioner, has given specific
findings on the submissions of the Petitioner and
therefore there is no error in the order passed by
CCRA.
3) The question referred herein above, may be
answered accordingly.
5.1 Ms. Lavkumar, learned Government Pleader in
support of her submissions would rely on the following
decisions:
(a) Hindustan Lever And Another vs. State of
Maharashtra And Another [(2004) 9 SCC 438];
(b) Inter State Amalgamation Scheme or
Arrangement Between Two Companies :
Determination of Payable Stamp Duty [2016 (3)
Mh.L.J 436];
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(c) State Of Gujarat and Another vs. Saw Pipes
Ltd. [2023 SCC OnLine SC 428]
6. Having considered the submissions made by learned
counsels for the respective parties, before we answer the
questions raised for consideration and opinion of this
court, it would be in the fitness of things to reproduce the
relevant provisions of the Stamp Act and the chronology
of events which are as under:
"2(g) "Conveyance" includes,-
(i) a conveyance on sale,
(ii) every instrument,
(iii) every decree or final order of any civil Court;
[(iv) every order made by National Company Law
Tribunal under section 232 of the Companies Act,
2013 (18 of 2013) in respect of a scheme for
reconstruction of the company or companies
involving merger or the amalgamation of any two or
more companies and every order made by the
Reserve Bank of India under section 44A of the
Banking Regulation Act 1949 (10 of 1949) in respect
of amalgamation or dissolution of Banking
companies, or;]
[(v) any writing or letter of allotment in respect of
the premises, given to its members or allottee by a
co-operative society registered or deemed to have
been registered under the Gujarat Co-operative
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Societies Act, 1961 (Gujarat X of 1962),or a
corporation or an association formed and registered
under the Bombay Non-Trading Corporation Act,
1959 (Bombay XXVI of 1959) or the Gujarat
Ownership Flat Act, 1973 (Gujarat 13 of 19 73) as
the case may be.]
by which property, whether movable or immovable,
or any estate or interest in any property is
transferred to, or vested in, any other person, inter
vivos, and which is not otherwise specifically
provided for by Schedule I;
Explanation. - For the purposes of this clause, an
instrument whereby a co-owner of any property
transfers his interest to another co-owner of the
property and which is not an instrument of
partition shall be deemed to be an instrument by
which property is transferred inter vivos',]
2(h)"duly stamped" as applied to an instrument
means that the instrument bears an adhesive or
impressed stamp of not less than the proper
amount and that such stamp has been affixed or
used in accordance with the law for the time being
in force in the State;
2(i) "executed" and "execution" used with
reference to instruments means "signed" and
"signature";
2(l) "instrument" includes every document by
which any right or liability is or purports to be
created transferred limited extended extinguished
or recorded but does not include a bill of exchange
cheque promissory note bill of lading letter of
credit policy of insurance transfer of share
debenture proxy and receipt;
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3. Instruments chargeable with duty. - Subject to the
provisions of this Act and the exemptions contained in
Schedule I, the following instruments shall be
chargeable with duty of the amount indicated in
Schedule I as the proper duty therefore respectively,
that is to say-
(a) every instruments mentioned in Schedule I,
which, not having been previously executed by any
person, is executed in the State on or after the date
of commencement of this Act;
[(aa) every instrument mentioned in Schedule I,
which not having been previously executed by or
on behalf of or in favour of the Government or any
local authority, is executed by or on behalf or in
favour of the Government or any local authority]
(b) every instrument mentioned in Schedule I,
which, not having been previously executed by any
person, is executed out of the State on or after the
said date, relates to any property situate, or to any
matter or thing done or to be done in this State and
is received in this State:
Provided that no duty shall be chargeable in
respect of-
(1) any instrument executed by or on behalf of, or
in favour of, the Government in cases where, but
for this exemption, the Government would be liable
to pay the duty chargeable in respect of such
instrument;
(2) any instrument for the sale, transfer or other
disposition, either absolutely or by way of
mortgage or otherwise of any ship or vessel, or any
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part, interest, share or property of or in ship or
vessel registered under the Bombay Coasting
Vessels Act, 1838 (XIX of 1938), or the Indian
Registration of Ships Act, 1841 (X of 1941).
17. Instruments executed in State. - All
instruments chargeable with duty and executed by
any person in this State shall be stamped before
or [at the time of execution or immediately
thereafter on the next working day following the
day of execution]
Provided that the clearance list described in
Articles 18A, 18B, 18C, 18D or 18E of Schedule I
may be stamped by an officer authorised by the
State Government by rules made under this Act, if
such clearance list is submitted for stamping by the
clearing house of an Association in accordance with
its rules and bye-laws with the requisite amount of
stamp duty, within two months from the date of its
execution.
[Provided further that the instrument, so far
as it relates to an order of-,
(i) the National Company Law Tribunal under
section 232 of the Companies Act, 2013 (18 of
2013) in respect of a scheme for reconstruction of
the company or companies involving merger or the
amalgamation of any two or more companies;
(ii) the Reserve Bank of India under Section 44A of
the Banking Regulation Act, 1949 (10 of 1949) in
respect of amalgamation or dissolution of Banking
companies,
shall be stamped within thirty days from the date of
such order of the National Company Law tribunal
or, as the case may be, the order of the Reserve
Bank of India.]
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31. Adjudication as to proper stamps. - (1)
When any instrument, whether executed or not and
whether previously stamped or not, is brought to
the Collector, and the person bringing it applies to
have the opinion of that officer as to the duty (if
any) with which it is chargeable, and pays a fee of
such amount [not exceeding one hundred rupees
and not less than twenty-five rupees] as the
Collector may, in each case direct, the Collector
shall determine the duty (if any) with which in his
judgement, the instrument is chargeable.
(2) For this purpose the Collector may require to
be furnished with an abstract of the instrument,
and also with such affidavit or other evidence as he
may deem necessary to prove 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 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 an 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 relived from any penalty which he
may have incurred under this Act by reason of the
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omission to state truly in such instrument any of
the facts or circumstances aforesaid.
[(3) Where an officer appointed as a Collector
under clause (f) of section 2 has reason 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, before assessing the stamp duty
under this section, refer the instrument to the
Collector of such district in which either the whole
or any part of the property is situate, for
determining, in accordance with the procedure laid
down in section 32A, the true market value of such
property and the proper duty payable on the
instrument.]
32. Certificate by Collector. - (1) 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
stamped, or
(b) the duty determined by the Collector under
section 31, or such a 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 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) Any instrument upon which an endorsement has
been made under this section, shall be deemed to
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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 has 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.
33. Examination and impounding of
instruments. - (1) [Subject to the provision of
section 32A, every person] having by law or
consent of parties authority to receive evidence,
and every person in charge of a public office except
an officer of police, before whom any instrument,
chargeable, in his opinion, with duty, is produced
or comes in the performance of his functions shall
if it appears to him that such instrument is not duly
stamped, impound the same.
(2) For that purpose every such person shall
examine every instrument so chargeable and so
produced or coming before him in order to
ascertain whether it is stamped with a stamp of the
value and description required by the law for the
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time being in force in the State when such
instrument was executed or first executed:
Provided that-
(a) nothing herein contained shall be deemed to
require any Magistrate or Judge of a Criminal
Court to examine or impound, if he does not think
fit so to do any instrument coming before him in
the course of any proceeding other than a
proceeding under Chapter XII or Chapter XXXVI of
the Code of Criminal Procedure, 1898 (V of 1898);
(b) in the case of a Judge of High Court, the duty of
examining and impounding any instrument under
this section may be delegated to such officer as the
Court may appoint in this behalf.
39. Collector's power to stamp instruments
impounded. - (1) When the Collector impounds
any instrument under section 33, or receives any
instrument send to him under sub-section (2)
section 37, not being an instrument chargeable
with a duty of twenty naye paise, or less, he shall
adopt the following procedure :-
(a) if he is of opinion that such instrument is duly
stamped or is not chargeable with duty, he shall
certify by endorsement thereon that it is duly
stamped, or that it is not so chargeable, as the case
may be;
(b) if he is of opinion that such instrument is
chargeable with duty and is not duly stamped he
shall require the payment of the proper duty or the
amount required to make up the same, together
with a penalty of five rupees; or, if he thinks fit, an
amount not exceeding ten times the amount of the
proper duty or of the deficient portion therefore,
whether such amount exceeds or falls short of five
rupees.
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Provided that, when such instrument has
been impounded only because it has been written
in contravention of section 13 or section 14, the
Collector may, if he thinks fit, remit the whole
penalty prescribed by this section.
(2) Every certificate under clause (a) of sub-
section (1) shall, for the purposes of this Act, be
conclusive evidence of the matters stated therein.
(3) Where an instrument has been send to the
Collector under sub-section (2) of section 37 the
Collector shall, when he has dealt with it is a
provided by this section, return it to the
impounding officer.
40. Instruments unduly stamped by
accident.. - If any instrument chargeable with duty
and not duly stamped, not being an instrument
chargeable with a duty of twenty naye paise or less
is produced by any person of his own motion before
the Collector within one year from the date of its
execution or first execution, and such person
brings to the notice of the Collector the fact that
such instrument is not duly stamped and offers to
pay to the Collector the amount of the proper duty,
or the amount required to make up the same, and
the Collector is satisfied that the omission to duly
stamp such instrument has been occasioned by
accident, mistake or urgent necessity he may,
instead of proceeding under sections 33 and 39,
receive such amount and proceed as next
hereinafter prescribed.
Article 20(d) of Schedule I :
20(d) CONVEYANCE, [so far as it relates to
scheme for reconstruction of the company or
companies involving merger or the amalgamation
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of any two or more companies by an order of the
National Company Law Tribunal under section 232
of the Companies Act, 2013 (18 of 2013) or for
amalgamation or dissolution of Banking Companies
by an order of the Reserve Bank of India under
Section 44A of the Banking Regulation Act 1949
(10 of 1949)]
CHRONOLOGY
Sr. Date Particulars
No.
1. 2019 A Scheme of Arrangement between
Vodafone Idea Limited ('Transferor
Company') and the Applicant and their
respective shareholders and creditors
('Scheme') was presented, inter alia, for
the transfer of the Fiber Infrastructure
Undertaking of the Transferor Company
and vesting of the same with the
Applicant on a going concern basis.
In consideration of the transfer of the
Fiber Infrastructure Undertaking of the
Transferor Company and vesting of the
same with the Applicant, the Applicant
was to pay to the Transferor Company
consideration equal to the carrying value
of net assets transferred, calculated as
the difference between the book value of
Assets and the book value of the
Liabilities transferred on the Appointed
Date (as defined in the Scheme) as
stipulated in Clause 8.1 of Part B of the
Scheme.
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2. 18.9.2019 National Company Law Tribunal,
Ahmedabad Bench, at Ahmedabad
('NCLT Ahmedabad') passed an order
('said instrument') sanctioning the
Scheme.
In paragraph 16 of the said instrument,
NCLT Ahmedabad directed as follows:
"The Petitioner Companies are directed
to file a copy of this order along with a
copy of the Scheme with the concerned
Registrar of Companies, electronically,
alongwith INC-28 in addition to physical
copy as per relevant provisions of the
Act as well as to Stamp Authority,
Gujarat - within 60 days of the receipt of
the order."
3. 30.9.2021 Certified copy of the said instrument was
made available by the Registry of NCLT
Ahmedabad
4. 15.10.2019 Certified copy of the said instrument was
filed by the Applicant/Transferor
Company before the Registrar of
Companies on 15.10.2019.
Therefore, Effective Date of the Scheme
is 15.10.2019 as per the terms of the
Scheme.
Consequently, the Appointed Date was
determined as 1.10.2019.
5. 12.11.2019 Chartered Accountant issued a
certificate that consideration to be paid
to the Transferor Company was Rs.4,639
crores, calculated as the difference
between the book value of Assets and the
book value of the Liabilities transferred
as on the Appointed Date i.e., 1.10.2019.
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6. 13.11.2019 The Applicant filed an application under
Section 31 of the Stamp Act before the
Collector thereby seeking his opinion as
to the proper stamp duty payable on the
said instrument.
The said application was filed within a
period of 30 days from the Effective Date
and within a period of 60 days of the
receipt of the said instrument.
7. 2019-2021 The Applicant did not receive any
communication from the Collector in
respect of its application dated
13.11.2019.
However, the Collector claims that it had
issued notices, purportedly under
Section 39(1)(b) of the Stamp Act on
29.1.2020, 12.3.2020, 20.7.2020,
12.10.2020, 21.12.2020, and 8.2.2021.
8. 16.3.2021 Collector issued a notice under Section
39(1)(b) of the Stamp Act, alleging that
the instrument has not been stamped
within the time limit prescribed under
Section 17 of the Stamp Act, and
intimated that a hearing was fixed on
19.4.2021.
9. 20.3.2021 Before receipt of the Collector's notice
dated 16.3.2021, the Advocate of
Applicants followed up with the Collector
about the status of the application dated
13.11.2019.
10. 19.4.2021 In view of personal difficulty of
Applicant's Advocate, time was sought
from the Collector.
11. 3.6.2021 Collector issued another notice under
Section 39(1)(b) of the Stamp Act, and
intimating about the hearing fixed on
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1.7.2021.
12. 1.7.2021 A reply was filed on behalf of the
Applicant before the Collector.
The Applicant showed its readiness and
willingness to pay the stamp duty of
Rs.25 crores, but raised objections in
respect of the proposed levy of penalty.
However, the Collector was not available
on 1.7.2021.
13. 29.7.2021 Collector issued another notice under
Section 39(1)(b) of the Stamp Act, and
intimating about the hearing fixed on
9.8.2021.
The said notice was delivered to the
Applicant's Advocates only on 12.8.2021.
14. 13.8.2021 The Applicant's Advocates addressed a
letter to the Collector informing that
they had received the notice of hearing
only on 12.8.2021 and requested for
fixing hearing on another date.
15. 21.8.2021 Collector issued another notice under
Section 39(1)(b) of the Stamp Act, and
intimated about the hearing fixed on
20.9.2021.
16. 25.10.2021 Collector passed an order demanding
stamp duty of Rs.25 crores and penalty
of Rs.7,64,40,000/-, without assigning
any reasons or basis for the said penalty
amount.
17. 10.1.2022 The Applicant made payment of stamp
duty of Rs.25 crores.
18. 19.1.2022 The Applicant filed an application under
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Section 53(1) of the Stamp Act before
the CCRA, challenging the Collector's
order dated 25.10.2021.
19. 24.6.2022 Following the hearing before CCRA on
16.6.2022, the Applicant filed written
submissions.
20. 28.11.2022 CCRA passed the impugned order,
confirming the Collector's demand of
penalty of Rs. 7,64,40,000/-.
Although no reasons for imposing the
said penalty amount were assigned by
the Collector, the CCRA observed that
the said amount of penalty was justified
in view of the lapse of time between the
date of instrument and actual date of
payment.
21. 20.1.2023 The Applicant filed an application under
Section 54(1A) of the Stamp Act before
the CCRA seeking reference of the
matter to this Hon'ble Court.
7. Now, we proceed to answer the questions referred
for the opinion of this court:
A. Whether the subject instrument being the order of
the NCLT Ahmedabad could have been impounded
under Section 33 of the Gujarat Stamp Act, 1958
('Stamp Act') and consequently subjected to duty
and penalty under Section 39 thereof, particularly
when the said instrument was presented under
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Section 31 of the Stamp Act for the purpose of the
opinion of the Collector, who would have no
jurisdiction to impound the same as held by the
Hon'ble Supreme Court of India in Government of
Uttar Pradesh & others v/s Raja Mohammed Amir
Ahmad Khan (AIR 1961 SC 787)?
7.1 It is an admitted fact that the Tribunal order dated
18.09.2019 is a 'conveyance' and therefore an
'instrument' as defined under Sections 2(g) and 2(l)
respectively. The Tribunal order dated 18.09.2019 was
presented to have an opinion of the Collector under
Section 31 of the Stamp Act on 13.11.2019. The
application was only for seeking an opinion to determine
with which the instrument is chargeable. Section 33 of
the Act provides that subject to the provisions of Section
32A every person having by law or consent of parties
authority to receive evidence and every person in charge
of a public office before whom an instrument chargeable
with duty is produced and it appears to him that the
instrument is not duly stamped, he can impound the
same. In the facts of the present case, the instrument
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was only presented for an opinion of the Collector as is
evident from the letter dated 13.11.2019.
7.2 Perusal of the submissions of the State also indicate
that the State concedes to the fact that in light of the
decision in the case of Raja Mohammed Amir Ahmad
Khan (supra) on an instrument presented for opinion
under Section 31 of the Act, there is no power to impound
the same. The relevant paragraphs of the decision in the
case of Raja Mohammed Amir Ahmad Khan (supra)
are as under:
"2. The decision of this appeal depends upon the
interpretation of ss, 31, 32 and 33 of the Stamp
Act. The relevant portion of s. 31 provides:-,
S. 31(1) "When any instrument,, whether
executed or not and whether previously stamped or
not,, is brought to the Collector and. the person
bringing it applies to have the opinion of that
officer as to the duty (if any) with which it is
chargeable, and pays a fee of such amount (not
exceeding five rupees and not less than eight
annas) as the Collector may in each case direct, the
Collector shall determine the duty (if any) with
which, in his judgment, the instrument is
chargeable."
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It is admitted that the document in dispute was
submitted to the Collector for his opinion under a.
31 and the opinion of the Collector was sought as
to what the duty should be. Under s. 32 of the Act
when such an instrument is brought to the
Collector, under a. 31 and he determines that it
was already fully stamped or he determines the
duty which is payable on such a document and that
duty is paid, the Collector shall certify by
endorsement on the instrument presented that full
duty with which it is chargeable has been paid and
upon such endorsement being made, the
instrument shall be deemed to be fully stamped or
not chargeable to duty as the case may be' Under
the proviso to s. 32, the Collector is not authorised
to make the endorsement if an instrument is
brought to him a month after the date of its
execution. Then follows s. 33 which is as follows:
S. 33 "Every person having by law or consent of
parties authority to receive evidence, and every
person in charge of a public office, except an
officer of police, before whom an instrument,
chargeable, in his opinion, with duty, is produced
or comes in the performance of his functions, shall,
if it appears to him that such instrument is not duly
stamped impound the same.
(2) For that purpose every such person shall
examine every instrument so chargeable and so
produced or coming before him in order t o
ascertain whether it is stamped with a stamp of the
value and description required by the law in force
in British India when such instrument was
executed or first executed: Provided that-
(a) nothing herein contained shall be deemed to
require any Magistrate or Judge of a Criminal
Court to examine or impound, if he does not think
fit so to do, any instrument coming before him in
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the course of any proceeding other than a
proceeding under Chapter XII or Chapter XXXVI of
the Code of Criminal Procedure, 1898;
(b) in the case of a Judge of a High Court, the duty
of examining and impounding any instrument
under this section may be delegated to such officer
as the Court appoints in this behalf.
(3) For the purposes of this section, in case of a
doubt,-
(a) the collecting Government may determine what
offices shall be deemed to be public offices; and (b)
the collecting Government may determine who
shall be deemed to be persons in charge of public
offices."
The decision of this appeal depends upon the
interpretation to be put upon the words "before
whom any instrument chargeable........................ is
produced or comes in the performance of his
functions".
Dealing with these words the High Court held:-
"With all respect, therefore, we agree that the
learned Judges deciding Chuni Lal Burman VS.
Board Of Revenue, U.P. AIR 1951 All 851, took a
correct view of the words " is produced or comes in
the performance of his functions" used in Section
33 of the Act to mean "that production of the
instrument concerned in evidence or for the
purpose of placing reliance upon it by one party or
the other."
The High Court was also of the opinion that the
object of paying the whole stamp duty was to get
the instrument admitted into evidence or its being
acted upon or registered or authenticated as
provided in ss. 32(3), 35, 38(1) and 48(1) of the
Stamp Act.
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(4) Counsel for the State referred to the various
sections of the Act; first to the definition
section; Section 2(11) which defines what is "duly
stamped"; s. 2(14) which defines "instrument"
and s. 9(12) which defines "executed". He then
referred to s. 3 which lays down what "chargeable"
means and then to s. 17 which provides that all
instruments chargeable with duty and executed by
any person in British India shall be stamped before
or at the time of the execution. Certain other
sections i.e. ss. 35 and 38(1) were also referred to
and so also ss. 40(1)(a), 41, 42 and 48 but in our
opinion it is not necessary to refer to these
sections. What has to be seen is what is the
consequence of a person applying to a Collector for
his determination as to the proper duty on an
instrument. The submission on behalf of the State
(appellant) was that if an instrument whether
'stamped or not is submitted for the opinion of the
Collector before it is executed, i.e., it is signed,
then the Collector is required to give his
determination of the duty chargeable and return
the document to the person seeking his opinion but
if the document is scribed on a stamped paper or
unstamped paper and is executed then different
consequences follow. In the latter case it was
submitted that under s. 33 the Collector is required
to impound the document if he finds that it is not
duly stamped. On the other hand it was submitted
on behalf of the respondent that on his giving his
opinion the Collector becomes functus officio and
can take no action under s. 33. It is these two rival
contentions of the parties that require to be
decided in this case.
(5) After an inordinately long delay, the Collector
determined the amount of duty payable and
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impounded the document. Power to impound is
given in s. 33 of the Act. Under that section any
Person who is a Judge or is in-charge of a public
office before whom an instrument chargeable with
duty is produced or comes in the performance of
his functions is required to impound the instrument
if it appears to him not to be duly stamped. The
question is does this power of impounding arise in
the present case?. The instrument in dispute was
not produced as a piece of evidence nor for its
being acted upon e.g. registration, nor for
endorsement as under s. 32 of the Stamp Act but
was merely brought before the Collector for
seeking his advise as to what the proper duty
would be. The words "every person............ before
whom any instrument............ is produced or comes
in the performance of his functions" refer firstly to
production before judicial or other officers
performing judicial functions as evidence of any
fact to be proved and secondly refer to other
officers who have to perform any function in regard
to those instruments when they come before them
e.g. registration. They do not extend to the
determination of the question as to what the duty
payable is. They do not cover the acts which fall
within the scope of s. 31, because that section is
complete by itself and it ends by saying that the
Collector shall determine the duty with which, in
his judgment, the instrument is chargeable, if it is
chargeable at all. Section 31 does not postulate
anything further to be done by the Collector. It was
conceded that if the instrument is unexecuted i.e.
not signed, and the opinion of the Collector is
sought, he has to give his opinion and return it with
his opinion to the person seeking his opinion. The
language in regard to exe- cuted and unstamped
documents is no different and the powers and
duties of the Collector in regard to those
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instruments are the same, that is, when he is asked
to give his opinion, he has to determine the duty
with which, in his judgment, the instrument is
chargeable and there his duties and powers in
regard to that matter end. Then follows s. 32.
Under that section the Collector has to certify by
endorsement on the instrument brought to him
under s. 31 that full duty has been paid, if the
instrument is duly stamped, or it is unstamped and
the duty is made up, or it is not chargeable to duty.
Under that section the endorsement can be made
only if the instrument is presented within a month
of its execution. But what happens when the
instrument has been executed more than a month
before its being brought before the
Collector? Section 31 places no limitation in regard
to the time and there is no reason why any time
limit should be imposed in regard to seeking of
opinion as to the duty payable.
(6) Chapter IV of the Act which deals with
instruments not duly stamped and which contains
as. 33 to 48, provides for impounding of
documents, how the impounded documents are to
be dealt with, Collector's powers to stamp
instruments impounded and how the duties and
penalties are to be recovered. It would be an
extraordinary position if a person seeking the
advice of the Collector and not wanting to rely
upon an instrument as evidence of any fact to be
proved nor wanting to do any further act in regard
to the instrument so as to effectuate its operation
should also be liable to the penalties which
unstamped instruments used as above might
involve. The scheme of the Act shows that where a
person is simply seeking the opinion of the
Collector as to the proper duty in regard to an
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instrument, he approaches him under s. 31. If it is
properly stamped and the person executing the
document wants to proceed with effectuating the
document or using it for the purposes of evidence,
he is to make up the duty and under s. 32 the
Collector will then make an endorsement and the
instrument will be treated as if it was duly stamped
from the very beginning. But if he does not want to
proceed any further than seeking the
determination of the duty payable then no
consequence will follow and an executed document
is in the same position as an instrument which is
unexecuted and unstamped and after the
determination of the duty the Collector becomes
functus officio and the provisions of s. 33 have no
application. The provisions of that section are a
subsequent stage when something more than mere
asking of the opinion of the Collector is to be
done."
7.3 The question therefore should not hold us for very
long as even the State has conceded to the fact that
powers under Section 31 of the Act are confined to the
administrative exercise of granting an opinion, when after
the Collector would become functus officio, there can be
no simultaneous invocation of the process provided for
under Section 33 of the Act. Consequentially when we
read Section 39 of the Stamp Act, which deals with the
Collector's power to stamp instruments impounded and
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impose penalty, for the reasons of holding that the
instrument presented for opinion cannot be impounded
would also lead us to hold that no penalty under Section
39 thereof can be imposed. The question is therefore
answered in the negative.
B. Whether the provisions of Section 17 of the Stamp
Act requiring an order of the National Company
Law Tribunal to be stamped within 30 days from
the date of such order could at all be made
applicable in respect of an instrument presented to
the Collector under Section 31 of the Stamp Act
and whether any proceedings could have been
initiated for a purported breach thereof?
8. Reading the impugned orders would indicate that
the Collector and in turn the Chief Controlling Revenue
Authority have held that since the order of the Tribunal
dated 18.09.2019 was presented under Section 31 to the
Collector on 13.11.2019, the application seeking such
opinion was time barred. It is the case of the company
that the certified copy of the instrument i.e. the order of
the Tribunal was delivered on 30.09.2019 and the copy
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was filed before the Registrar of Companies on
15.10.2019. Recourse was sought to the relevant clauses
of the scheme to suggest that in accordance with para 16
of the order it was open for the petitioner companies to
file a copy before the stamp authority within 60 days from
the receipt of the order.
8.1 The question therefore that is posed for opinion is
whether the provisions of Section 17 of the Stamp Act
may be made applicable to the order in question in the
facts of this case. Section 17 of the Stamp Act begins
with the heading '(C) Of the Time of Stamping
Instruments'. Reading Section 17 of the Act which in
itself is a stand alone provision indicates that all
instruments 'chargeable' with duty and executed by any
person shall be stamped before or at the time of the
execution or immediately thereafter. In the case of an
instrument such as an order of the Tribunal, as per the
proviso to the Section such instrument in respect of a
scheme for reconstruction of a company or companies
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shall be stamped within 30 days from the date of such
order of the Tribunal. This therefore clearly indicates
that all instruments chargeable with duty before or
at the time of execution such as the order of the
Tribunal shall be stamped within 30 days from the date of
such order. The mandate of the section therefore is clear
that an order of the Tribunal has to be stamped within the
prescribed time. The submission therefore of the
petitioner companies that as per the scheme they had 60
days to present an instrument, cannot be accepted as
they cannot be read to overlook the statutory provision.
8.2 Section 31 of the Stamp Act deals with 'Chapter - III
Adjudication as to Stamps'. Under this Section, though
for the purpose of seeking an opinion, the limitation of 30
days will not be applicable as the process thereunder is
that of giving an opinion or adjudicating on the stamp
duty chargeable, however, the provisions of Section 17 of
the Stamp Act mandate stamping of instruments within
30 days as in the case of the Tribunal's order. What is to
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be noted as the word used in Section 17 is 'stamped' and
not 'duly stamped' which term means a stamp affixed
being not less than the proper amount in accordance with
law. In other words, irrespective of an adjudication or an
opinion, an instrument has to be stamped either fully or
as perceived by the holder within 30 days in case of an
order of the Tribunal and therefore the provisions of
Section 17 of the Stamp Act requiring an order to be
stamped within 30 days would be applicable to an
instrument presented to the Collector under Section 31 of
the Act.
8.3 At this stage it may also be relevant to consider the
provisions of Section 32(3) of the Stamp Act which
suggests that on a failure to get an instrument stamped
within 30 days would suggest that there will be no
certification. Therefore, the only fall out of breach of
Section 17 timeline would be non certification of an
instrument.
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8.4 The scheme of adjudication is a separate mechanism
prescribed under Section 31 and consequences thereof
under Sections 32 and 33 of the Stamp Act. For failure to
adhere to the timeline no proceedings for breach as
impounding can be exercised. The question therefore is
answered accordingly i.e. so far as the applicability of
provision of Section 17 requiring an order of the Tribunal
to be stamped within 30 days is answered in the
affirmative and so far as whether any proceedings could
have been initiated for a purported breach thereof the
answer is in the negative.
C. Whether Section 32(3) of the Stamp Act disabling
the Collector from endorsing any instrument
brought to him after the expiration of one month
from the date of its execution can be construed as
an enabling provision authorizing the Collector to
impound the instrument under Section 33 of the
Stamp Act?
9. Section 32(3) of the Stamp Act disables the
Collector from endorsing any instrument brought to him
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after the expiration of one month from the date of its
execution. In light of the fact of having answered
Question A in the negative holding that a document
presented under Section 31 for the opinion of the
Collector cannot be impounded under Section 33 of the
Stamp Act and having opined that the only fall out for
having failed to stamp the instrument within 30 days
would be that the Collector will be disabled from
endorsing any instrument. The question is answered in
the negative inasmuch as there will be no authorization in
the Collector in impounding such an instrument under
Section 33 of the Stamp Act.
D. Whether the general time limit prescribed under
Section 17 of the Stamp Act providing for stamping
of the order of the National Company Law Tribunal
within 30 days from the date of such order can be
applied when such order/instrument itself permits
the applicant to present the order before the
Collector within 60 days from the date of the
receipt of the order?
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10. At the cost of reiteration, since the provisions of
Section 17 have been discussed while answering Question
B above, what is evident is that the order of the Tribunal
as per the provisions of Section 17 has to be stamped
within 30 days from the date of the order. It is the
contention of the company that as per the relevant
clauses of the scheme, which defined the terms
'appointed date' and 'effective date', it was open for the
companies to file the instrument before the stamp
authority within 60 days is contrary to the mandate of
Section 17 of the Act. Well settled it is that taxing
statutes are required to be strictly interpreted especially
when the language used by the legislature is plain and
unambiguous. In this context, it is well settled that a
limitation period provided under a statute cannot be
altered and amended or extended. The procedure must
be adhered to in the manner prescribed. The term in
section 17 is very clear that the Tribunal's order has to
be stamped within 30 days from the date of the
order. The Full Bench of the Bombay High Court in the
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case of Reliance Industries (supra) has unequivocally
held that the scheme of arrangement or amalgamation
and the order sanctioning the scheme would be an
instrument under section 2(l) of the Stamp Act. What is
chargeable to duty is the instrument and not the
transaction. Relevant paragraphs of the Full Bench
decision read as under:
"18. Section 3(a) of the Bombay Stamp Act, 1958
provides for chargeability of the instruments
covered under Schedule-I appended to the said Act,
when first executed in the State. As per section
2(i) the words "executed" and "execution" means
signed and signature. In this context the Order of
the Hon'ble High Court, Bombay was executed on
07/06/2002. As per section 2(d) an instrument
becomes chargeable on execution or first execution
after the commencement of the Bombay Stamp Act,
1958. Section 17 of the Bombay Stamp Act, 1958
provides for stamping of the instruments executed
in the State. This section makes it clear that any
instrument chargeable with duty executed in the
State is required to be stamped before or at the
time of execution or immediately thereafter or on
the next working day following the day of
execution. Considering all the provisions above, the
transferee- respondent no.1 in any event was
bound to pay the necessary duty as it stood on the
date of execution, i.e., 07/06/2002, the date of
passing of Order by this Court. Here it is pertinent
to note that the words "executed" and "execution"
represent signed and signature under the stamp
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Law. These words, however, do not represent
completion of an act, task, things or compliance of
any nature, to be done as per contents of the
document. Therefore it was obligatory on the part
of the Respondent no.1-transferee to approach
stamp Authority and pay the stamp duty on
execution of Order by this Court. The Respondent
no.1-transferee instead of fulfilling the legal
obligation cast on it, paid part of the stamp duty in
the State of Gujarat on the Order passed by
Hon'ble High Court of Gujarat which was passed
couple of months after the order passed by this
Court. Had the Respondent no.1-transferee fulfilled
its obligations in Law, the settling of any question
of Law would have never arisen.
19. Section 3 of the said Act is a charging section
and provides for charging stamp duties. As quoted
above, section 2 of the said Act defines the terms
"Conveyance" [2(g)], "Executed and Execution"
[2(i)], "Instrument" [2(l)] and "Settlement" [2(t)].
It is the settled position in law that in terms of the
scheme of the said Act, stamp duty is charged on
'the instrument' and not on 'the transaction'
effected by 'the instrument'.
20. The Order dated 7.6.2002 as stated earlier
would be the instrument and that was executed in
Mumbai, i.e., in Maharashtra. As per section
3 every instrument executed in State of
Maharashtra is chargeable to duty. The Order
dated 7.6.2002 whereby assets of Respondent no.2
transferor company are transferred to the
Respondent no.1-Transferee company, is the
instrument upon conjoint reading of section 2(g),
(l) and 3 of the Bombay Stamp Act. As per the
Scheme of the said Act, instrument is chargeable to
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duty and not the transaction and therefore even if
the Scheme may be the same, i.e., transaction
being the same, if the scheme is given effect by a
document signed in State of Maharashtra it is
chargeable to duty as per rates provided in
Schedule I. As per the Scheme of the Act, the
taxable event is the execution of the instrument
and not the transactions. If a transaction is not
supported by execution of an instrument, there can
not be a liability to pay duty. Therefore, essentially
the duty is leviable on the instrument and not the
transactions. Although the Scheme may be same,
the Order dated 7.6.2002 being conveyance and it
being an instrument signed in State of
Maharashtra, the same is chargeable to duty so far
as State of Maharashtra is concerned.
21. Although the two orders of two different high
courts are pertaining to same scheme they are
independently different instruments and can not be
said to be same document especially when the two
orders of different high courts are upon two
different petitions by two different companies.
When the scheme of the said Act is based on
chargeability on instrument and not on
transactions, it is immaterial whether it is
pertaining to one and the same transaction. The
duty is attracted on the instrument and not on
transaction.
22. As regards the amalgamation of Companies is
concerned, section 391 r/w. Section 394 of The
Companies Act, 1956, contemplates following steps
:-
(i) Formation of a Scheme mutually agreed by
the Transferor and the Transferee company ;
(ii) Holding of meeting for approval of the
Scheme ;
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(iii) The Order of the Court sanctioning the
Scheme ;
(iv) Filing of a Certified copy of the Order
sanctioning the Scheme with the Registrar of
Companies for registration ;
The transfer of any property or any interest in any
property on account of such amalgamation, takes
place pursuant to the Order passed by the Court
sanctioning the Scheme of amalgamation. This
aspect is clear in view of sub-section 2 of section
394 of the Companies Act, which specifically states
that, by virtue of an Order issued under Section
394(1), the property of the Transferor Company
gets transferred to and vests in the Transferee
company. Thus, the instrument, which effects
transfer, is the Order of the Court issued
under Section 394(1) that sanctions the Scheme
and not the Scheme of amalgamation itself. The
incident of transfer is the second stage referred to
in the aforesaid paragraph and not the first stage,
as such.
23. Therefore, the contentions of the respondents
that the Scheme of Amalgamation would be an
instrument within the meaning of Section 2(l) of
the said Act, is not legally sustainable. The Scheme
of Amalgamation by itself cannot and does not
result in transferring the property. It is the Order
of the Court that sanctions such a Scheme of
Amalgamation results in transferring the property
and it is therefore, this Order alone would be an
'instrument', as defined by the said Act, on which
stamp duty is chargeable. Therefore, the
contentions of the respondents that the parties
were liable to pay stamp duty on the sanctioned
Scheme (read with the two Orders) is not correct
and cannot be accepted.
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24. The provisions of Section 391 r/w. Section 394
of the Companies Act require obtaining of an Order
sanctioning the Amalgamation Scheme by both the
Transferor, as also, the Transferee Company. The
purpose and the object as to why both, the
Transferor and the Transferee company, have to
obtain the Order from the Court sanctioning the
Scheme of Amalgamation, is that, such a Scheme of
Amalgamation must bind the dissenting members,
as also, all the creditors of both the Companies and
not just for the purpose of effecting transfer of
property, assets etc. Apart from the aforesaid legal
aspect of the matter, as a matter of fact, in as much
as the present case is concerned, the chronology of
events separately submitted by the applicants
when considered demonstrates that the first Order
sanctioning the Scheme, was issued by this Court
on 7th June 2002 and the order states as under :-
"AND THIS COURT DOTH ORDER that with
effect from the Appointed Date, the
Assets/Undertakings of the Transferor
Company (as defined in the Scheme of
Amalgamation being Exhibit "E" to the
petition and in the Schedule hereto) shall
without any further act, instrument or deed
stand transferred to and vested in or deemed
to have been transferred to and vested in the
petitioner company pursuant to the provisions
of Section 391 to 394 of the Companies Act,
1956 so as to become the properties and
assets of the petitioner company."
Therefore, the order of this court sanctioning
the Scheme was not a conditional order,
which was to operate after the scheme was
also sanctioned by the Hon'ble Gujarat High
Court. By this Order dated 7.6.2002 of this
Court itself, it could be considered that the
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transfer was effected and therefore the said
Order of this Court is the 'order made by the
High Court under Section 394 of the
Companies Act 1956.............." as
contemplated by Section 2(g) (iv) of the said
Act.
For the same reason the order dated 7.6.2002
of this Court is the 'instrument', as
contemplated by the provisions of the said
Act.
However, it may also be mentioned that this
court in its order dated 7th June, 2002 has
further ordered as under :-
"AND THIS COURT DOTH FURTHER ORDER
that the petitioner company do within 30 days
of the sealing of this order, cause a certified
copy of this order to be delivered to the
Registrar of Companies, Maharashtra,
Mumbai for registration And upon such
certified copy of order being so delivered to
the Registrar of Companies, Maharashtra,
Mumbai And upon receipt of the oder
sanctioning the Scheme of Amalgamation by
the High Court of Gujarat at Ahmedabad and
upon receipt of the files and documents in
respect of Transferor Company from the
Registrar of Companies, Gujarat, the
Registrar of Companies, Maharashtra,
Mumbai shall place and register with him on
the files and documents kept by him in
relation to the petitioner company and shall
consolidate the files of the Transferor
Company and the petitioner company
accordingly."
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That part of the order of this court clearly
directs the Transferee Company to deliver to the
Registrar of Companies, Maharashtra, Mumbai for
registration, the certified copy of the order of this
court within 30 days of the sealing of the order,
without waiting for the Hon'ble Gujarat High Court
to pass appropriate order in regard to sanctioning
the Scheme. Thus, the implementation of the order
of this court was not made dependent upon passing
of an appropriate order sanctioning the Scheme by
the Hon'ble Gujarat High Court. This is the step
contemplated by the provisions of sub- section
3 of section 394 of the Companies Act."
10.1 The answer therefore is that the general time limit
prescribed under Section 17 of the Stamp Act would
apply to an order of the Tribunal. The question is
accordingly answered in the affirmative.
E. Whether the action of impounding the said
instrument and subjecting it to imposition of
penalty is not contrary to the scheme and
provisions of the Stamp Act and more particularly
Section 40 thereof, which vests a discretion with
the Collector of not impounding such instrument
even if presented beyond the period of 30 days but
before the period of 1 year from the date of such
instrument?
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11. Reading Section 40 of the Act which has also been
reproduced in the course of written submissions by the
State Government indicates that from the title itself it is
applicable to instruments which are unstamped by
accident. The circumstances to invoke Section 40 of the
Act and get the benefit of the extended period of a year
is only available when the omission to duly stamp such
instrument has been occasioned by accident, mistake or
urgent necessity. Reading the section would indicate that
as per the scheme in order to undertake the benefit
thereof the instrument not duly stamped must be within
one year from the date of its execution and such
presentation and omission to pay the duty must be owing
to the three circumstances narrated hereinabove. In the
facts of the present case, there are no eventualities or
circumstances to suggest any of the three ingredients for
invoking Section 40. The question therefore is answered
in the negative.
F. Whether the CCRA has erred in rejecting the
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Applicant's submission that there was no delay in
filing of application under Section 31 of the Stamp
Act, the same having been filed within 30 days of
the Effective Date under the Scheme, especially
when the consideration amount payable under the
Scheme could not have been computed unless the
Scheme was made effective?
12. We have while answering question D opined that
under the scheme of the Act though there may be no
limitation prescribed for filing an application for
presenting a document for adjudication or opinion,
Section 17 mandates that the assessee has to present an
instrument executed within the State within 30 days from
the date of the order.
12.1 There was therefore no question of interpreting the
provision otherwise as suggested by the company by
relying on the relevant clauses of the scheme to seek an
extended period of limitation. The instrument i.e. the
Tribunal's order was signed on 18.09.2019 and was
presented before the Collector on 13.11.2019
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approximately after two months from the date of its
execution. Even the certified copy of the order was
received on 30.09.2019. This was therefore also not
within the time limit of 30 days as per the mandate. The
CCRA therefore has not erred in holding that the
instruments presented were beyond a period of limitation.
The answer to the question is therefore No.
G. Whether the imposition of penalty is not
disproportionate, excessive, unreasonable, illegal,
and unjust, in the absence of any mens rea on the
part of the Applicant which had itself presented the
said instrument for seeking opinion of the
Collector under Section 31 of the Act and which
was within the time stipulated in the order of NCLT
Ahmedabad itself?
H. Whether the CCRA ought not to have set aside the
order of the Collector imposing penalty,
particularly since the Collector has failed to assign
any reasons whatsoever for imposition of the said
penalty, and in absence of assignment of reasons
by the Collector, whether the CCRA has not erred
in supplanting its own reason to justify the
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imposition of penalty?
13. Since both these questions are inter related, we
deem it fit to opine on them conjointly. As held by the
Apex Court in the case of Raja Mohammed Amir Ahmad
Khan (supra) that there can be no impounding of an
instrument presented for an opinion under Section 31 of
the Stamp Act, consequentially, proceedings under
Section 39 of the Act are also bad in law. Once having
presented the document for opinion/adjudication, albeit in
this case, beyond a period of 30 days, it is a clear case of
a perception of the company as well as the authority and
therefore it cannot be inferred that there was an intention
to evade payment of stamp duty. Section 39 indicates
that it deals with the power of the Collector to stamp
instruments impounded. As we have answered Question
A holding that instruments presented under Section 31
cannot be impounded, Section 39 cannot also be invoked.
The bonafides of the companies was apparent when on
the order passed by the Collector it willingly deposited an
amount of Rs.25 crores worked out on a consideration of
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Rs.4639 crores. There was no intention to avoid/evade
payment. Once having held thus, the penalty clause of
Section 39 could not be invoked. In the case of M/s.
Hindustan Steel Ltd. (supra), the Hon'ble Apex Court
has held as under:
"8. Under the Act penalty may be imposed for
failure to register as a dealer: s. 9(1) read with s.
25(1)(a) of the Act. But the liability to pay penalty
does not arise merely upon proof of default in
registering as a dealer. An order imposing penalty
for failure to carry out a statutory obligation is the
result of a quasicriminal proceeding, and penalty
will not ordinarily be imposed unless the party
obliged either acted deliberately in defiance of law
or was guilty of conduct contumacious or
dishonest, or acted in conscious disregard of its
obligation. Penalty will not also be imposed merely
because it is lawful to do so. Whether penalty
should be imposed for failure to perform a
statutory obligation is a matter of discretion of the
authority to be exercised judicially and on a
consideration of all the relevant circumstances.
Even if a minimum penalty is prescribed, the
authority competent to impose the penalty will be
justified in refusing to impose penalty, when there
is a technical or venial breach of the provisions of
the Act or where the breach flows from a bona fide
belief that the offender is not liable to act in the
manner prescribed by the statute. Those in charge
of the affairs of the Company in failing to register
the Company as a dealer acted in the honest
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and genuine belief that the Company was not a
dealer. Granting that they erred, no case for
imposing penalty was made out."
13.1 In the case of Trustees of H.C. Dhandha Trust
(supra), the Apex Court has observed as under:
"12. Only question to be determined in these
appeals is as to whether the imposition of ten times
penalty by the Collector of Stamps under Section
40 of the Indian Stamp Act, 1899 was validly
imposed or not.
15. Section 40 of Indian Stamp Act, 1899 provides
for Collectors power to stamp instruments
impounded. Section 40(1) which is relevant for the
present case which is as follows:
"40. Collectors power to stamp instruments
impounded. -- (1) When the Collector
impounds any instrument under section 33, or
receives any instrument sent to him
under section 38, sub-section (2), not being
an instrument chargeable with a duty not
exceeding ten naye paise only or a bill of
exchange or promissory note, he shall adopt
the following procedure: --
(a) if he is of opinion that such instrument is
duly stampeded or is not chargeable with
duty, he shall certify by endorsement thereon
that it is duly stamped, or that it is not so
chargeable, as the case may be;
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b) if he is of opinion that such instrument is
chargeable with duty and is not duly stamped,
he shall require the payment of the proper
duty or the amount required to make up the
same, together with a penalty of five rupees;
or, if he thinks fit, an amount not exceeding
ten times the amount of the proper duty or of
the deficient portion thereof, whether such
amount exceeds or falls short of five rupees:
Provided that, when such instrument has
been impounded only because it has been
written in contravention
of section 13 or section 14, the Collector may,
if he thinks fit, remit the whole penalty
prescribed by this section."
16. According to Section 40(1)(b) if the Collector is
of opinion that such instrument is chargeable with
duty and is not duly stamped, he shall require the
payment of the of the proper duty or the amount
required to make up the same, together with a
penalty of the five rupees; or, if he thinks fit, an
amount not exceeding ten times the amount of the
proper duty or of the deficient portion thereof. The
statutory scheme of Section 40(1)(b) as noticed
above indicates that when the Collector is satisfied
that instrument is not duly stamped, he shall
require the payment of proper duty together with a
penalty of the five rupees. The relevant part
of Section 40(1)(b) which falls for consideration in
these appeals is:
"or, if he thinks fit, an amount not exceeding
ten times the amount of the proper duty or
deficient portion thereof."
17. The amount of penalty thus can be an amount
not exceeding ten times. The expression "an
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amount not exceeding ten times" is preceded by
expression "if he thinks fit". The statutory scheme,
thus, vest the discretion to the Collector to impose
the penalty amount not exceeding ten times.
Whenever statute transfers discretion to an
authority the discretion is to be exercised in
furtherance of objects of the enactment. The
discretion is to be exercised not on whims or
fancies rather the discretion is to be exercised on
rational basis in a fair manner. The amount of
penalty not exceeding ten times is not an amount to
be imposed as a matter of force. Neither imposition
of penalty of ten times under Section 40(1) (b) is
automatic nor can be mechanically imposed. The
concept of imposition of penalty of ten times of a
sum equal to ten times of the proper duty or
deficiency thereof has occurred in other provisions
of the Act as well.
20. The legislative intent which is clear from
reading of Sections 33,35,38 and 39 indicates that
with respect to the instrument not duly stamped,
ten times penalty is not always retained and power
can be exercised under Section 39 to reduce
penalty in regard to that there is a statutory
discretion in Collector to refund penalty.
21. Section 39(1)(b) of the Indian Stamp Act, 1899
came for consideration before this Court in
Gangtappa and another vs. Fakkirappa, 2019(3)
SCC 788 (of which one of us Ashok Bhushan, J. was
a member). This Court noticed the legislative
scheme and held that the legislature has never
contemplated that in all cases penalty to the extent
of ten times should be ultimately realized. In
paragraph 16 following has been laid down by this
Court:
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"16. Deputy Commissioner under Section
38 is empowered to refund any portion of the
penalty in excess of five rupees which has
been paid in respect of such instrument.
Section 38 Sub-section (1) again uses the
expression "if he thinks fit". Thus, in cases
where penalty of 10 times has been imposed,
Deputy Commissioner has discretion to direct
the refund of the penalty in facts of a
particular case. The power to refund the
penalty Under Section 38 clearly indicates
that legislature have never contemplated that
in all cases penalty to the extent of 10 times
should be ultimately realised. Although the
procedural part which provides for
impounding and realisation of duty and
penalty does not give any discretion
Under Section 33 for imposing any lesser
penalty than 10 times, however, when
provision of Section 38 is read, the discretion
given to Deputy Commissioner to refund the
penalty is akin to exercise of the jurisdiction
Under Section 39 where while determining
the penalty he can impose the penalty lesser
than 10 times."
The expression "if he thinks fit" also occurs
in Section 40 sub-clause (b). The same
legislative scheme as occurring in Section
39 is also discernible in Section 40(b), there is
no legislative intentment that in all cases
penalty to the extent of ten times the amount
of proper stamp duty or deficient portion
should be realised. The discretion given to
Collector by use of expression "if he thinks
fit" gives ample latitude to Collector to apply
his mind on the relevant factors to determine
the extent of penalty to be imposed for a case
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where instrument is not duly stamped.
Unavoidable circumstances including the
conduct of the party, his intent are the
relevant factors to come to a decision.
22. The purpose of penalty generally is a
deterrence and not retribution. When a discretion
is given to a public authority, such public authority
should exercise such discretion reasonably and not
in oppressive manner. The responsibility to
exercise the discretion in reasonable manner lies
more in cases where discretion vested by the
statute is unfettered. Imposition of the extreme
penalty i.e. ten times of the duty or deficient
portion thereof cannot be based on the mere
factum of evasion of duty. The reason such as fraud
or deceit in order to deprive the Revenue or undue
enrichment are relevant factors to arrive at a
decision as to what should be the extent of penalty
under Section 40(1)(b).
23. We may refer to judgment of this Court in
Peteti Subba Rao vs. Anumala S. Narendra, 2002
(10) SCC 427. This Court had occasion to consider
in the above case provisions of Section 40 of the
Indian Stamp Act, 1899. Referring to Section
40 this Court made following observation in
paragraph 6:
"6.........The Collector has the power to
require the person concerned to pay the
proper duty together with a penalty amount
which the Collector has to fix in consideration
of all aspects involved. The restriction
imposed on the Collector in imposing the
penalty amount is that under no
circumstances the penalty amount shall go
beyond ten times the duty or the deficient
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portion thereof. That is the farthest limit
which meant only in very extreme situations
the penalty need be imposed up to that limit.
It is unnecessary for us to say that the
Collector is not required by law to impose the
maximum rate of penalty as a matter of
course whenever an impounded document is
sent to him. He has to take into account
various aspects including the financial
position of the person concerned."
24. This Court in the above case categorically held
that it is only in the very extreme situation that
penalty needs to be imposed to the extent of ten
times.
14. The questions (G) & (H) are accordingly answered in
the negative.
15. Thus, the reference is answered as follows:
Q. Question Of Law Answer
No.
A Whether the subject instrument NO
being the order of the NCLT
Ahmedabad could have been
impounded under Section 33 of
the Gujarat Stamp Act, 1958
('Stamp Act') and consequently
subjected to duty and penalty
under Section 39 thereof,
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particularly when the said
instrument was presented under
Section 31 of the Stamp Act for
the purpose of the opinion of the
Collector, who would have no
jurisdiction to impound the same
as held by the Hon'ble Supreme
Court of India in Government of
Uttar Pradesh & others v/s Raja
Mohammed Amir Ahmad Khan
(AIR 1961 SC 787)?
B Whether the provisions of Section So far as the
17 of the Stamp Act requiring an applicability
of provision
order of the National Company
of Section 17
Law Tribunal to be stamped within requiring an
30 days from the date of such order of the
Tribunal to
order could at all be made
be stamped
applicable in respect of an within 30
instrument presented to the days is
answered in
Collector under Section 31 of the
the
Stamp Act and whether any affirmative
proceedings could have been and so far as
whether any
initiated for a purported breach
proceedings
thereof? could have
been initiated
for a
purported
breach
thereof, the
answer is in
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the negative.
C Whether Section 32(3) of
the There will be
Stamp Act disabling the Collector no
authorization
from endorsing any instrument
in the
brought to him after the Collector in
expiration of one month from the impounding
such an
date of its execution can be
instrument
construed as an enabling provision under Section
authorizing the Collector to 33 of the
Stamp Act.
impound the instrument under
Section 33 of the Stamp Act?
D Whether the general time limit YES
prescribed under Section 17 of the
Stamp Act providing for stamping
of the order of the National
Company Law Tribunal within 30
days from the date of such order
can be applied when such
order/instrument itself permits
the applicant to present the order
before the Collector within 60 days
from the date of the receipt of the
order?
E Whether the action of impounding NO
the said instrument and subjecting
it to imposition of penalty is not
contrary to the scheme and
provisions of the Stamp Act and
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thereof, which vests a discretion
with the Collector of not
impounding such instrument even
if presented beyond the period of
30 days but before the period of 1
year from the date of such
instrument?
F Whether the CCRA has erred in NO
rejecting the Applicant's
submission that there was no
delay in filing of application under
Section 31 of the Stamp Act, the
same having been filed within 30
days of the Effective Date under
the Scheme, especially when the
consideration amount payable
under the Scheme could not have
been computed unless the Scheme
was made effective?
G Whether the imposition of penalty The
is not disproportionate, excessive, imposition of
unreasonable, illegal, and unjust, penalty is
in the absence of any mens rea on disproportion
the part of the Applicant which ate,
had itself presented the said excessive,
instrument for seeking opinion of unreasonable
the Collector under Section 31 of , illegal, and
the Act and which was within the unjust, in the
time stipulated in the order of absence of
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NCLT Ahmedabad itself? any mens rea
on the part
of the
applicant
H Whether the CCRA ought not to NO
have set aside the order of the As question
Collector imposing penalty, 'G' is
particularly since the Collector answered
has failed to assign any reasons holding on
whatsoever for imposition of the merits that
said penalty, and in absence of no penalty
assignment of reasons by the could have
Collector, whether the CCRA has been
not erred in supplanting its own imposed.
reason to justify the imposition of
penalty?
16. Thus, we answer the questions raised by the present
reference as aforesaid. Stamp Reference is accordingly
disposed of.
(BIREN VAISHNAV, J)
(NIKHIL S. KARIEL, J)
(D. M. DESAI, J)
DIVYA
