Gujarat High Court
Kapotex Industries Private Limited vs The State Of Gujarat on 13 January, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/9079/2024 ORDER DATED: 13/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9079 of 2024
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KAPOTEX INDUSTRIES PRIVATE LIMITED
Versus
THE STATE OF GUJARAT & ORS.
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Appearance:
MR HARDIK P MODH(5344) for the Petitioner(s) No. 1
MS NIDHI VYAS, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 13/01/2025
ORAL ORDER
1. Heard learned advocate Mr.Hardik P. Modh for the petitioner and
learned AGP Ms.Nidhi Vyas for the respondent-State.
2. Rule returnable forthwith. Learned AGP Ms.Nidhi Vyas waives
service of notice of Rule for the respondent-State.
3. Having regard to the controversy involved, which is in a narrow
compass, at the request of the learned advocates for the respective parties,
this petition is taken up for hearing.
4. The petitioner has prayed for the following reliefs:-
"(a) That this Hon'ble Court be pleased to issue Writ of declaration or any
other appropriate writ, order or direction to hold that relevant date under
Section 53 of the Gujarat Stamp Act for filing the application commences
from the date of receipt of the order and not from the date of the order
and consequently, direct the Respondents to condone delay in filing the
Civil Application and hear the application (Annexure F) on merits;
(b) That this Hon'ble Court be pleased to issue a Writ of Certiorari, or a
Writ in the nature of Certiorari or any other appropriate writ, calling for
the records of the order dated 03.04.2024 passed by Respondent No. 2
(Annexure I) andafter going into the legality, validity and propriety
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thereof, and to quash and set aside the impugned order dated 03.04.2024
passed by Respondent No.2 (Annexure I);
(c) That this Hon'ble Court be pleased to issue a Writ of Mandamus, or a
Writ in the nature of Mandamus or any other appropriate writ, todirect the
Respondents, their employees or any other officers, agents to hear the
application (Annexure E) principles of natural justice; on merit after
following
(d) That this Hon'ble Court be pleased to issue a Writ of Prohibition, or a
Writ in the nature of Prohibition, or any other appropriate Writ, Order or
prohibition, prohibiting the Respondents by themselves, their servants
and their agents from giving effect to and/or implementing the impugned
order dated 03.04.2024 passed by Respondent No.2 (Annexure I);
(e) That this Hon'ble Court be pleased to declare that the Petitioner has
rightly paid the stamp duty on the disputed transactions and therefore, the
Order dated 26.09.2023 in File No. Stamp/No./3019 passed by the
Respondent No. 3 (Annexure D) may be quashed and set aside with
consequential reliefs."
5. The petitioner is aggrieved by the order dated 03.04.2024 passed
by the respondent no.2-Chief Controlling Revenue Authority (Stamp &
Registration) under the provisions of the Gujarat Stamp Act, 1958 (for
short "the Stamp Act"), whereby the respondent no.2 has rejected the
appeal preferred by the petitioner challenging the order dated 26.09.2023
passed by the Deputy Collector, Stamp Duty Valuation Department,
Valsad for leavy of stamp duty on the ground of delay without
considering the date of service of the order under appeal.
6. Brief facts of the case are as under:-
6.1. The petitioner with a purpose of establishing a unit for
manufacturing of Textile Yarn entered into a Deed of Assignment on
04.07.2008 with M/s Mahajan Syntex (India) Pvt. Ltd. for a consideration
of Rs.23,51,000/-. The petitioner, therefore, on transfer of an undertaking
required for the rights to be absolute in the leasehold property, the
petitioner also executed a deed of conveyance with the said concerned in
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accordance with law.
6.2 The petitioner also entered into deed of assignment cum
conveyance deed dated 21.10.2015 with M/s. Daisy Industries for
transferring the entire A2 type shed No.504 having plot area of 1816
sq.mtrs. in the Industrial Area/Estate of Sarigam with structures. The
petitioner also sought permission from with GIDC to create charge over
the leasehold land. The petitioner with an intention to execute a deed of
further mortgage between the petitioner and the State Bank of India
approached the Stamp Duty Valuation Department on 03.03.2023. The
petitioner, however, came to know that the concerned department refused
to grant nod for execution for mortgage and issued a notice dated
14.06.2023 asking the petitioner to pay the deficient stamp duty of
Rs.36,41,260/- along with applicable penalty under Section 39(1) of the
Stamp Act. The petitioner filed a detailed reply on 10.07.2023 along with
relevant documents. The respondent no.3-Deputy Collector, Stamp Duty
Valuation Department, Valsad, however, by order dated 26.09.2023
directed to recover the deficient stamp of Rs.33,07,236/- along with
penalty of Rs.3,30,724/- from the petitioner.
6.3 It is the case of the petitioner that the petitioner received the order
dated 26.09.2023 on 03.10.2023 through post. Thereafter, the petitioner
filed an appeal before the respondent no.2 under Section 53 of the Stamp
Act beyond the period of limitation prescribed therein on payment of
non-refundable amount of Rs.1,000/- for every 30 days or part thereof.
The petitioner also deposited 25% of the total amount, which is a
condition precedent for filing the appeal on 28.03.2024.
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6.4 The petitioner also filed an application to condone the delay in
preferring the appeal beyond the period of 90 days, but before 180 days
considering the date of service of the order dated 03.10.2023. However,
respondent no.2 without considering the date of service of the order as
03.10.2023 for the purpose of computing the period of delay, considered
the date of the order i.e. 26.09.2023 and dismissed the appeal filed by the
petitioner on the ground that the appeal is filed after a period of 184 days
from the date of the order i.e. 26.09.2023. Being aggrieved, the petitioner
has preferred this petition.
7. Learned advocate Mr.Hardik Modh for the petitioner submitted
that as per the settled legal position, the respondent-Appellate Authority
ought to have called upon the petitioner to explain the delay beyond the
period of 90 days. It was further submitted that the Appellate Authority
could not have dismissed the appeal on the ground of delay considering
the date of the order instead of date of service of the order. Learned
advocate Mr.Modh in support of his submission has placed reliance on
the decision of this Court in the case of Sanjaybhai Jaikishanbhai Patel
vs. Chief Controlling Revenue Authority & Anr., rendered in Special
Civil Application No.517 of 2017, wherein while referring to the
judgment of the Hon'ble Apex Court, this Court has held that the date of
order would not be relevant for the purpose of Section 53 of the Stamp
Act, but it is the date of the communication, which would be relevant.
Reliance was also placed on the decision of this Court in the case of
Madhuben vs. Chief Controlling Revenue Authority and Ors.,
reported in 2019 SCC Online 6763.
8. On the other hand, learned AGP Ms.Nidhi Vyas submitted that the
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respondent no.2-Collector has rightly passed the impugned order
considering the date of the order as per the provisions of Section 53 of the
Stamp Act and rightly rejected the appeal filed by the petitioner, which is
admittedly beyond the period of 184 days.
9. Having considered the submissions made by learned advocates for
the respective parties and having gone through the materials on record. So
far as the submission made by learned advocate for the petitioner that the
respondent no.2 ought to have condoned the delay, it would be
convenient to refer Section 53 of the Stamp Act, which reads as under:-
"53. Control of and statement of case to Chief Controlling Revenue
Authority:
(1) The powers exercisable by a Collector under Chapter
III except sub section (3) of section 32A Chapter IV and
Chapter V and under clause (a) of the first proviso to section 27
shall in all cases be subject to the control of the Chief
Controlling Revenue Authority.
Provided that the Chief Controlling Revenue Authority shall not
entertain an application made by a person under sub-section (1)
unless
(a) such application is presented within a period of ninety days from
the date of order of the Collector.
(b) such person deposits twenty-five per cent of the amount of duty
or as the case may be, amount of difference of duty
payable by him in respect of subject matter of the
instrument for which application has been made.
(2) If any Collector, acting under section 31, section 32A,
section 39 or section 40, feels doubt as to the amount of duty with
which any instrument is chargeable, he may draw up a statement of
the case, and refer it, with his own opinion thereon, for the decision
of the Chief Controlling Revenue Authority.
(3) Such authority shall consider the case and send a copy of its
decision to the Collector, who shall proceed to assess and
charge the duty (if any) in conformity with such decision."
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10. A careful examination of the above provisions of Section 53 of the
Stamp Act, it is clear that the respondent-competent authority has to
exercise the discretion to condone the delay of further 90 days beyond a
period of 90 days. Therefore, the question arises from which date the
period of limitation is required to be considered. This Court in case of
Sanjaybhai Jaikishanbhai Patel (supra) after considering the above
provisions under Section 53 of the Stamp Act, has held as under:-
"8.It can thus be noticed that there is a bar against entertaining the
appeal if filed beyond the period of 90 days from the date of the order of
the Collector. The expression "date of the order of the Collector" would
give an impression as if the period of limitation would commence from
the moment the order is signed by him. However, if the decision in
Collector of Central Excise, Madras v. M. M. Rubber and Co., (supra)
is taken into consideration, it seems that the Supreme Court was
confronted with the almost similar factual situation and it was held in
paragraph No.9, 10 and 13 thus:
"9. The words "from the date of decision or order" used with
reference to the data for filing an appeal or revision under the
limitatatutory provisions had come up for consider certain
statumber of cases. We may state that uniformly is that in the case
of a person aggrieved the ratio of the filing the appeal or revision,
it shall mean the date decisions of communication of the decision
or order appealed against. However, we may note a few leading
cases on this aspect.
10. Under section 25 of the Madras Boundary Act, 1860 the
starting point of limitation for appeal byway of suit al- lowed by
that section was the passing of the Survey Officer's decision and in
two of the earliest cases, namely, Annamalai Chetti v. Col. J.G.
Cloete, [1883] ILR 6 Mad. 189 and Sesharnrna v. Sankara, [1889]
ILR 12 Mad. 1, it was held that the decision was passed when it
was communicated to the parties. In The Secretary of State for
India in Council v. Gopisetti Narayanaswami Naidu Guru, ILR 34
Madras 151, construing a similar provision in the Survey and
Boundary Act, 1897 the same High Court held that a decision
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cannot properly be said to be passed until it is in some way
pronounced or published under such circumstances the parties
affected by it have a reasonable opportunity of knowing what it
contains. "Till then though it may be written out, signed and dated,
it is nothing but a decision which the officer intends to pass. It is
not passed so long it is open to him to tear off what he has written
and write something else." In Raja Harish Chandra Raj Singh v.
The Deputy Land Acquisition Officer & Anr., [1962] 1 SCR 676
construing the proviso to Section 18 of the Land Acquisition Act
which prescribed for applications seeking reference to the Court, a
time limit of six weeks of the receipt the notice from the Collector
under Section 12(2) or within six months from the date of the
Collector's award whichever first expires, this Court held that the
six months period will have to be calculated from the date of
communication of the award. In Asstt. Transport Commissioner
(Administration) U.P. & Ors. v. Nand Singh, [1981] 1 SCR 131
construing the provision of Section 15 of the U.P. Motor Vehicle
Taxation Act, it was held that for an aggrieved party the limitation
will run from the date when the order was communicated to him.
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13. So far as the party who is affected by the order or decision for
seeking his remedies against the same, he should be made aware of
passing of such order. Therefore Courts have uniformly laid down
as a rule of law that for seeking limitation starts from the date on
which the order the remedy the was communicated to him on the
date on which it was pronounced or published under such
circumstances that the parties affected by it have a opportunity of
knowing of passing of the order and reasonable what it contains,
The knowledge of the party 870 affected by Such a decision, either
actual or constructive is thus an essential element which must be
satisfied before the decision can be said to have been concluded
and binding on him. Otherwise the party affected by it will have no
means of obeying the order or acting in conformity with it of
appealing against it or otherwise having it set. This is based upon,
as observed by Rajamanner, CJ in Muthia Chettiar v. CIT, supra
"a salutary and just principle". The application' of this rule so far
as the aggrieved party is concerned is not dependant on the
provisions of the particular statute, but it is so under the general
law."
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9. Similarly, this Court in Ladha Enterprise v. State of Gujarat
paragraph No.11 thus: & Ors., (Supra) has held in
"11. The term from the date of order of the Collector mentioned in
clause (a) of Section 53 (1) of the Act has been interpreted by this
Court (Coram: K.M. Thaker, J) in the judgment delivered in Special
civil Application No.8679 of 2012 Ramjibhai Shambhubhai
Koradia versus State of Gujarat, in the following terms:
15.4 However, if the order is passed some time after the hearing is
over and when the order is not passed or it is not pronounced in
presence of the concerned party, then the concerned party would
not be aware about the details of the decision-order and/or about
the date on which the adjudicating authority passed the order.
15.5 Consequently, in the cases where the order passed sometime
after as the hearing gets concluded and it in nofter her not
pronounced in presence of the concerned party or his not be able to
file application within 90 days from the date of oder as the
concerned party will come to know that any order is passed only
when the concerned party is informed the date of the order and the
decision of the first adjudicating authority or when copy of the
order is served to him.
15.6 Therefore, the phrase from the date of the order... has to be
construed keeping in focus the said fact.
15.7 The actual date of the considered and taken into order can
account as be the relevant date only if the order is passed or if it is
pronounced in presence of the concerned party or his
representative and the concerned party or his representative is
aware about the date of the order and the decision of the authority.
15.8 When the order is not passed or pronounced in presence of the
petitioner or his representative and when the petitioner is not aware
period about and/or informed about the order, of should not delay
be calculated- considered from the date of the order.
15.9 Otherwise, the purpose and object of the said section would
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become otiose and would be rendered ineffective.
15.10 So as to make the provision under Section 53 of the Act
meaningful and effective in real sense and if it has to serve its real
purpose and object, then the relevant date for the purpose of
determining and calculating the period of limitation in those cases
where the order is not passed or if the order is not pronounced in
presence of the concerned party or his representative should be the
date of the service of order to the concerned party.
16. Therefore, the competent authority under Section 53 of the Act
should not, mechanically and without further consideration, take
the date of the order as relevant date unless it is apparent and
evident from the record that the concerned party was aware about
or informed about the order and decision of the authority or that
the order was passed or pronounced in presence of the concerned
party.
16.1 In other cases, i.e. the cases where order is not passed or is not
pronounced in presence of concerned party his representative, it is
obligatory for the competent authority under Section 53 to ascertain
the date of service of order to the concerned party and to determine
and calculate the period of limitation from the relevant date, i.e. the
date of service/knowledge of the order to the concerned party.
16.2 Otherwise, the spirit and purpose of the said provision would
stand frustrated.
(emphasis supplied)
10.In view of the above settled legal position, it is required to be held
that it is not the date of the order which would be relevant for the
purpose of Section 53 of the Act, but it is the date of its communication.
Thus, clearly, the respondent No.1 has erred in taking a contrary view
and dismissing the appeal filed by the petitioner only on the ground of
limitation. The impugned order therefore cannot be sustained. It is
required to be quashed and set aside. Accordingly, the impugned order
is quashed and set aside and the case is required to be remanded on the
file of the respondent No.1 for its re consideration; without taking any
objection regarding limitation. Accordingly remanded. It is clarified that
the appeal would be entertained by the respondent No.1 only on
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compliance of the other requirements of Section 53 of the Act. Learned
Counsel for the petitioner states that the deposit of the amount as
indicated in Section 53 of the Act shall be made by the petitioner before
prosecuting the appeal."
11. In the case of Madhuben (Supra), this Court has held as under:-
"11. On careful examination of Section 53 of the Stamp Act, it
emerges that the legislature has not conferred power to condone the
delay on the competent authority beyond 180 days. However, it does
not mean that the period should be artificially curtailed by giving
restricted meaning and scope to the said section. In the facts of the
case, it is not in dispute that the delay is caused in filing the appeal
under Section 53 of the Stamp Act. The petitioner however, claims
that the order of the first adjudicating authority was served to the
petitioner on 4th March 2017 and therefore, prior thereto the
petitioner did not have any knowledge about the order. This fact is
also admitted by the learned AGP who has relied upon the
averments made in the affidavit-in-reply to confirm that the order was
served upon the petitioner on 4th March 2017.
12. In such circumstances, the competent authority under Section 53
of the Stamp Act should not mechanically and without further
consideration take the date of the order as relevant date unless it is
apparent and evident from the record that the order was passed and
pronounced in presence of the petitioner.
13. In that view of the matter, the competent authority under Section 53
of the Stamp Act should have called upon the petitioner to explain the
delay as per the provisions of Section 53 of the Stamp Act seeking
condonation of delay. The respondent no.1 admittedly has not undertaken
the said process and therefore, in the facts of the case when the
respondent no.1 has power to condone the delay in view of the
amendment to Section 53(1)(a) by proviso to entertain an appeal if the
same is filed beyond 90 days but within 180 days from the date of the
order if the respondent no.1 is satisfied that the petitioner was prevented
for sufficient reasons for filing the appeal.
14. In such circumstances, as the respondent no.1 authority has not
granted any opportunity of hearing to the petitioner to explain the delay
and has not considered the provisions of Section 53(1)(a) in its true
perspective, the petition is allowed in part and the impugned order dated
29th July 2017 is quashed and set aside and the petitioner is relegated
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back to the respondent no.1 to consider the appeal filed by the petitioner
in accordance with law after giving an opportunity of hearing to the
petitioner to explain the delay in filing the appeal and to consider
such explanation to condone the delay in preferring the appeal as per
the settled legal position for condonation of delay so as to render
substantial justice to the petitioner.
15. The petitioner shall deposit 25% of the amount determined by the
order dated 4th January 2017 which was refunded by the respondent
no.1 while rejecting the appeal vide order dated 29 th July 2017. The
petitioner shall deposit such amount within one month from the date of
receipt of writ of this order and thereafter, the respondent no.1 shall
consider and decide the appeal of the petitioner independently on its own
merits and on the basis of material available on record before it and
shall come to its own independent conclusion with regard to the
contention for condonation of delay in accordance with law. For such
purpose, the respondent no.1 shall inform the petitioner the date and time
of hearing and petitioner shall accordingly remain present and shall not
request for adjournment. All contentions available to the petitioner as
well as the department are kept open. The competent authority can
decide the appeal independently on its own merits without being
influenced by any order or observation made in this order"
12. Considering the above conspectus of law, respondent no.2-Authority
ought to have considered the date of service of the order upon the petitioner
as relevant date to compute the limitation. The respondent no.2-Authority
ought to have also granted an opportunity of hearing to the petitioner to
explain the delay instead of rejecting the appeal on the ground of delay
without considering the date of service of the order as relevant date in view
of the above settled legal position.
13. In such circumstances, as respondent no.2 has not granted any
opportunity of hearing to the petitioner to explain the delay from the date of
service of the order dated 03.10.2023 and in absence of consideration of the
provisions under Section 53 (1) (a) of the Stamp Act to consider the date of
service of the order as relevant date, the petition is allowed in part and the
impugned order dated 03.04.2024 is hereby quashed and set aside and the
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petition is relegated back to the respondent no.2 to consider appeal filed by
the petitioner in accordance with law after giving an opportunity of hearing
to the petitioner to explain the delay in filing the appeal considering the date
of service of the order passed by respondent no.3 on 03.10.2023 as relevant
date for computation of delay in filing the appeal and the explanation to
condone the delay in preferring an appeal as per the settled legal position so
as to render substantial justice to the petitioner and decide the application to
condone the delay in accordance with law. Such exercise shall be completed
within a period of 12 weeks from the date of receipt of the copy of this
order.
14. With the aforesaid direction and in view of the foregoing reason, this
petition is partly allowed. Rule is made absolute to the aforesaid extent. No
order as to costs. Direct service is permitted.
Sd/-
(BHARGAV D. KARIA, J)
ABHISHEK
