Madhya Pradesh High Court
Satish Pandey vs Commercial Tax Department on 10 March, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:6479
1 WP-15329-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 10th OF MARCH, 2025
WRIT PETITION No. 15329 of 2020
SATISH PANDEY AND OTHERS
Versus
COMMERCIAL TAX DEPARTMENT AND OTHERS
Appearance:
Shri Makbool Ahmad Mansoori, learned counsel for the petitioners.
Shri Kushagra Jain, learned Govt. Advocate for the respondents/State.
ORDER
1. This petition has been preferred by the petitioner challenging the
order dated 29.09.2017 (Annexure P/1) passed by the Collector of Stamps.
2. Case of the petitioner is that he was allotted plot No.9, Sudama
Nagar, Indore by respondent No.5 in the year 1994-95 which is a registered
society. The area of the plot is 100 square meter and the price paid by the
petitioner is Rs.8,911/-. Further case of petitioner is that after allotment of
plot he himself constructed house thereon. On account of some legal
complications the registered instrument in respect of plot was not executed
by the society. After obtaining permission for registration instrument for
registration was executed on 24.03.2015. The Registrar however took an
objection that value of the property was not correctly stated in the instrument
hence the matter was referred to the Collector of Stamps under Section 47-A
of the Indian Stamp Act. The Collector of Stamps by the impugned order has
NEUTRAL CITATION NO. 2025:MPHC-IND:6479
2 WP-15329-2020
held that the stamp duty will be calculated on the basis of value of the plot
and construction raised thereon and has further held that market value will be
determined in reference to the date of execution of agreement.
3. At the outset learned counsel for the petitioner submits that in
respect of allotment of plots by respondent No.5 society in favour of various
other plot holders a bunch of writ petitions were preferred before this Court
bearing W.P. No.6254/2012 (Gyanprakash V/s. State of M.P. and Others)
and other connected petitions which were decided by a common order dated
19.04.2018 in which it was held that the contention of the petitioners have
not been considered by the Collector of Stamps and have been rejected
without any justifiable reason. The matter was remanded back to the
Collector of Stamps for fresh decision. The operative part of the order reads
as under :-
"14. The next issue is as to whether while determining the market
value, only the value of the plot which has been allotted by the society
is to be taken into account or the value of the house which according to
petitioner has been constructed by him after allotment, could also be
taken into account.
15. Section 3 of the Stamp Act deals with the instrument chargeable
with duty. Instrument has been defined under Section 2 (14) of the Act
to include every document by which any right or liability is or
purported to be created, transferred, limited, extended, etc. Similarly
Section 2(10) of the Act defines conveyance to include a conveyance
on sale and every instrument by which property, whether moveable or
immovable is transferred inter vivos and which is not otherwise
specifically provided for by Schedule I. A perusal of the relevant
provision of the Act reveals that the stamp duty is payable on the value
of the property which is subject matter of transfer in the instrument.
16. Supreme court in the matter of State of UP and others Vs.
Ambrish Tandon and another reported in AIR 2012 SC 1140 in a case
where the owner was claiming the house to be residential property
whereas the Collector of stamps was treating the land as commercial
has held that nature of user is relatable to date of purchase and it is
relevant for the purpose of calculation of stamp duty.
17. This court also in the circumstances which are identical to the
NEUTRAL CITATION NO. 2025:MPHC-IND:6479
3 WP-15329-2020
present case in the matter of State of MP Vs. M/s Godrej G.E.
Appliances Ltd and others reported in 2008 RN 414, where the sale
deed was executed for open land and 68 sq.ft. old construction, has
held that market value cannot be determined on five storied building
and duty has to be paid on transfer affected by instrument, by holding
that:
"6. In my opinion this approach of the Collector and Commissioner
was illegal, misconceived and contrary to law with regard to the
imposition of duty of stamp. It is well settled in law that duty has to be
paid on a transfer effected by the instrument and not on the basis of
intentions or assumption of parties to the sale deed in question. In the
present case what is transferred is the open land only, there is nothing
in the sale deed to indicate that the so called five storied building or
superstructure said to be existing over the land is also transferred by
the sale deed in question."
18. Counsel for petitioner has also placed reliance upon circular No.
1245/तकनीक/2006 Bhopal dated 30th June 2006 issued by
Mahanirikshak Panjiyan MP to the effect that if after allotment of plot
the construction has been raised by allottee then stamp duty is payable
only on the value of the plot. Though this circular is in respect of
allotment by government and semi-government institutions but it
reflects position of law in respect of charging of stamp duty on such
instruments.
19. Having examined the impugned order, I am of the opinion that
petitioners have been held liable to pay the stamp duty at the market
rate on the value of land as also house constructed thereon. The sale
deed in question clearly mentions that allottee had constructed house
on the plot, but the impugned order reveals that petitioner's plea in this
regard has been rejected without any justifiable reason and without
holding any enquiry in this regard. The fact disclosed in the sale deed
either should have been accepted by the authorities or if authorities
intended to reject it, they should have assigned due and proper reason.
20. It has been pointed out that similar contention of another allottee
in WP No. 1656/06 in case of Smt. Gangabai and another Vs. Board of
Revenue and others has already been allowed by the Coordinate Bench
by judgment dated 15/1/2008 by setting aside the orders of Collector,
Commissioner and Board of Revenue and remanding the matter back to
the Collector (Stamps) Indore for consideration of the controversy
afresh.
21. For the reasons assigned aforesaid, the impugned orders of
Collector, Commissioner and Board of Revenue cannot be sustained
and are hereby set aside and the matter is remanded back to the
Collector of Stamps for fresh decision in respect of subject matter of
transfer in the instrument, after giving an opportunity of hearing and
conducting the enquiry, if required, in accordance with law. The signed
order be placed in the record of WP No. 6254/2012 and copy whereof
be placed in the record
of connected writ petitions."
NEUTRAL CITATION NO. 2025:MPHC-IND:6479
4 WP-15329-2020
4. It is further pointed out that in respect of one Smt. Gangabai
Solanki, who had also preferred W.P. No.1656/2006 before this Court similar
order was passed on 15.01.2008 pursuant to which the Collector of Stamps
had passed an order on 28.02.2009 (Annexure P/11) whereby while
determining the market value of the property the construction made over the
land was not considered and only the value of the plot was taken into
consideration.
5. By order dated 19.11.2020 passed in this petition the counsel for
the respondent/State was directed to seek instructions in respect of the order
passed by the Collector of Stamps pursuant to the order passed in W.P.
No.1656/2006. However from the record it is observed that no reply has been
filed in respect of the same. The reply which is available on record has not
adverted to this aspect of the matter at all.
6. Thus in the available facts of the case, the only irresistable
conclusion that can be drawn is that the petitioner has been discriminated
against inasmuch as a similar plot holder has been directed to pay the stamp
duty only for the plot and not for the construction made thereupon whereas
the petitioner has been directed to pay the stamp duty on land as well as the
construction. The said discriminatory treatment cannot be permitted to
continue.
7. As a consequence the impugned order dated 29.09.2017
(Annexure P/1) passed by the Collector of Stamps, respondent No.2 is hereby
quashed and the matter is remanded back to it to reconsider the case of the
petitioner in light of order dated 15.01.2008 passed in W.P. No.1656/2006
NEUTRAL CITATION NO. 2025:MPHC-IND:6479
5 WP-15329-2020
and the order dated 28.02.2009 (Annexure P/11) passed by respondent No.2
himself in respect of the petitioner of the aforesaid petition.
8. Respondent No.2 would also duly take into consideration the order
passed by this Court in W.P. No.6254/2012 and other connected petitions.
9. With the aforesaid direction, the petition stands disposed off.
(PRANAY VERMA)
JUDGE
ns
