Madras High Court

M/S.Design Creations [Mumbai] ... vs The Chief Controlling Revenue ... on 29 November, 2022

                                                                  WP.Nos.5864, 20043 & 30830 of 2015


                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 29.11.2022

                                                     CORAM:

                             THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                    WP.Nos.5864, 20043 & 30830 of 2015 &
                                             M.P.Nos.1, 1 & 1 of 2015

                   M/s.Design Creations [Mumbai] Pvt. Ltd.,
                   [now known as M/s.Leela Scottish Lace Pvt. Ltd.],
                   Leela Baug, Andheri-Kurla Road,
                   Andheri [East], Mumbai – 40059
                   Represented by its Directorate
                   Mr.Vinod Wadhumal Agnani                               ... Petitioner in
                                                                                all WPs
                                                         Vs

                   1. The Chief Controlling Revenue Authority
                      & Inspector General of Registration, Tamil Nadu,
                      Mylapore, Chennai – 600 028.

                   2. The District Registrar [Administration],
                      Pattukottai.

                   3. Pattukottai Sub Registrar Joint – II,
                      Pattukottai, Tamil Nadu.

                   4. M/s.Leela Scottish Lace Pvt. Ltd.,
                      [now known as M/s.Leela Lace Holdings Pvt. Ltd.]
                      Leela Baug, Andheri-Kurla Road,
                      Andheri [East], Mumbai – 400 059.            ... Respondents in

W.P.No.5084 of 2015

https://www.mhc.tn.gov.in/judis WP.Nos.5864, 20043 & 30830 of 2015

1. The Chief Controlling Revenue Authority & Inspector General of Registration, Tamil Nadu, Mylapore, Chennai – 600 028.

2. The District Registrar [Administration], Pattukottai.

3. Pattukottai Sub Registrar Joint – II, Pattukottai, Tamil Nadu.

4. M/s.Leela Scottish Lace Pvt. Ltd., [now known as M/s.Leela Lace Holdings Pvt. Ltd.] Leela Baug, Andheri-Kurla Road, Andheri [East], Mumbai – 400 059.

5. The Sub-Registrar, Alandur, Chennai – 16.

6. The Sub-Registrar, Ambattur, Chennai – 58.

7. The Sub-Registrar, Konnur, Chennai – 23. ... Respondents in W.P.

.No.20043 of 2015

1. The Chief Controlling Revenue Authority & Inspector General of Registration, Tamil Nadu, Mylapore, Chennai – 600 028.

2. The District Registrar [Administration], Pattukottai.

3. Pattukottai Sub Registrar Joint – II, Pattukottai, Tamil Nadu.

4. M/s.Leela Scottish Lace Pvt. Ltd., [now known as M/s.Leela Lace Holdings Pvt. Ltd.] Leela Baug, Andheri-Kurla Road, Andheri [East], Mumbai – 400 059.

https://www.mhc.tn.gov.in/judis WP.Nos.5864, 20043 & 30830 of 2015

5. The Sub-Registrar, Alandur, Chennai – 16. ... Respondents in W.P.No.25084 of 2015

Prayer in W.P.No.5864 of 2015 :- This Writ Petition is filed, under the Article 226 of Constitution of India, to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the impugned Order dated 06.01.2015 bearing No.26371/P1/2014, passed by the first respondent and quash the same and consequently direct the respondents 1 to 3 to drop all further proceedings in respect of the Indenture dated 19.04.05, registered as Document No.432 of 2005 in the Sub-Registrar's Office [Joint II], Pattukottai.

Prayer in W.P.No.20043 of 2015 :- This Writ Petition is filed, under the Article 226 of Constitution of India, to issue a Writ of Mandamus directing the first, fifth, sixth and seventh respondents to permit admitting and registration of documents in respect of the properties that are the subject matter of the Indenture of transfer dated 19.04.2005, registered as Doc. No.432 of 2005 in the office of the third respondent without citing the pendency of proceedings under Section 33A of the Indian Stamp Act.

Prayer in W.P.No.30830 of 2015 :- This Writ Petition is filed, under the Article 226 of Constitution of India, to issue a Writ of Certiorari calling for the records of the fifth respondent as contained in the impugned Order dated 12.09.2015 and quash the same.



https://www.mhc.tn.gov.in/judis
                                                                      WP.Nos.5864, 20043 & 30830 of 2015


                                  For Petitioner     : Mr.A.R.Karunakaran

                                  For Respondents    : Mr.J.Ravindran
                                                       Additional Advocate General
                                                       Asst by Mr.K.Tippu Sulthan
                                                       Government Advocate
                                                       - for R1 to R3 in W.P.No.5864 of 2015
                                                          for R1 to R3, R 5 to 7 in W.P.No.20043
                                                                                         of 2015
                                                          for R1 to R3 & R5 in W.P.No.30830
                                                                                         of 2015

                                                       No appearance – R4 in all WPs


                                                    COMMON ORDER

The Writ Petition in W.P.No.5864 of 2015 has been filed to quash the

impugned Order dated 06.01.2015 bearing No.26371/P1/2014, passed by the

first respondent and consequently direct the respondents 1 to 3 to drop all

further proceedings in respect of the Indenture dated 19.04.05, registered as

Document No.432 of 2005 in the Sub-Registrar's Office [Joint II],

Pattukottai.

2. The Writ Petition in W.P.No.20043 of 2015 has been filed to direct

the first, fifth, sixth and seventh respondents to permit admitting and

registration of documents in respect of the properties that are the subject

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matter of the Indenture of transfer dated 19.04.2005, registered as Doc.

No.432 of 2005 in the office of the third respondent without citing the

pendency of proceedings under Section 33A of the Indian Stamp Act.

3. The Writ Petition in W.P.No.30830 of 2015 has been filed to quash

the impugned Order of the fifth respondent dated 12.09.2015 directing the

petitioner to pay a sum of Rs.28,91,827 towards deficit stamp duty.

4. Brief facts leading to filing of these Writ Petitions are as follows :

The petitioner and the fourth respondent constituents of a group of

companies held by the same management. The petitioner and the group of

companies were engaged in the garment export business and had factories

and office at Madras, Karnataka and other states. The fourth respondent was

the absolute owner of the properties at Ambattur Indistrial Estate, SIDCO

Industrial Complex, Guindy, Amalapattu, Tanjore District etc. All the

properties are located within the State of Tamilnadu. In 2004 – 2005, the

petitioner was a subsidiary company of the fourth respondent which held

96.30% of the petitioner's total shareholding. Due to restructuring the

business of the group of companies, a petition has been filed for sanction of a

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Composite Scheme of Arrangement of Several of the Group of Companies.

By an Order dated 09.09.2005, the respondents sanctioned the scheme

presented by the said companies under the provisions of the Companies Act.

Under the said scheme only the garment business of the fourth respondent

stood transferred to the petitioner.

5. The 4th Respondent herein executed an Indenture of Transfer on 19-

04-2005 in favour of the petitioner whereby several properties belonging to

the 4th Respondent in Tamil Nadu were transferred to the Petitioner for a

consideration of Rs.25 Crores. As the 4th Respondent was intending to

purchase a property in Pattukottai to establish a liaison office there, it was

considered convenient for the travelling signatories of both companies that

the said Indenture of Transfer also be executed at Pattukottai on the same

day. The Registered Office of the 4th Respondent was at Plot No.22 (SP).

Thiru-vi-ka Industrial Estate, Guindy, Madras - 600 032 and the Registered

Office of the Petitioner was at Super A8 & 9, Guindy Industrial Estate,

Madras. The Appellants came within the Jurisdiction of the Registrar of

Companies. Madras, Tamil Nadu. The 4th Respondent held 96.30% of the

total shareholding in the Petitioner Company. Thus, the criteria for remission

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of stamp duty as contained in G.O.Ms No.1224, dated 25.04.1964 and

amendment issued by the Commercial Taxes and Religious Endowment

Department dated 25.01.1995 issued by the Government of Tamil Nadu were

squarely applicable to the transfer sought to be achieved by the 4 th

respondent for the petitioner herein under the said Indenture of transfer dated

19-04-05. All the criteria required by the Government Order were satisfied

and the 4th respondent and the petitioner were thus legally entitled for

remission of stamp duty as per the said Government Order. Additionally, the

Sub Registrar, Pattukottai made necessary enquiries directly with the

Registrar of Companies vide its letter dated 19.04.05 and Vide a letter dated

25.04.05 and the Deputy Registrar of Companies, Madras, Tamil Nadu

informed the Sub Registrar that the 4th Respondent was holding 96.30% of

the paid up share capital of the petitioner as required by the Government

Order. However, the 3rd Respondent, inspite of satisfying itself and

registering the indenture of Transfer on 19.04.2005 issued a letter dated

24.02.06 calling upon the petitioner to pay a sum of Rs. 1,99,99,900/- as

deficit stamp duty.

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6. The petitioner sent a reply with Annual Return and produced the

relevant documents. The shareholding pattern is also submitted to the

respondents. Even after that the second respondent all of a sudden issued an

order dated 20.07.06 disallowing the remission of stamp duty and directed

the Petitioner to pay deficit stamp duty of a sum of Rs.1,99,99,900/-. The

petitioner and the 4th respondent challenged the said order before the first

respondent. However, vide order dated 04.02.2009, the 1st respondent

confirmed the order passed by the 2nd Respondent. Aggrieved against the

order of the 1st respondent, the petitioner filed W.P.No.8034 of 2009 before

this Court and this Court by an order dated 10.10.2013 directed the 2nd

Respondent to issue a fresh show cause notice and proceed afresh.

Therefore, the impugned Order has been passed. It is the contention of the

petitioner that as per G.O.No.1244, the petitioner is entitled to exemption

from paying stamp duty and the appeal filed against the Order of the first

respondent has been dismissed. Hence, this Writ petition has been filed on

the ground that the Government Order is squarely applicable to the

petitioner's case and the petitioner is entitled for exemption from paying the

stamp duty.

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7. The counter has been filed by the first respondent stating that as the

petitioner did not fulfil the conditions set out in the Government Order,

action was taken by the second respondent under section 33[a] of Indian

Stamp Act and ordered for payment of stamp duty. The appeal filed against

the said Order also has been dismissed on the ground that the company has

not filed annual returns after 19.04.2005 and the company was unable to

produce the certified copy of the relevant records kept in the office of the

Registrar of Companies, Madras and the company has not produced any

evidence or proof to substantiate that the Companies were functioning in any

manner beneficial to the State of Tamil Nadu where from the concessions is

sought to be availed. It is their further contention that the company has not

produced the annual reports of the company covering the position on or after

19.04.2005 to prove that the fourth respondent held not less than 90% of the

issued share capital of the Petitioner Company as per the conditions laid

down in the notification issued in the Government Order No.1224. It is their

further contention that the Indenture of Transfer was written on the non

judicial stamp paper for the value of Rs.100/- under the impression that the

same was entitled for exemption of stamp duty in terms of the notification

issued in Government Order No.1224 Revenue dated 25.04.1964. After

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registration of the document by the third respondent, on verification it is

found that the petitioner is not entitled for refund of Stamp Duty as per

G.O.Ms.1224 Revenue dated 25.04.1964 as the Company has not fulfilled

the conditions stipulated in the Government Order. District Registrar,

Pudukottai, issued a certificate as provided under section 33[a] of the Indian

Stamp Act. Hence, it is his contention that the company has filed the Annual

Returns only for the period upto 29.09.2004 and thereafter, without filing any

annual returns, shifted its registered office from Madras to Maharashtra on

03.06.2005. Hence, according to the respondents, the registered office has

been shifted to Madras only for the purpose of availing the concession as per

the Government Order. Hence, opposed the Writ petition.

8. The Writ Petition No.30830 of 2015 has been filed challenging the

impugned Order dated 12.09.2005 passed by the fifth respondent for

claiming an additional amount. It is the contention of the petitioner that when

the Indenture of Transfer was registered originally an impugned Order has

been issued for deficit stamp duty of Rs.1,99,99,900/-. When the Writ

Petition is pending, the present impugned Order dated 12.09.2005 has been

passed by the respondent for collecting extra amount of Rs.28,91,827/- on

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the ground that the valuation of one of the properties in the said indenture of

transfer dated 19.04.2005, registered as document No.432 of 2005 in the

office of the Sub Registrar, Pattukottai was undervalued at that time. Hence,

the said communication has been challenged mainly on the ground that the

same is without jurisdiction and without affording a hearing to the petitioner

or holding an inquiry. It is their further contention that the impugned Order

is passed contrary to Section 33[a] of the Indian Stamp Act.

9. Counter has been filed in the above matter stating that originally

recovery certificate was issued for deficit stamp duty of Rs.1,99,99,900/-

under Section 33A of the Indian Stamp Act. On the basis of the value of the

property declared in the said document, the said amount has been paid on

28.02.2015 towards deficit stamp duty. The deficit registration fees of

Rs.25,70,512 and deficit registration fees of Rs.3,21,315/- which are due to

the Government based on the guideline value of the property has not been

paid. Therefore, a communication has been sent for payment of deficit stamp

duty. Hence, submitted that the petitioner is liable to pay that amount.

10. The learned counsel appearing for the petitioner would submit that

the main issue revolve in these writ petitions is the applicability of the

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G.O.Ms.1224 Revenue dated 25.04.1964. According to the petitioner, the

Government Order exempt the Stamp Duty in respect of transfer made by

companies. Therefore, when the exemption is granted by the Government

and the petitioner fulfilled all the conditions as per the Government Order,

the same cannot be denied by the authorities. The Government Order itself

indicate that what is required is only the registered office in the State of

Tamilnadu. Hence, it is his contention that, when the petitioner's registered

office was temporarily in Madras, the petitioner is certainly entitled to

exemption granted by the Government of Tamilnadu. Therefore, rejecting the

same on the ground that the accounts have not been produced cannot be

sustained in the eye of law. In support of his contentions, he relied on the

following judgments :

A.V.Fernandez Vs. The State of Kerala reported in AIR

1957 Supreme Court 657

Checkmate Services P. Ltd., Vs. Commissioner of

Income Tax -I in Civil Appeal No.2833 of 2016

Union of India and another Vs. Azadi Bachao Andolan

and another – in Civil Appeal No 8161, 8162, 8163 and 8164

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of 2003

Vodafone International Holdings B.V. Vs. Union of

India & another in Civil Appeal No.733 of 2012.

and submitted that statutory enactment must ordinarily construed in its

language and that no words should be added, altered or modified unless it is

plainly necessary to do so in order to prevent a provision from being

unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with

the rest of the statute and the petitioner is entitled for exemption of stamp

duty. Hence, the Order rejecting exemption and claiming Rs.1,99,99,900/-

towards Stamp Duty has to be set aside. It is his further contention that

subsequently, he has paid that amount. When the petitioner company wanted

to sell a portion of the property, the amount has been paid only under protest.

Therefore, the said amount is required to be returned to the petitioner.

11. As far as the Writ Petition in W.P.No.20043 of 2015 is concerned,

the learned counsel appearing for the petitioner fairly submitted that the very

prayer is to direct the respondents 1, 5, 6 and 7 to register the document and

as the document has been subsequently registered, the prayer in this Writ

Petition has become infructuous.

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12. As far as the Writ petition in W.P.No.30830 of 2015 is concerned,

the learned counsel appearing for the petitioner submitted that certificate

under section 33[a] has been issued for recovery of deficit stamp duty of

Rs.1,99,99,900/- in the year 2006, within one year from the date of

registration, i.e., 19.04.2005. Now after 10 years of registration, further

demand has been made claiming deficit stamp duty of a sum of

Rs.28,91,827/- without any enquiry or determination, which is totally against

the provision of law and no such demand can be made based on the guideline

value, that too without any enquiry. Hence, the above Order demanding

further sum of Rs.28,91,827/- has to be quashed.

13. Whereas, the learned counsel appearing for the learned Advocate

General would submit that the intention of the Government Order is to

encourage the companies within the State of Tamilnadu. Whereas, only for

the purpose of registering the property, the registered office has been shifted

to Madras from Mumbai and after transfer was effected, again the registered

office has been shifted on 03.06.2005. No annual return, whatsoever

maintained in the registered office as required in the original Government

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Order has been produced to avail benefits. The very intention of the

Government Order is to encourage the companies in Tamilnadu to avail

benefits. Whereas, only for the purpose of avoiding huge stamp duty, taking

note of the fact that the proviso was amended to the effect that the registered

office should be in Madras, the registered office of the petitioner company

and the fourth respondent company shifted to Madras for avoiding stamp

duty. Therefore, it is his contention that the conduct of the petitioner is

nothing but fraud on Registration and Stamp Duty and such things cannot be

entertained by giving narrow interpretation to the Government Order. Hence,

it is his contention that the property worth about Rs.25 crores has been

registered even without paying a single pie towards stamp duty. It has been

objected and demand notice for recovery of a sum of Rs.1,99,99, 900/- has

been issued. Immediately after the registration of the Indenture of Transfer

on 19.04.2005, a portion of the property has been sought to be sold by the

petitioner. At that time, when the document was not admitted and for the

purpose of further sale, stamp duty was paid in respect of the Indenture of

Transfer dated 19.04.2005. Thereafter, it is found that at the time of issuing

certificate under section 33[a] of the Indian Stamp Act, the stamp duty has

been collected on the basis of the value set out in the document. Further

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demand has been issued on the basis of the guideline value. Therefore,

according to him, the same will also fall under the ambit of statutory

provisions and the same cannot be questioned in the Writ Petition. Hence,

prays to dismiss the Writ Petition.

14. The first Writ Petition, i.e., W.P.No.5864 of 2015 has been filed

mainly challenging the impugned Order claiming Stamp Duty of

Rs.1,99,99,900/- on the basis of the Government Order No.1224. In the

above Government Order, Clause 38 reads as follows :

“[38] Instrument evidencing transfer of property between

companies limited by the shares in the Companies Act, 1956, in

a case whee [i] at least 90 percent of the issued share capital of

the transferee company is in the beneficial ownership of the

transferor company or [ii] where the transfer takes place

between a parent company and a subsidiary company one of

which is the beneficial owner of not less than 90 per cent of the

issued share capital of the other, or [iii] where the transfer takes

place between two subsidiary companies of each of which not

less than 90 per cent of the share capital is in the beneficial

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ownership of a common parent company;”

15. A perusal of the above clause indicate that to avail benefit in the

above Government Order, atleast 90% of the issued share capital of the

transferee company is in the beneficial ownership of the transfer or where the

transfer takes place between a parent company and subsidiary company one

of which is beneficial owner of not less than 90% of the issued share capital

of the other or where the transfer takes place between two subsidiary

companies of each of which not less than 90 per cent of the share capital is in

the beneficial ownership of a common parent company provided that a

certified copy of the relevant records of the companies kept in the office of

the Registrar of companies Madras is produced by the parties to the

instrument to prove that the conditions above prescribed are fulfilled. The

above Government Order, however, has been amended on 25.01.1995 as

follows :

“Provided that a certified copy of the relevant records of the

companies kept in the office of the Registrar of companies

Madras is produced by the parties to the instrument to prove that

the conditions above prescribed are fulfilled”

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16. The remission will apply only in case where the properties situate

in the State of Tamilnadu or their registered office in the State of Tamilnadu.

It appears that pursuant to the above amendment, the Registered Office of

the petitioner company and the fourth respondent company were shifted to

Madras on 01.03.2005 and registered the Indenture of Transfer on

19.04.2005. After the registration of the Indenture of Transfer, again the

registered office has been shifted to original place in Mumbai. These facts

are not in dispute. The Indenture of Transfer has been registered and the total

market value of the immovable property shown in the Indenture of Transfer

is a sum of Rs.25 crores. Originally, notice has been issued on 24.02.2006

demanding Rs.1,99,99,900 Stamp Duty on the criteria that 90% of the issued

share capital of the transferee company is in the beneficial ownership of the

common parent company has not been established. The impugned Order

further indicate that on the date of Indenture of Transfer an extent 1.5 cents

were purchased and when the presentation of sale deed has been questioned,

the Registered Office was transferred to Tamilnadu and only a small extent

of land has been purchased to show that as if the property is situated in

Tamilnadu. The above impugned Order dated 09.02.2009 has been

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challenged before this Court in W.P.No.8034 of 2009 and the Writ Petition

has been allowed setting aside the Order and was remanded to the second

respondent with a direction to issue a fresh show cause notice. Thereafter.

onceagain the impugned Order has been passed. In impugned Order dated

06.01.2016, it is clearly recorded to the effect that the company has filed

annual reports for the period upto 29.09.2004 and thereafter, without filing

any annual report, shifted its registered office to Mumbai on 03.06.2005.

The appellant, viz., the petitioner has not produced the certified copy of the

relevant records of the Companies kept in the Office of the Registrar of

Companies, Madras as per the proviso to Item No.38 of the notification

issued by the Government in G.O.Ms.1224 Revenue dated 05.04.1964 to

prove that the conditions specified as per first proviso were fulfilled for

availing the remission of stamp duty as on 19.04.2005 and immediately after

registration, within 45 days the registered office has been shifted to Mumbai.

Therefore, Revenue Authority has held that the company has not produced

any evidence to substantiate that the companies were functioning in any

manner beneficial to the State of Tamilnadu where the concession sought to

be availed and rejected the claim of the petitioner.

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17. The Government Order indicate that the benefit is to be extended to

the companies where the property is situate within the State of Tamilnadu,

where the registered office situate in Madras. It is relevant to note that the

very object of granting such exemption is to promote companies who are

operating inside the State to avail the benefits. Merely taking advantage of

the proviso in the Government Order that the registered office of the

Company to be in Madras to avail such benefit, the registered office of the

company has been shifted to Madras only for that purpose. The annual

returns were filed up to 29.04.2004 and after registering the document on

19.04.2005, the petitioner's registered office has been once again shifted to

Maharashtra on 03.06.2005, within a period of 45 days from the date of

execution of the Indenture of Transfer. Hence, this Court is of the view that

when the Government Order provides certain exemption, the conditions

stipulated in the Government Order has to be strictly complied for availing

any benefit. Particularly, the Government Order granting exemption in fiscal

matters, the conditions set out to avail such benefit has to be strictly

complied, particularly for availing such benefits. Shifting the registered office

for the purpose of avoiding huge stamp duty and shifting the registered office

immediately within a short span of 45 days after registration, it can be easily

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inferred that the registered office has been transferred only to avoid stamp

duty payable legally in the State. The act of the petitioner is nothing but clear

fraud on the Stamp and Registration and such things cannot be encouraged.

18. In Polester and Co. Ltd. etc. Vs. Addl. Commissioner of Sales Tax,

New Delhi reported in AIR 1978 Supreme Court 897, the Honourable

Supreme Court in para 12 has held as follows :

“It must also be remembered that section 5(2)(a)(ii) and the Second Proviso occur in a taxing statute and it is a well settled rule of interpretation that in construing a taxing statute "one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law". The oft quoted words of Rowlett, J., in Cape Brandy Syndicate v. Inland Revenue Commissioner(1) lay down the correct rule of interpretation in case of a (fiscal statute : "in a taxing. Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used". It is a rule firmly established that "the words of a taxing Act must never be stretched against a tax-payer". If the legislature has, failed to clarify its meaning by use of appropriate language, the benefit must go to the tax-payer. Even if there is any doubt as to

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interpretation, it must be resolved in favour of the subject. We would, therefore, be extremely loathe to add in section 5(2)(a) (ii) and the Second Proviso words which are not there and which, if added, 'would have the effect of imposing tax liability on the purchasing dealer. Moreover, it may not noted that if the purchasing dealer resells the goods outside Delhi, then, on the construction contended for on behalf of the Revenue, he would be liable to include the price of the goods paid by him in his return of taxable turnover and pay tax on the basis of such return and if he fails to do so, he would expose himself to penalty, through he has complied literally with the declaration made by him. We find that in fact a penalty of Rs. 2 lacs has been imposed on the assessees in Civil Appeal No. 1085 of 1977 for not including the price of the goods purchased by them in their return of taxable turnover and paying tax on the basis of such return. It would be flying in the face of well settled rules of construction of a taxing statute to read the words 'inside the Union Territory of Delhi' in section 5(2)(a)(ii) and the Second Proviso, when the plain and undoubted effect of the addition of such words would be to expose a purchasing dealer to penalty.”

19. In the above judgment the Honourable Apex Court has further held

that if there is one principle of interpretation more well settled preposition, it

is that a statutory enhancement must ordinarily be construed according to the

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plain natural meaning of its language and that no words should be added,

altered or modified unless it is plainly necessary to do so in order to prevent

a provision from being unintelligible, absurd, unreasonable, unworkable or

totally irreconcilable with the rest of the statute, this Court is of the view that

to avail any such benefits under the statute strict compliance of the

concession is sine qua non. The very impugned Order itself clearly indicate

that though the registered office is shifted to Madras for the purpose of

effecting Indenture of Transfer, the annual returns has not been filed after

2004. As the conditions set out in Clause 38 has not been fulfilled, the

respondent has rightly rejected the claim of the petitioner for remission.

Accordingly, this Court is of the view that the petitioner, who has failed to

fulfil the conditions in the Government Order, is not entitled to the remission

as per the Government Order and the Writ Petition in W.P.No.5864 of 2015

is liable to be dismissed.

20. In respect of the Writ Petition in W.P.No.20043 of 2015 has to be

dismissed as infructuous since the document in question has already been

registered and the payment is also paid by the petitioner.

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21. As far as the other Writ Petition in W.P.No.30830 of 2015

challenging the impugned Order dated 12.09.205 claiming deficit stamp duty

of Rs.25,70,512/- and registration fee of Rs.3,21,315/-, it is relevant to note

that when the Indenture of Transfer was registered in the year 2005, the

document was never impounded on the ground of under valuation. Infact, the

document was registered on the basis of the Government Order.

Subsequently, the demand was issued on the basis guideline value of the

property. The said demand has been made within one year after the

registration of the document under section 33[a] of the Stamp Act. Having

raised the demand on the market value and without enquiry either under

section 47A [2] or [3] of the Indian Stamp Act, the value cannot be

determined unilaterally by the respondent. Further no suo motu powers also

exercised by the Chief Controlling Authority as per sub clause 6 of Section

47A of the Indian Stamp Act. Be that as it may.

22. To initiate suo motu power, or for either under subclause 2 or 3 of

47A of the Stamp Act has not been passed by the Collector. Therefore,

unilaterally, the respondent cannot fix the value. The impugned demand has

been issued for defecit stamp duty of a sum of Rs.25,70,512/- and

https://www.mhc.tn.gov.in/judis WP.Nos.5864, 20043 & 30830 of 2015

registration fee of Rs.3,21,315/- mainly on the ground that same has been

issued on the basis of the guideline value. It is relevant to note that such

impugned communication has been sent only on 12.09.2015, after 10 years

of registration. It is further relevant to note that Section 33[a] of the Indian

Stamp Act reads as follows :

“33-A. Recovery of deficit stamp duty – [1] Notwithstanding anything contained in section 33 of in any other provisions of this Act, if , after the registration of any instrument under the Registration Act, 1908 [Central Act XVI of 1908], it is found that the proper stamp duty payable under this Act in respect of such instrument has not been paid or has been insufficiently paid, such duty or the deficit, as the case may be, may, on a certificate from the Registrar of the district under the Registration Act, 1908 [Central Act XVI of 1908] be recovered from the person liable to pay the duty, as an arrear of land revenue:

Provided that no such certificate shall be granted unless due to inquiry is made and such person is given an opportunity of being heard :

Provided further that no such inquiry shall be commenced after the expiry of three years from the date of registration of the instrument.”

https://www.mhc.tn.gov.in/judis WP.Nos.5864, 20043 & 30830 of 2015

23. It is relevant to note that for issuing any certificate, proper enquiry

should be made and an opportunity should be given. The proviso also makes

it clear that no enquiry has to be commenced after three years from the date

of registration of the instrument. Therefore, the demand notice issued on the

basis of the guideline value beyond the period of 10 years is contrary to the

proviso to section 33[A] of the Tamil Nadu Stamp Manual that too without

making any enquiry. In such view of the matter, the impugned demand dated

12.09.2015 cannot be sustained in the eye of law and the Writ Petition is

liable to be dismissed.