Madras High Court
Trinity Colour India (P) Limited vs The Inspector General Of ... on 5 July, 2023
W.P.No.8247 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.8247 of 2023
and
W.M.P.No.8458 of 2023
1. Trinity Colour India (P) Limited,
Rep. by its Director,
Mr.A.Yogesh Kumar,
S/o. C.Ayyakkannu,
No. 24/1, Annamalai Layout,
Off- Mettur Road,
Erode-638 011. ... Petitioner
Vs.
1. The Inspector General of Registrations,
Mylapore, Chennai.
2. The Sub Registrar,
Annur, Coimbatore district. ... Respondents
Prayer :- Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorarified Mandamus, directing the
respondents 1 and 2 to refund the entire 2% additional stamp duty
collected from the petitioner company for registering the Sale Certificate
dated 22.11.2021 presented by the petitioner company and registered as
Doc. No. 5356/ 2022, dated 22.04.2022, before the 2nd respondent.
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1/11
W.P.No.8247 of 2023
For Petitioner : Mr.E.J.Ayyappan
For Respondents :
(for R1 to R2) : Mr.R.Ramanlal, A.A.G.
ORDER
The writ of Mandamus has been instituted to direct the respondents
one and two to refund the entire 2% additional stamp duty collected from
the petitioner company for registering the sale certificate dated 22.11.2021,
presented by the petitioner company and registered a Document
No.5356/2022 dated 22.4.2022.
2.The petitioner company is engaged in manufacture and export of
lingerie and nightwear having its registered officer at Erode District. The
petitioner company is the auction purchaser, purchased the property
through an auction sale conducted by the authorised Officer of Bank of
Baroda. The petitioner company presented the sale certificate for
registration on 22.04.2022 before the second respondent Sub Registrar and
the document was registered as Document No.5356/2022 dated
22.04.2022.
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W.P.No.8247 of 2023
3.On presentation of the sale certificate for registration, the
petitioner company was directed to pay a stamp duty of 7 % (5% Stamp
Duty + 2% Surcharge) on the value of the sale certificate. Accordingly, the
petitioner company paid the charges and the document was registered and
released.
4.Subsequently, the petitioner company filed the present writ
petition on the ground that for registration of sale certificate, 2% surcharge
could not be recovered and therefore, submitted an application for refund
of the said surcharge amount.
5.The learned counsel for the petitioner mainly relied on the
judgment of this Court in the case of the Bell Tower Enterprises LLP Vs.
The State of Tamil Nadu dated 12.09.2022 passed in W.P.No. 23237 of
2018. The following paragraphs are relied on:
9.Countering the said submissions of the learned
Special Government Pleader based on the judgement of the
two Divisional Benches and the Full Bench of this Court,
Mr.Sharath Chandran, learned counsel would submit that
the judgments of the Division Bench and the Full Bench in
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W.P.No.8247 of 2023
The Inspector General of Registration v.Kanagalakshmi
Ganaguru's case over ruled by the judgement of the Larger
Bench of the Hon'ble Supreme Court in Esjaypee Impex Pvt
Ltd v. Assistant General Manager and Authorised
Officer, Canara Bank, reported in 2021 (11) SCC 537, the
learned counsel would place considerable reliance on the
following passage in Esjaypee Impex Pvt Ltd, in support
of his contention:
.. “16. We are of the view that the mandate of law in
terms of Section 17(2) (xii) read with Section 89)4) of
the Registration Act, 1908 only required the
authorised officer of the Banch under the SARFAESI
Act to hand over the duly validated sale certificate to
the auction-purchaser with a copy forwarded to the
registering authorities to be filed in Book I as per
Section 89 of the Registration Act.”
...
25.From the above discussion, it could be seen that
in view of the pronouncement of the Hon'ble Spreme Court
in Esjaypee Impex Pvt Ltd v. Assistant General Manager
and Authorised Officer, Canara Bank, the law as it stands
today is that an Authorised Officer, who conducts a sale
under the provisions of the SARFAESI Act, would be
Revenue Officer and the certificate issued by hi in evidence
of such sale, would be a document which is not
compulsorily registrable under Section 17(2)(xii) of the
Registration Act. It would be sufficient, if the document is
lodged with the Registrar under Section 89(4) to be filed by
him in the Book-I maintained by him. The decisions of this
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W.P.No.8247 of 2023
Court in the Inspector General of Registration v.
K.K.Thirumurugan, (Division Bench,) The Inpector
General of Registration v. Kanagalakshmi Ganaguru,
(Division Bench), Dr.R.Thiagarajan v. Inspector General
of Registration, (Full Bench) and The Inspector General of
Registration v. Prakash Chand Jain, (Division Bench)
are no longer good law, in view of the pronouncement of
the Hon'ble Supreme Court in Esjaypee Impex Pvt Ltd v.
Assistant General Manager and Authorised Officer,
Canara Bank.
26. The next question that would arise is to the
amount of stamp duty and registration charges payable, if
such certificate is presented for registration. Article 18 of
the Stamp Act, provides for Stamp Duty payable on a
certificate of sale granted by a Civil or Revenue Court or
Collector or other Revenue Officer. Clause (c) of Article 18
makes the duty payable for a conveyance would apply to a
sale certificate also. Under Article 23 of the Stamp Act, the
Stamp Duty payble on a sale is 5% as per G.O.Ms.No.46-
CT and All Department dated 27.03.2012. As already
pointed out since the document would not be a conveyance
there is no question of payment of any surcharge either
under Section 116-A of the Tamil Nadu District
Municipality Act 1920 or under Tamil Nadu Duty on
Transfer of Property (In Municipal Areas) Act (32 of 2009)
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W.P.No.8247 of 2023
27. Insofar as the registration charges are
concerned, the State Government has fixed the registration
charges at 1% under Section 78 of the Registration Act and
the same has been published in the Tamil Nadu Government
Gazette, as required under Section 79 of the Registration
Act. By G.O.Ms.No.49 dated 08.06.2017, the following
proviso was added to Article 1 of the table of the fees:
“Provided further that notwithstanding
anything contained in his Table, in case of deeds of
conveyance, exchange, gift and settlement among
non-family members, the Registration Fee shall be
levied at the rate of Rupees four per Rupees hundred
or part thereof on the value or amount on which
stamp duty under the Indian Stamp Act, 1899,
(Central Act II of 1899) is payable.”
6.Relying on the above findings in the judgment, the learned counsel
for the petitioner reiterated that the said order was based on the judgement
of the Hon'ble Supreme Court of India in the case of Esjaypee Impex Pvt
Ltd v. Assistant General Manager and Authorised Officer, Canara
Bank reported in 2021 (11) SCC 537.
7.The learned Additional Advocate General, appearing on behalf of
the state, strenuously objected the same on the ground that there is no
findings in the case of Esjaypee Impex Pvt Ltd regarding waiver of 2 %
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W.P.No.8247 of 2023
surcharge. In the absence of any specific exemption, the judgment of the
Hon'ble Supreme Court has been referred for seeking exemption and
therefore, the writ petition is devoid of merits.
8.The learned Additional Advocate General raised a concern that the
judgment of the Hon'ble Supreme Court has been wrongly understood by
the petitioners as if the Supreme Court granted exemption from payment of
2% of surcharge as contemplated under the provisions of the Act.
However, the Hon'ble Superme Court has not granted any such exemption
and more so, in the present case, the petitioner had opted for registering the
said certificate under Section 17 of the Registration Act. Thus, he is not
exempted from payment of registration charges and surcharge and
therefore, the writ petitioner is not entitled to claim any refund.
9.Even in the order relied on by the petitioners, the procedures
contemplated under Section 89(4) of the Registration Act has been
considered. Section 89 of the Registration Act enumerates “Copies of
certain orders, certificates and instruments to be sent to registering
officers and filed”. Sub Section (4) of Section 89 stipulates that "Every
Revenue Officer granting a certificate of sale to the purchaser of
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W.P.No.8247 of 2023
immovable property sold by public auction shall send a copy of the
certificate to the registering officer within the local limits of whose
jurisdiction the whole or any part of the immovable property comprised in
the certificate is situate, and such officer shall file the copy in his Book
No. 1 or get it scanned”.
10.In unequivocal terms, Section 89(4) explicitly provides that the
sale certificate shall be sent by the Revenue Officer to the Registering
Officer within the local limits of whose jurisdiction the whole or part of the
property comprised in the certificate is situate. Therefore, on completion of
auction sale, the Revenue Officer concerned, granting a certificate of sale
to the purchaser of immovable property, shall send a copy of the certificate
to the Registering Officer. If such a procedure have been adopted in
compliance with Section 89(4) of the Registration Act, then alone the
surcharge is exempted and if any person has opted to present the document
for registration under Section 17 of the Registration Act, then the
document presented attracts registration charges and surcharge as
contemplated .
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W.P.No.8247 of 2023
11.Citizens are provided with options to deal with the documents. If
any person has decided to register a document in a particular manner and
chosen the same, he cannot turn around and claim exemption by citing
other provisions available under the statute. A person cannot approbate and
reprobate.
12.In the present case, the petitioner has chosen to present a
document for registration under Section 17 of the Registration Act.
Accordingly, it was registered by collecting the registration charges and
surcharge. After registering the document and after release of the same, the
petitioner cannot now turn around and claim that he is not liable to pay
surcharge in view of the Section 89(4), wherein the procedures
contemplated are distinct and different.
13Admittedly in the present case, the procedures contemplated
under Section 89(4) of the Registration Act has not been followed by the
Revenue Officer who granted sale certificate. That being the factum, the
petitioner is not entitled for the relief as such sought for in the present writ
petition.
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W.P.No.8247 of 2023
14. Accordingly, the writ petition stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
(sha) 05.07.2023
Index : Yes
Speaking Order
Neutral Citation : Yes
To
1. The Inspector General of Registrations,
Mylapore, Chennai.
2. The Sub Registrar,
Annur, Coimbatore district.
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W.P.No.8247 of 2023
S.M.SUBRAMANIAM. J.,
(sha)
W.P.No.8247 of 2023
05.07.2023
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