Orissa High Court
WP(C)/8942/2021 on 31 March, 2021
W.P.(C) No.8942 of 2021
05. 31.03.2021 Heard Sri S.K. Dash, learned counsel for the
petitioner and Sri T.K. Biswal, learned counsel appearing
for the opposite party nos.1 and 2 and Sri Sukumar
Ghosh, learned Additional Standing Counsel for the
State-Opposite Party No.3.
The writ petition involves the following
prayer:
"It is therefore prayed that the Hon'ble
Court may graciously be pleased to issue RULE
NISI calling upon the opposite parties, to show
cause as to why the opposite parties No.1 and 2
will not be directed to execute the sale deed in
respect of the lease hold property of the
petitioner and also to get it registered, on
payment of stamp duty and registration fee
assessed upon the consideration amount
received by them and the opposite party No.3 to
act upon it accordingly and on their failure to
show cause or upon showing insufficient cause,
may further be pleased to make the said Rule
absolute and direct the opposite parties No.1
and 2 to execute the lease-cum-sale deed and
get it registered on payment of stamp duty and
registration fee assessed upon the actual
consideration amount received by them and also
to direct the opposite party No.3 to act upon or
effect the registration of the deed accordingly,
within a stipulated time and may pass such
other/further order (s) as it may deem fit and
proper, in the facts and circumstances of the
case.
And for this act of kindness, the petitioner
as in duty bound shall ever pray."
Looking to the factual background involved
herein and the dispute raised by the Registering
Authority, this Court finds in similar situation a Single
Bench of this Court disposing of W.P.(C) No.3404 of
uks
2021 has directed as follows :
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"Therefore, this Court disposes of the writ
petition directing the opposite parties to execute
the lease-cum-sale deed as well as the sale deed
taking into consideration the valuation as
reflected in the draft lease-cum-sale deed by
calculating the stamp duty as per such
valuation, instead of taking into consideration
the Bench Mark valuation, in terms of the
judgment in Santosh Kumar Nanda (supra)"
In Santosh Kumar Nanda Vrs. The
Odisha State Housing Board and Ors. (in W.A.
No.241 of 2019, disposed of on 21.10.2019), a Division
Bench of this Court while disposing of the Writ Appeal
directed in paragraph-14 as under:
"14. In view of the discussions made
hereinabove and the settled position of law, we
set aside the impugned order passed by the
learned Single Judge and direct the respondents
to execute the Sale Deed as per the valuation
reflected in the Draft Lease-cum-Sale Deed, as
expeditiously as possible, on production of
certified copy of this Judgment. The Writ Appeal
is accordingly allowed."
Further, similar view has also been taken by
a Coordinate Bench of this Court in W.P.(C) No.237 of
2021 on 19.01.2021.
Considering the rival contentions and taking
into consideration the submission of Sri Dash that the
provision at Section 43CA of the Income Tax Act, 1961,
is also applicable to the case at hand. The above
provision reads as follows :-
"43CA. Special provision for full value of
consideration for transfer of assets other than
capital assets in certain cases - (1)Where the
consideration received or accruing as a result of
the transfer by an assessee of an asset (other
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than a capital asset), being land or building or
both, is less than the value adopted or assessed
or assessable by any authority of a State
Government for the purpose of payment of
stamp duty in respect of such transfer, the value
so adopted or assessed or assessable shall, for
the purpose of computing profits and gains from
transfer of such asset, be deemed to be the full
value of the consideration received or accruing
as a result of such transfer.
(2) The provisions of sub-section (2) and sub-
section (3) of section 50C shall, so far as may
be, apply in relation to determination of the
value adopted or assessed or assessable under
sub-section (1).
(3) Where the date of agreement fixing the
value of consideration for transfer of the asset
and the date of registration of such transfer of
asset are not the same, the value referred to in
sub-section (1) may be taken as the value
assessable by any authority of a State
Government for the purpose of payment of
stamp duty in respect of such transfer on the
date of the agreement.
(4) The provisions of sub-section (3) shall
apply only in a case where the amount of
consideration or a part hereof has been received
by any mode other than cash on or before the
date of agreement for transfer of the asset."
It is keeping all the above in view, this Court finds
the stamp duty involving the registration of instrument
based on lease-cum-sale deed entered into the parties
at a particular rate and particular time will be the value
for the registration purpose. It is in the circumstance,
this Court in disposal of the Writ Petition while
reiterating the settled position of law through the above
judgment directs the opposite party nos.1 and 2 in the
event the instrument is placed for registration by this
petitioner, the Registering Authority shall register the
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same on the face value of the lease-cum-sale deed
involved herein by accepting the stamp duty on the
value as indicated therein by completing the entire
exercise within a period of seven days.
For number of cases coming to this Court on
this aspect, the IGR of the State is directed to issue
necessary communication to all the Registrars and Sub-
Registrars of the State to follow the above direction in
future registration of this nature at least to avoid flowing
of such cases to this Court.
Free copy of this order be supplied to Mr. S.
Ghosh, learned Additional Standing Counsel for the
State for communication to the IGR of the State.
..................................
Biswanath Rath, J
