State Of Rajasthan vs Indus Tower Limited ...
2023 Latest Caselaw 5158 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10439/2019

State Of Rajasthan, Through The Sub Registrar, Sirohi.

----Petitioner Versus

1. Indus Tower Ltd. Limited, Through Its Manager Shri Vikram Singh R/o Hotel The Grand, Nelson Mandela Road, Vasant Kunj, Phase-2, New Delhi.

2. Samadar Singh S/o Babu Singh, R/o Village Dhanta, Teh.

Sirohi.

3. Rajasthan Tax Board, Ajmer.

----Respondents Connected With S.B. Civil Writ Petition No. 10649/2019 State Of Rajasthan, Through The Sub-Registrar, Sirohi.

----Petitioner Versus

1. Indus Tower Limited, Through Its Manager Shri Vikram Singh, R/o Hotel The Grand, Nelson Mandela Road, Vasant Kunj Phase-2, New Delhi.

2. Gajendra Singh S/o Kishore Singh Rajput, Village Lonol, Teh. Reodar, Dist. Sirohi.

3. Rajasthan Tax Board, Ajmer.

----Respondents S.B. Civil Writ Petition No. 12338/2019 State Of Rajasthan, Through The Sub Registrar, Sirohi.

----Petitioner Versus

1. Indus Tower Ltd. Limited, Through Its Manager Shri Vikram Singh, R/o Hotel The Grand, Nelson Mandela Road, Vasant Kunj Phase-2, New Delhi.

2. Shri Ukaram S/o Shri Poona Ram, R/o Nimbaj, Tehsil Reodar, District Sirohi.

3. Rajasthan Tax Board, Ajmer.

----Respondents

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For Petitioner(s) : Mr. Sandeep Shah, Sr. Advocate-

cum-AAG assisted by Mr. Nishant Bapna For Respondent(s) : Mr. Pritam Solanki

HON'BLE DR. JUSTICE NUPUR BHATI

Order

24/05/2023

1. Learned Senior Counsel-cum-AAG Mr. Sandeep Shah

appearing for the State submits that the controversy involved in

these matters are squarely covered by the judgment dated

07.11.2022 rendered by the Coordinate Bench of this Court in

D.B. Civil Special Appeal (Writ) No.193/2019 (The State of

Rajasthan & Anr. Vs. Indus Tower Ltd. & Anr.) and other

connected matters.

2. The relevant portion of the said judgment, as relied upon by

the learned Senior counsel, reads as follows :-

30. The argument of learned counsel for the respondent that even if security charges/security deposits are stipulated under the terms of the lease, notification dated 05.03.2003 would be applicable because the rent is fixed and the premium is not paid or delivered, would amount to amend notification dated 05.03.2003 by adding a further clause as- "whether or not security charges/security deposits are advanced".

Such interpretation is not only against the strict construction of the notification, but it also violates the principle of literal construction. Addition or substitution of words or phrases in the notification issued in exercise of powers under Section 9 of the Act of 1899, which is a taxing statute, is not warranted at all in the present case. Therefore, we have to conclude that notification dated 05.03.2003 is applicable only to class of leases as specified in Clause (a) of Article 33 of the Schedule appended to the Act of 1998 and

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once the terms of lease stipulate security deposit, the lease becomes classifiable under clause (c) of Article 33 of the Schedule appended to the Act of 1998 and such leases are taken out of the purview and applicability of notification dated 05.03.2003.

In any case, even if it is to be taken as a case of ambiguity, notification dated 05.03.2003 being in the nature of concession clause, the same principle of interpretation as is applicable in the case of exemption clause, as laid down by the Constitution Bench of the Hon'ble Supreme Court in the case of Commissioner of Customs (Import), Mumbai Vs. Dilip Kumar and Company & Others (supra) has to be applied that in such a case, the benefit of doubt must be resolved in favour of the revenue and not in favour of the assessee. Thus, viewed from any angle, the respondent- Indus Tower Limited was not entitled to benefit of notification dated 05.03.2003 and claim of reduced rate of stamp duty in respect of lease deeds executed in its favour, is not tenable in law.

31. Consequently, the order of the Tax Board passed in favour of the respondent-Indus Tower Limited is illegal and unsustainable in law and it is declared that in the matter of levy of stamp duty on the class of leases executed in favour of the respondent-Indus Tower Limited, notification dated 05.03.2003 shall not apply.

Though this aspect was not raised/argued before the learned Single Judge, it being a pure question of law relating to applicability of rates of stamp duty, the issue has been decided by us in these appeals in favour of the revenue and against the respondent-Indus Tower Limited after affording full opportunity of hearing to the respondents.

32. Consequently, appeals filed by the State are allowed and the order passed by the learned Single Judge and the order passed by the Tax Board in all the cases are set set aside and it is declared that notification dated 05.03.2003 is not applicable in respect of the class of leases executed in favour of respondent-Indus Tower Limited and therefore, the respondent-Indus Tower Limited would be liable to pay stamp duty as per the provisions of the law, which were in force on

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the date of execution of lease deeds without claiming benefit of notification dated 05.03.2003. Appropriate proceedings shall be drawn for recovery of short payment of stamp duty by the competent authority under the law.

33. No order as to costs.

34. Office is directed to place a copy of this judgment on the record of each connected appeal.

3. Learned counsel for the respondent is not in a position to

dispute the same.

4. In view of the submissions so made by learned counsel for

the parties, the writ petitions filed by the petitioners are allowed in

the same terms as given in the case of The State of Rajasthan

& Anr. Vs. Indus Tower Ltd. & Anr (supra) and the order

dated 22.05.2017 (Annex.-6) passed by the learned Rajasthan Tax

Board, Ajmer and order dated 30.06.2010 (Annex.5) passed by

the Collector (Stamps), Pali are quashed and set aside. The

matters are remanded back to the District Collector (Stamps) Pali

for fresh adjudication of the issue involved while keeping into

consideration judgment of The State of Rajasthan & Anr. Vs.

Indus Tower Ltd. & Anr (supra).

5. With the aforesaid directions, the writ petitions are disposed

of. Stay petitions as well as all other pending applications also

stand disposed of.

(DR. NUPUR BHATI),J surabhii/91-93-

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