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2018 Supreme(Kar) 357
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R. DEVDAS, J.
M/S. Gopalan Enterprises A. Regd. Firm of Partners - Petitioners
Versus
The Deputy Commissioner of Stamps & Ors. - Respondents
Writ Petition No.17510 of 2010 (GM-ST/RN)
Decided On : 26-09-2018
For the Petitioners:Sri S.V. Srinivas, Advocate For M/S Chalapathy & Srinivas, Advocates.
For the Respondents: Sri T.S. Mahantesh, A.G.A.
Headnote:
Stamp Act – Section 47 – Karnataka Stamp Act, 1957 – Section 16 – Deed of Surrender – Lease Deed – Certiorari – Petitioner entered into a transaction of lease with respect to a portion of commercial complex constructed on site Nos.23 and 24 situated at III Phase, J.P. Nagar, Bannerghatta Road, Bengaluru. – A lease deed was executed and registered on same date in office of Sub-Registrar, J.P. Nagar, Bengaluru. – Subsequently, a Deed of Surrender was executed between same parties and said deed was registered in same Sub-Registrar’s Office. – In Deed of Surrender, parties confirmed that right and obligations created in lease deed was thereby surrendered and parties will not claim any right under lease deed. – Another lease deed was entered into between petitioner herein and lessors therein. – Petitioner is before this Court seeking a writ in nature of certiorari or any other appropriate writ or direction quashing endorsements, which are at Annexures-E & F respectively. – Petitioner also seeks a direction to respondent to refund a sum of Rs.1,13,48,805/- being stamp duty paid under first lease deed – Held, Section 16 of Act provides for ‘denoting of stamp duty’. – A provision is made under Act, where duty with which an instrument is chargeable or its exemption from duty, depends in any manner upon duty actually paid in respect of another instrument, payment of such last mentioned duty shall, if application is made in writing to Deputy Commissioner for that purpose, and on production of both instruments, be denoted upon such first mentioned instrument, by endorsement under hand of Deputy Commissioner or in such other manner, if any, as State Government may by rules prescribe. – Provision enunciates rule against double jeopardy. – But petitioner seems to have shied away from making an application under Section 16 of Act because nature of transaction, properties involved in both transactions, extent and parties thereto are different from one another. – It is more than obvious that two instruments refer to two different and separate transactions – There is no provision under Act for claiming refund of stamp duty on ground that earlier transaction was cancelled or that rights accrued under instrument is surrendered by such cancellation. – Section 16 of Act provides for ‘denoting duty’ or adjustment of duty paid in certain cases such as Agreement for sale under Article 5(e) or instrument of sale or transfer as case may be, or duty payable on such Power of Attorney under Article 41(e), executed between same parties and in respect of same property. – Case on hand does not fall under said category. – It was held that instrument was not executed and retention of stamp duty by State would amount to levy or collection without authority of law. – That is not scenario obtained in this case. – It is clear that claim made by petitioner seeking refund of stamp duty is not permissible under Stamp Act and therefore endorsement issued by respondent-authorities stating that there is no provision under Stamp Act for refund of stamp duty, in facts and circumstances of this case, is perfectly justified. – No fault can be found in impugned orders passed by respondent-authorities – Petition Dismissed
R. DEVDAS, J.
1. The petitioner entered into a transaction of lease with respect to a portion of the commercial complex constructed on site Nos.23 and 24 situated at III Phase, J.P. Nagar, Bannerghatta Road, Bengaluru. A lease deed dated 24.09.2008 was executed and registered on the same date i.e., 24.09.2008, in the office of the Sub-Registrar, J.P. Nagar, Bengaluru. Subsequently, a Deed of Surrender was executed between the same parties on 26.09.2009 and the said deed was registered on 29.09.2009 in the same Sub-Registrar’s Office. In the Deed of Surrender, the parties confirmed that the right and obligations created in the lease deed dated 24.09.2008 was thereby surrendered and the parties will not claim any right under the lease deed. Thereafter another lease deed dated 29.09.2009 was entered into between the petitioner herein and the lessors therein.
2. It is pertinent to note that in the second lease deed there are three lessors, while in the first lease deed Sri A.Krishnappa was the sole lessor. On 22.10.2009, the petitioner herein addressed a letter to the Secretary to Revenue Department, Government of Karnataka seeking refund of stamp duty of Rs.1,13,48,805/- that was paid under the first lease deed dated 24.09.2008. The Secretary of the Revenue Department seems to have forwarded the request of the petitioner to the Inspector General of Registration and Commissioner of Stamps. The Commissioner vide letter dated 02.12.2009, informed the Secretary of the Revenue Department that there is no provision under the Karnataka Stamp Act, 1957, (for short ‘Act’) for refund of stamp duty, applicable to the facts of the case. The letter dated 02.12.2009 was also communicated to the petitioner herein. It is seen from Annexure-F, which is an endorsement dated 20.04.2010, that the District Registrar has also issued an endorsement to the petitioner herein reiterating the position that there is no provision under the Stamp Act for refund of stamp duty on a document that was already executed and registered. Aggrieved by the same, the petitioner is before this Court seeking a writ in the nature of certiorari or any other appropriate writ or direction quashing the endorsements dated 02.12.2009 and 20.04.2010, which are at Annexures-E & F respectively. The petitioner also seeks a direction to the respondent to refund a sum of Rs.1,13,48,805/- being the stamp duty paid under the first lease deed dated 24.09.2008.
3. Sri S.V. Srinivas, learned counsel appearing for the petitioner submits that Section 47 of the Stamp Act provides for refund of stamp duty and the said provision is applicable to the facts and circumstances of the instant case. The learned counsel further submits that Section 47(c)(6) of the Act is the provision under which the petitioner is empowered to claim refund of stamp duty and therefore the respondent-authorities should have considered the claim made by the petitioner and consequently refunded the stamp duty paid by the petitioner on the lease dated 24.09.2008.
4. Section 47 of the Act reads as follows:
“47. Allowances for spoiled stamps:-Subject to such rules as may be made by the State Government as to evidence to be required, or the enquiry to be made, the [Deputy Commissioner] may, on application made within the period prescribed in Section 48, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in the cases hereinafter mentioned, namely:-
(a) the stamps on any paper inadvertently and undesignedly spoiled, obliterated or by error in writing or any other means rendered unfit for the purpose intended before any instrument written thereon is executed by any person;
(b) the stamp on any document which is written out wholly or in part, but which is not signed or executed by any party thereto;
(c) the stamp used for an instrument executed by any party thereto which –
(1) has been afterwards found to be absolutely void in law from the beginning;
(2) has been afterwards found unfit, by reason of
