JUDGMENT - KHANDEPARKAR R.M.S., J.: - Heard the learned Advocates for the parties. Perused the records. Rule. By consent, the Rule is made returnable forthwith.

2.The petitioner challenges the order dated 4th December, 2003 passed by the Deputy Inspector-General, Registration and Stamps, Mumbai, the respondent No. 2 herein as well as the order dated 28th May, 2004 passed by the Appellate Authority, the respondent No. 3 herein, rejecting the claim for refund of stamp duty, which was preferred by the petitioner in terms of section 48(1) read with section 47(c)(5) of the Bombay Stamp Act, 1958 (hereinafter called as "the said Act"), being contrary to the provisions of law and illegal.

3.Few facts relevant for the decision are that the petitioner company is engaged in the business of imports and exports of various types of chemicals and being desirous of purchasing residential flat from the point of view of having accommodation for company's associates and business clients visiting India from abroad, entered into a transaction recorded in an document dated 27th March, 2003, with M/s. Mansingka Industries Ltd. in relation to a flat situated at a building known as Rambha at Nepean Sea Road, Mumbai. On execution of the said document dated 27th March, 2003, petitioners paid a sum of Rs. 4,35,00,000/- to the said Mansingka Industries as also the stamp duty of Rs. 34,38,750/- thereon. In terms of the said document, the transferror company had agreed to deliver the physical possession of the flat to the petitioner company after a period of one month from the date of execution of that document. However, on account of refusal to move out on the part of the actual occupant of the said flat, the transferror company could not deliver the possession of the said flat to the petitioner company and consequently the deal failed and, therefore, the parties-the transferror company and petitioner company, executed yet another document on 23rd June, 2003 specifically recording that the document executed on 23rd March, 2003 could not be given effect to as the transferror company did not and could not deliver the possession of the flat on account of obstruction and/or resistance on the part of the person in physical occupation of the said flat. The document dated 27th March, 2003 as well as the latter document dated 23rd June, 2003 were duly registered before registering authorities of respondent No. 1. Consequent to the document of cancellation of the deal in respect of the said flat, the same having failed, petitioner company applied for refund of stamp duty which was paid on the date of execution of document dated 27th March, 2003 and same was filed on 19th July, 2003. Respondent No. 2 who is Competent Authority to deal with the matters relating to refund of stamp duty in terms of provisions of the said Act by his order dated 4th December, 2003 informed the petitioner that consequent to the investigation it was revealed that the amount in question was exceeded Rs. 1 lakh and that the request for refund was outside the scope of the said Act and therefore, the request could not be entertained and accordingly rejected the claim for refund of the stamp duty.

4.Aggrieved by the said order, petitioner' filed an appeal in terms of provisions of the said Act before respondent No. 3 which came to be rejected by an order dated 28th May, 2004 on the ground that the request was out of the purview of the provisions of the said Act.

5.While assailing the impugned order, learned Advocate appearing for the petitioner, drawing my attention to the provisions of law comprised under sections 47 and 48 of the said Act as well as Rule 21 of Bombay Stamp Rules, 1939 (hereinafter called as “the said Rules”), submitted that the transaction for the purchase of the flat having failed, the transaction which was sought to be drawn in terms of document dated 27th March, 2003 also failed and, therefore, the petitioner is entitled for refund of the stamp duty paid on the instrument in

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