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2019 Supreme(Bom) 909
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. Kulkarni, J.
Narendra Janardan Pathak & Ors. – Appellant
Versus
Collector of Stamps, Thane City Thane & Ors. – Respondent
Writ Petition No. 13821 of 2016
Decided On : 17-07-2019
Gauri Godse, Adv., Saurabh Butala, Adv., S.H. Kankal, Adv.
Headnote:
Constitution of India,1950 – Article 226 and 227 - Maharashtra Stamp Act,1958 – Section 53(1A) – Stamp Act – Article 25(b)(I),5(g-a) and 5(h) - Companies Act,1956 – Section 394 - Stamp duty - Penalty - This is a petition under Section 226 and 227 of Constitution, whereby the petitioners have challenged an order dated 24 February 2016 passed by the Chief Controlling Revenue Authority, on an appeal filed by petitioners under Section 53(1A) of Maharashtra Stamp Act,1958 - Petitioners had filed the said appeal being aggrieved by an order passed by the Collector of Stamp, adjudicating stamp duty on document in question titled as preliminary agreement executed between respondents-vendors and petitioners-purchasers - Collector of Stamps in adjudicating stamp duty on this document by an order directed that document would fall in the category of conveyance falling under Article 25(b) of Schedule-I to Stamp Act - Petitioners were directed to deposit a deficit stamp duty and penalty amount - Whether any of clauses as contained in agreement would attract any ingredients of Article 25(b) – Held, contention as urged on behalf of learned Counsel for respondents that clause 6 of agreement is required to be interpreted to mean it would indicate permission to enter upon land and would become relevant, cannot be accepted to being document as falling under Explanation - In fact this argument as urged on behalf of respondents militates against respondents plea that possession of the land was never handed over Clause 6 of agreement from its plain reading, cannot be read to mean that it is in the nature of transfer of possession as contemplated under Explanation - In court opinion, as urged on behalf of petitioners, document is adequately stamped clearly falling under Article 5(h)(B) - Impugned orders passed by Collector of Stamps and of the Appellate Authority in Appeal are quashed and set aside, while holding that document is adequately stamped under Article 5(h) - Petitioners are directed to pay stamp duty as per law on the final sale deed, if so entered between the parties - In the light of deliberation, petition needs to succeed – Petition allowed.
JUDGMENT :
G. S. Kulkarni, J.
Rule, returnable forthwith. Respondents waive service. By consent of the parties heard finally.
2. This is a petition under Section 226 and 227 of the Constitution, whereby the petitioners have challenged an order dated 24 February 2016 passed by the Chief Controlling Revenue Authority, Maharashtra State, Pune, on an appeal filed by the petitioners under Section 53(1A) of the Maharashtra Stamp Act,1958 (for short 'the Stamp Act'). The petitioners had filed the said appeal being aggrieved by an order dated 18 December 2014 passed by the Collector of Stamps, Thane City, adjudicating stamp duty on the document in question titled as preliminary agreement dated 21 February 2011 executed between the respondents-vendors and the petitioners-purchasers.
3. The Collector of Stamps in adjudicating stamp duty on this document by an order dated 18 December 2014 directed that the document would fall in the category of 'conveyance' falling under Article 25(b) of Schedule-I to the Stamp Act. The petitioners were directed to deposit a deficit stamp duty of Rs.30,00,000/- and penalty amount of Rs.25,80,000/-.
4. By the impugned order passed by the Chief Revenue Controlling Authority on the appeal, the Chief Controlling Revenue Authority (for short 'the appellate authority') has confirmed the orders passed by the Collector of Stamps on the following reasoning :-
5. Reasoning:-
5.1 It is the contention of Appellant that in the subject document possession of property is not delivered immediately and is specifically agreed to be delivered at the time of execution of Conveyance Deed. Therefore, Agreement does not fall in category of Agreement covered under Explanation I below Article 25 of Schedule I of the said Act, to fall in the nomenclature of the same as deemed Conveyance.
5.2 Perused subject document, memo of appeal, documents, written say papers filed by Appellant on record.
5.3 Recital portion on page No.2 of the subject document is as follows: The Purchaser agrees and assures to pay the said consideration of Rs.6,00,00,000/- (Rupees Six Crore only) to the Vendors in the following manner.
| (i) | Rs.1,00,00,000/- (Rupees One Crore only) (i.e. Rs.40,00,000/- by cash and Rs.60,00,000/- by cheques) paid at the time of execution of this agreement. |
| (ii) | Rs.1,00,00,000/- (Rupees One Crore only) to be paid within 30 days from the date of issuance of public notice |
| (iii) | Rs.4,00,00,000/- (Rupees Four Crore only) to be paid within eight months from the date of payment of (ii) above i.e. at the time of execution and registration of final deed of conveyance but prior to that the Vendors shall take every effort and assistance to enable. |
From this it is clear that every expenses towards every document including M.O.U. Appellant is under obligation to pay stamp duty and Registration Fee etc.
5.5 In this regard, Explanation I below Article 25 of Schedule I of said Act is as follows:-
Explanation I, For the purpose of this Article where in the case of agreement to sell an immovable property, the possession of any immovable property is transferred or agreed to be transferred to the purchaser before the execution or at the time of execution or after the execution of such agreement then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly;
From this it is observed that present is the case of Appellant squarely covered under this explanation, and therefore, the Agreement is chargeable to stamp duty as being deemed Conveyance. For this reason, case law referred by the Appellant would not apply to this case.
5.6 The contention of Appellant that the possession is agreed to be given at the time of execution of Conveyance Deed is not proved and therefore, is not accepted.
In the premises of the facts and circumstances of the case as mention
