The nature of the instrument, whether it was an agreement for sale or a development agreement, did not affect the applicability of the proviso to section 48(1) of the Stamp Act. The court emphasized that the stamp duty paid on the instrument was as per Article 25 of Schedule I to the Stamp Act, and therefore, the subject instrument fell within the proviso to section 48(1).

JUDGEMENT :

1. By this petition filed under Article 227 of the Constitution of India Petitioner seeks to challenge orders dated 12th December, 2019 (Ex-E) and order dated 18th June, 2020 (Ex-H) passed by the Respondent No.2-Chief Controlling Revenue Authority (CCRA) rejecting/dismissing Petitioner’s application and appeal for refund of stamp duty under sections 47 and 48 of the Maharashtra Stamp Act, 1958 (the “Stamp Act”).

2. The brief facts leading upto the petition are as under :-

On 29th September, 2014 an instrument entitled “agreement for sale” was entered into in respect of the property being non-agricultural land, survey No.44/2 ad-measuring 21646 sq. meters situate in the limits of Nashik Municipal Corporation at mouje Anandvalli (the “said property”) between the Petitioner and Mohammed Bhauddin Khatib and 15 others (the “Khatib family”) pursuant to which the Khatib family would sell and Petitioner would purchase the said property for a total consideration of Rs.51,51,50,000/- out of which Petitioner had paid an amount of Rs.1,51,50,000/- and upon the payment of the entire consideration the Khatib family would execute a Sale Deed. The said instrument was stamped and duly registered by payment of e-stamp of Rs.3,09,09,000/- and registration fee of Rs.30,000/- as “Agreement ” registered in the office of the Joint Sub-Registrar, Nashik on 29th September, 2014 itself. The Khatib family also executed an irrevocable power of attorney on 30th September, 2014 in favour of Petitioner and the same was duly stamped and registered on 3rd November, 2014.

3. Petitioner states that thereafter applications were made for various approvals and sanction of building permission and commencement certificate was granted on 11th April, 2019.

4. It is submitted by the Petitioner that there was a reversal/down trend in the real estate market and the overall financial condition of the economy of the country was also not encouraging; they were also not able to obtain other approvals in time and were unable to honour their commitment of completing the transaction and making payment of balance consideration of Rs.50 crores to members of the Khatib family by 30th April, 2017. On the ground that it was not possible for them to arrange such large sums of money, it was mutually decided between the members of the Khatib family and Petitioner to cancel the said instrument entitled “agreement for sale”.

5. Pursuant to negotiations between the parties a Cancellation Deed in respect of the said agreement was entered into on 24th June, 2019, which was registered with the Sub-Registrar of the Assurances on the same date.

6. Thereafter, on 25th June, 2019 Petitioner filed an application for refund of stamp duty with the Joint District Registrar, Class-I and Collector of Stamps, Nashik viz. Respondent No.3 under section 47(c)(5) read with section 48(1) of the Stamp Act. Petitioner relied upon the proviso to section 48 which permits filing of application within 6 months from the date of registration of the cancellation deed in the event, the agreement for sale is cancelled by a registered cancellation deed within 5 years from the date of the agreement for sale before taking possession of the property which is subject matter of the agreement. Petitioner submits that the application was made well within time.

7. The Respondent No.3 forwarded the file to the office of the Deputy Inspector General of Registration and Deputy Controller of Stamps, (Nashik Division), Nashik as per the provisions of section 52A of the Stamp Act as the amount of refund involved was more than Rs.5 lakhs. While forwarding the file, the Respondent No.3 remarked that the document/instrument entitled agreement for sale and irrevocable power of attorney, as per their contents amounted to development agreement and recommended in his report that Petitioner was not eligible for grant of refund. The