The Collector of Stamps must assess whether the properties under the Development Agreement and General Power of Attorney are identical to determine the applicable stamp duty under the Maharashtra Stamp Act.

JUDGMENT :

(Sandeep V. Marne, J.)

1. Rule- Rule made returnable forthwith. With the consent of the learned counsel appearing for rival parties, petition is taken up for hearing and final disposal.

2. Petitioner has challenged Order dated 5 January 2022 passed by the Collector of Stamps, Borivali demanding stamp duty of Rs.46,00,30,600/- and penalty of Rs.153,65,02,204/- from Petitioner under Article 5(g-a) of the Maharashtra Stamp Act, 1958 (Stamp Act). The demand towards stamp duty and penalty is made on General Power of Attorney (POA)dated 21 February 2007 executed in favour of Petitioner.

3. It appears that Samata Nagar Co-operative Housing Society Union Ltd. (Society) has granted development rights in Petitioner's favour for carrying out development of its buildings. A Development Agreement dated 19 February 2007 was executed by the Society in Petitioner's favour, on which stamp duty of Rs.100/- was initially paid. The said Development Agreement was subsequently adjudicated and stamp duty of Rs. 95,69,169/- under Article 5(g-a) of the Stamp Act, in addition penalty of Rs.82,29,500/- was demanded. There is no dispute to the position that Petitioner paid both the amount of stamp duty as well as penalty (totalamountofRs.1,7,98,69/-), upon payment of which, an endorsement was made on the Development Agreement under Section 41 of the Stamp Act. A separate General Power of Attorney was also executed in Petitioner's favour by the Society on 21 February 2007.

4. It appears that on the basis of some complaint lodged on 'Aple Sarkar portal' alleging non-payment of stamp duty on General Power of Attorney executed in favour of Petitioner, the Collector of Stamps called it for hearing vide letter dated 28 September 2021. Though Petitioner pointed out that full stamp duty has already been paid on the Development Agreement, the Collector of Stamps proceeded to issue a Show Cause Notice dated 10 November 2021 to Petitioner fixing the market value of the property covered by POA at Rs. 9,20,06,12,000/- and demanded stamp duty of Rs. 46,00,30,600/- under Article 5(g-a) of the Act in addition to penalty of Rs.1,53,65,02,204/-. Petitioner replied the show cause notice and once again brought to the notice of the Collector that the adjudicated stamp duty has already been paid on the Development Agreement and that under Second Proviso to Article 48(g) of the Stamp Act, the POA can be stamped with Rs.100/-.

5. However, by the impugned order dated 5 January 2022, the Collector of Stamps, Borivali has virtually copied the show cause notice ad-verbatim and has maintained the demand in the show cause notice.

6. I have heard Mr. Tulzapurkar, the learned senior advocate appearing for Petitioner. He would rely upon provisions of Second Proviso to Article 48(g) of the Act, under which if stamp duty is paid under Clause (g-a) of Article 5 on Development Agreement, the duty chargeable on a POA is only Rs.100/-. He would submit that in the present case, the Development Agreement dated 19 February 2007 has already been stamped with duty chargeable under Article 5(g-a) and that therefore no fresh stamp duty is payable on the POA. He would submit that the Development Agreement and the POA are between the same parties and in respect of the same property. He would also invite my attention to the Second Proviso to Article 5(g-a), under which if proper stamp duty is paid under Article 48(g) on POA, then the stamp duty payable on Development Agreement is only Rs.100/-. Mr. Tulzapurkar would therefore submit that the provisions of Stamp Act do not contemplate payment of stamp duty twice on Development Agreement and Power of Attorney which are executed between the same parties in respect of the same properties. That the Act contemplates payment of stamp duty only once. He would further submit that if there was any error in the stamp duty adjudicated on the Development Agreement, only the Chief Controlling Revenue Authority (CCRA) is entitled to exercise powers under Section