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High Court Of Calcutta
Barin Ghosh
MENDARIAN ENTERPRISES PVT.LTD - Appellant
Versus
INSPECTOR GENERAL OF REGISTRATION, RAJA ANNAMALAIPURAM - Respondent
W. P. 1342 Of 2003
Decided On : 11/13/2003
STAMP DUTY - INDIAN STAMP ACT, 1899 - SECTION 4 - AGREEMENT FOR SALE AND CONVEYANCE - SEVERAL INSTRUMENTS EMPLOYED FOR COMPLETING THE TRANSACTION - PRINCIPAL INSTRUMENT - DUTY CHARGEABLE.
Fact of the Case:
The petitioner entered into an agreement for sale of an immovable property on 21st November, 2001. The petitioner paid stamp-duty on the agreement for sale as a Conveyance on the basis of market value. A Conveyance was executed on 11th November, 2002 in favor of the petitioner. The petitioner presented the Conveyance along with 2% surcharge on account of the Calcutta Improvement Trust Act as also the charges payable for registration. The registration was not made of that instrument. The registering authority was demanding Stamp-duty at the rate of 6% for the Conveyance, less the stamp-duty paid by the petitioner at the time of executing the agreement for sale.
Finding of the Court:
The court held that the proviso to Article 23 of Schedule IA to the principal Act, which provided for a reduced stamp duty on a conveyance if an agreement for sale had already been stamped with ad valorem duty, was not in force at the time the petitioner executed the conveyance. Therefore, the petitioner was only liable to pay the stamp duty of Rs. 2/- on the conveyance.
Issues: Whether the proviso to Article 23 of Schedule IA to the principal Act, which provided for a reduced stamp duty on a conveyance if an agreement for sale had already been stamped with ad valorem duty, was in force at the time the petitioner executed the conveyance.
Ratio Decidendi: The court held that the proviso to Article 23 of Schedule IA to the principal Act was not in force at the time the petitioner executed the conveyance because it had been deleted by a subsequent amendment to the Act. The court also held that the provisions of section 4 of the Act, which provides that the duty chargeable on the principal instrument is the highest duty which would be chargeable in respect of any of the instruments employed, applied to the petitioner's case. Therefore, the petitioner was only liable to pay the stamp duty of Rs. 2/- on the conveyance.
Final Decision: The court allowed the petition and directed the registrar to register the deed in question without claiming 1% stamp-duty from the petitioner.
( 1 ) SECTION 4 of the Indian Stamp Act, 1899 as amended by the bengal Stamp (Amendment) Act, 1922, is as follows:-"4. Several instruments used in single transaction of sale, mortgage or settlement.- (1) Where, in the case of any sale, mortgage or settlement, several instruments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in schedule 1 or in Schedule 1a, as the case may be, for the conveyance, mortgage or settlement and each of the other instruments shall be chargeable with a duty of one rupee, if the principal instrument be chargeable with the duty prescribed in Schedule 1 or with a duty of (two rupees), if the principal instrument be chargeable with the duly (if any) prescribed for such other instrument in Schedule 1 or Schedule 1a, as the case may be. (2) The parties may determine for themselves which of the instruments so employed shall, for the purposes of sub-section (1), be deemed to be the principal instrument: provided that the duty chargeable on the instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instruments, employed. "
( 2 ) BEFORE 8th October, 1990 Articles 5 and 23 of Schedule 1a of the Act were as follows:- "description of Instrument proper Stamp-duty 5. Agreement or Memorandum of an agreement-Rupees five. Exemptions agreement or Memorandum of agreement- (a) for or relating to the sale of goods or merchandise exclusively, not being a Note or Memorandum chargeable under No. 43; (b) made in the form of tenders to the Government of India for, or relating to any loan. Agreement to lease- see Lease (No. 35), 23. Conveyance, [as defined by section 2 (10)] not being a Transfer charged or exempted under No. 62- where the amount or value of the Rupee one and fifty paise. consideration for such conveyance as set forth therein does not exceed Rs. 50.
( 3 ) ON 8th October, 1990 the Indian Stamp (West Bengal Amendment) Act, 1990 was published in the Calcutta Gazette, Extraordinary, Part III. The relevant provision of the said Amending Act with which we are concerned herewith are as follows:-"1. Short title and commencement.- (1) This Act may be called the Indian stamp (West Bengal Amendment) Act, 1990. (2) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint. 10. Amendment of Schedule 1a,- In Schedule 1a to principal Act, - (1) in Article 5, for item (d) and the entries relating thereto under the headings 'description of Instruments' and 'proper Stamp-duty', the following items and entries shall be substituted:- ' (d) if relating to a sale or lease-cum The same duty as a Conveyance -sale of immovable property; (No. 23)for a market value. (e) if relating to matters not otherwise Rupees ten. otherwise provided for, except matters relating to cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies or receipts. Exemption.- The expression 'agreement or Memorandum of an Agreement', if relating to a sale, shall include an agreement to sell or any memorandum or acknowledgement in relation to transfer or delivery of possession of immovable property with an intent to transfer right, interest in, or title to, such property at any future date. ' (2) in Article 23,- (a) in the column under the heading 'description of Instruments', for the words 'where the amount or value of the consideration', the words, 'where the market value' shall be substituted; (b) after the entry beginning with the words, 'rupees twenty-five thousand' and ending with the words, letters and figures, 'in excess of Rs. 2,00,000', in the column under the heading, 'proper Stamp-duty', the following proviso shall be added: 'provided that in any case where sale or lease-cum-sale agreement is executed and is stamped with the ad valorem stamp required for such agreement under item (d) of Artic
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