2009 Supreme(Guj) 104

2009 (3) GCD 2152 (Guj)
Hon’ble Mr. Justice K.A. Puj
Metro Hospital & Research Institute
Versus
State of Gujarat & Ors.
Special Civil Application No. 12701 of 2008—Decided on 27/02/2009

Point in Issue :
Whether respondent authorities were justified to claim additional stamp duty on basis of determining market value of property excess than shown in sale-deed?

Headnote:Head Note :

       (a) Bombay Stamp Act, 1958 — Sections 32-A and 53(1) — Order for payment of additional stamp duty — Appeal against — Dismissal on ground of — Limitation — Propriety of order — In the facts of the case it is clear that order dated 26.03.2008 was received by petitioner on 01.07.2008 and appeal was filed on 07.08.2008 — By no stretch of imagination it can be said that the said appeal was barred by limitation — Even if there is any dispute with regard to the date of receipt of the order dated 26.03.2008 the Chief Controlling Revenue Authority should have called explanation from petitioner and had enquired about the fact — The appeal authority before ex parte deciding by simply writing that appeal was not within limitation can not be allowed to stand — Court set aside and quashed the impugned order dated 07.09.2008 of appellate authority.

       Held :

       The order dated 26.3.2008 was received by the petitioner on 1.7.2008 and the Appeal was filed on 7.8.2008. By no stretch of imagination it can be said that the said Appeal was barred by limitation. Even if there is any doubt or dispute with regard to the date of receipt of the order dated 26.3.2008, the Chief Controlling Revenue Authority should have called for the explanation from the petitioner before ex parte deciding the petitioner’s Appeal vide his order dated 7.9.2008 by simply writing a letter to the petitioner stating therein that the Appeal presented by the petitioner was not within the period of limitation as provided under Section 53(1) of the Bombay Stamp Act. This order of the Chief Controlling Revenue Authority is, therefore, absolutely illegal, unlawful, contrary to the provisions of the Act, against settled legal position and violative of principles of natural justice and hence the same deserves to be quashed and set aside. [Para 18]

       Head Note :

       (b) Constitution of India, 1950 — Article 226 — Refund of additional stamp duty — Claims for — Ground of determining market value excess than shown in sale-deed — Sustainability — Finding of — Court found that both authorities below has committed error in determining value of property at Rs. 31,52,69,600/- as against Rs. 21,37,34,400/- shown by petitioner in the deed of conveyance and there was raised demand of additional stamp duty — There is no dispute that the property was acquired by petitioner through an auction sale conducted before the Court at the behest of Official Liquidator — Sale was confirmed in favour of petitioner after valuation given by authorised valuer — Deputy Collector while determining the valuation at 31,52,69,600/- has not given any acceptable reasons — Beside the petitioner has not been given chance to challenge the order and it has violated the principles of Natural Justice — In view of the above impugned order passed by authorities can not be held justified — Same are quashed and set aside.

       Held :

       The Court is of the view that both the authorities below have committed an error in law as well as on facts in determining and/or confirming the market value of the property in question at Rs. 31,52,69,600/- as against Rs. 21,37,34,400/- shown by the petitioner in the deed of conveyance executed on 15.7.2007 and thereby raised a demand of Rs. 49,75,461/- inclusive of cost of Rs. 250. It is very strange and surprising that the show cause notice was issued by the Dy. Collector on 26.3.2008 calling upon the petitioner to offer its explanation within 10 days from the date of receipt of the said notice and at the same time passing the order on the same date i.e. 26.3.2008. Even if it is assumed that the show cause notice was served on the representative of the petitioner on the same date i.e. 26.3.2008 and his signature was obtained on the said show cause notice, it cannot be presumed that the petitioner has agreed to enhance market value proposed to be determined by him in the show cause notice. It cannot also be presumed that the petitioner has agreed to waive its right to offer the explanation or to agree with the Dy. Collector’s stand that the order determining the enhanced market value should be passed on the same day. [Para 17]

       There is no dispute about the fact that the property was acquired by the petitioner through an auction sale conducted before the Court at the behest of the Official Liquidator as the property was originally belonging to Mayo Hospital, a Company in liquidation. Since the petitioner stood the highest bidder before the Court, the sale was confirmed in its favour. Hence there is no question of any under estimate of the value of the properties. The valuer has estimated the value of properties at Rs. 17,53,44,000/- whereas the sale was confirmed in favour of the petitioner for Rs. 24.20 crores. The value of the land and building has been fixed at Rs. 15,48,81,000/- and Rs. 5,88,53,400/-. While determining the market value of the property at Rs. 31,52,69,600/-, the Dy. Collector has not cited any comparative sale instance nor referred to any documentary evidence.

       The Dy. Collector has also not taken into consideration the fact that the property was acquired by the petitioner under the Court auction and hence unless some cogent, clear and unequivocal evidence is brought on record showing the higher value then the price at which the said property was acquired by the petitioner under Court auction, the said price should not be disturbed. [Para 20]

       Law Laid Down :

       Unless some cogent reasons are given value of which property is acquired under Court sale should not be disturbed.