Back
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
V-2 Realty, Throu. Partner, Samkit Rajendra Shah - Petitioner
Versus
State of Gujarat - Respondent
R/Special Civil Application No. 19993 of 2018
Decided On : 16-10-2019
Constitution of India,1950 - Articles 226 and 227 - Stamp duty - Article44(3)(a) - Schedule-I 20, 44 (1), 20 r/w. 44(3) and 44(3) - Partnership Act, 1932 - Section 60 - Partnership Act, 1932 - Section 60 - Transfer of Property Act, 1882 - Section 54 - Stamp Act, 1958 - Section 2(g) Petitioner that petitioner which is a partnership firm is carrying out the business in the name and style of ‘V2-Realty - Petition is filed by one of the partners of petitioner firm - Petitioner firm was incorporated w.e.f. - Indian Partnership Act, 1932 and was carrying out business in the name and style - Petitioner firm purchased immovable property by registered sale - Petitioner that from time to time several alterations/ rectifications were made in the partnership deed of petitioner firm with consent of partners and some of partners have resigned, whereas, some others have been admitted / entered in partnership firm, and accordingly, necessary rectifications / changes were made in the partnership deed - Another partnership deed was executed authorizing the partners of the petitioner firm to execute the agreements, deeds, sale deeds with regard to the properties of the partnership firm and also giving powers for registration of such deeds on behalf of partnership firm and such partnership deed – Held, Respondents vehemently opposed the petition and submitted that as per Article44 of Schedule-I to Stamp Act, partnership deed executed by petitioner firm refers to change of the partnership firm from ‘V2 Agro’ to ‘V2 Realty partnership firm is transferred from one name to another, resulting into change in the capital and the profit sharing ratio, stamp duty is to be levied under Article 20 of Schedule-I to the Stamp Act - Learned Assistant Government Pleader further submitted that respondent no.1 has rightly considered that partnership deeds have been changed from time to time and the deficit stamp duty though was paid but due to change in the name of the firm - There is no conversion of the partnership firm into limited liability partnership, because on bare perusal of partnership deed it was only for authorizing the partners of the partnership firm to execute agreement/s, deed/s and sale deed/s as regards properties of the partnership firm and also authorizing partners to execute sale deeds and /or other deeds and also for the registration purpose of such deeds on behalf of the partnership firm - Petitioner firm which was earlier known as ‘V2 Agro’ was renamed as ‘V2 Realty’ and partnership deed for the said effect was already executed - Petitioner firm has also deposited the deficit stamp duty Deed of Partnership are severally and jointly authorized to enter into any agreement/s, deed/s, lease deed/s, sale deed/s, etc. with regard to property of the partnership firm and also jointly and severally authorized to sign, execute and admit for registration the same before the competent authority, from time to time, and to carry on business in partnership as stated herein and on the following terms and conditions as mutually agreed upon by and between them relating to partnership - There is no change either in the partners or their profit sharing ratio as per last partnership deed executed - Partnership deed only refers to the change of the name of the partnership firm name of partnership firm, it cannot be said that there is change of ownership – petition is allowed.
JUDGMENT :
1. Rule, returnable forthwith. Learned Assistant Government Pleader Mr. Dhawan Jaiswal waives service of notice of Rule on behalf of the respondents.
2. Having regard to the controversy involved in this petition is narrow compass, with the consent of the learned advocates appearing for the receptive parties, the matter is taken up for final hearing.
3. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs :
(B) Your Lordships may kindly be pleased held and declared that the present petitioner is not liable to pay the deficit Stamp Duty levied by the present respondent No.1 by an order dated 11/16.10.2018 in Review Application No.73 of 2017.
(C) Pending hearing and final disposal of this petition your Lordships may kindly be pleased to stay the implementation, execution & operation of the impugned Order dated 11/16.10.2018 passed by the respondent No.1 in Review Application No.73 of 2017 at Annexure-A to this petition.
(D) To pass such other and further order/s necessary in the interest of justice.”
3.1. It is the case of the petitioner that the petitioner which is a partnership firm is carrying out the business in the name and style of ‘V2-Realty’. The petition is filed by one of the partners of the petitioner firm.
3.2. The petitioner firm was incorporated w.e.f. 27.02.2012 under the provisions of the Indian Partnership Act, 1932 and was carrying out the business in the name and style of ‘V2 Agro’. The petitioner firm purchased the immovable property by registered sale deed vide registration No. 6213 of 2012 in the name of ‘V2 Agro’.
3.3. It is the case of the petitioner that from time to time several alterations/ rectifications were made in the partnership deed of the petitioner firm with the consent of the partners and some of the partners have resigned, whereas, some others have been admitted / entered in the partnership firm, and accordingly, necessary rectifications / changes were made in the partnership deed on 18.05.2012, 21.12.2013 and 29.07.2014.
3.4. It appears that the present partnership firm in the name and style of ‘V2 Realty’ was earlier known as ‘V2 Agro’ and name of the partnership firm ‘V2 Agro’ was changed to ‘V2 Realty’ w.e.f. 06.10.2015 by execution of the partnership deed without change in the partners or their share in profit/loss as per the previous partnership deed dated 29.07.2014.
3.5. It appears that thereafter another partnership deed dated 20.04.2016 was executed authorizing the partners of the petitioner firm to execute the agreements, deeds, sale deeds with regard to the properties of the partnership firm and also giving powers for registration of such deeds on behalf of the partnership firm and such partnership deed dated 20.04.2016 was registered with the Registrar of Firm, Surat Range2 in prescribed Form-G and the registration no.11077 of 2016 was issued by the Certificate of Registration dated 21.06.2016.
3.6. It is the case of the petitioner that the partnership deed dated 20.04.2016 was executed on the non-judicial stamp paper of Rs.100/ and thereafter, an amount of Rs.10,000/ was deposited before the Deputy Collector and Stamp Duty Valuation Officer-respondent no.3 on 07.12.2016 towards the deficit stamp duty, and after such deposit, the respondent no.3 returned the original partnership deed.
3.7. It appears that, thereafter, the respondent no.2 Collector and Additional Superintendent of Stamps issued a notice dated 14.07.2017 under Section 53A of the Gu
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
