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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Biren Vaishnav, J.
Shalin Mukeshbhai Patel – Petitioner
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 387 of 2021
Decided On : 12-12-2022
Constitution of India, 1949 – Article 226, 20, 49 – Gujarat Stamp Act, 1958 – Section 33 – Stamp Act – Sections 5 and 39 – Chief Controlling Revenue Authority – Power of High Court to issue Certain Writs – Petition has been filed for quashing and setting aside orders authorities under Gujarat Stamp Act, 195 – Held, Question of law which has been set out and settled by decisions of various high courts impugned orders are quashed and set aside and respondents are directed to refund entire amount recovered from petitioner in pursuance of impugned orders within a period of eight weeks from writ of order of this court – Petition is accordingly allowed.
JUDGMENT :
1. This petition, under Article 226 of the Constitution of India, has been filed for quashing and setting aside the orders dated 02.07.2019 and 03.06.2020 passed by the authorities under the Gujarat Stamp Act, 1958 (for short ‘the Stamp Act’).
2. It is the case of the petitioner that when a release document is presented for registration by which a co-owner relinquishes her right in the property, the same cannot be impounded by treating the transaction as a sale and stamp duty imposed on it based on the market value.
3. Facts in brief would indicate that the father of the petitioner Mr. Mukeshbhai Hirabhai Patel purchased agricultural land in Zundal village of Gandhinagar district admeasuring Are 0, Hectare 51 and 60 sq. mts as Survey No. 11/1 as HUF property and land admeasuring Are 0, 54 Hectares and 62 sq. mtrs Survey No. 11/2. The said land was purchased by two separate sale deeds registered on 24.02.2000. The father then got the land converted into N.A.
3.1 On 26.03.2013 and 07.07.2013, the petitioner’s father declared the pedigree stating that his family comprises of his wife Ranjanben, daughter Shreya and the son Shalin - petitioner. In the year 2015, the names of the wife Ranjanben, daughter Shreya and the son Shalin – petitioner were shown in the Revenue Record Form 6 and 7/12 along with the owner father – Mr. Mukesh Patel. The petitioner’s sister and daughter of Mukeshbhai Patel by a release deed on a stamp paper of Rs.100/- dated 27.12.2016 relinquished her right in share in favour of her brother Mr. Shalin Patel in respect of two properties. The document was presented for registration before the Sub-Registrar, Gandhinagar bearing document nos. 18488/2016 in respect of Survey No. 11/2 and document no. 18491/2016 in respect of Survey No. 11/1.
3.2 A show-cause notice was issued on 08.05.2017 and 14.09.2017 under the signature of Deputy Collector, Stamp Duty Valuation Authority, Gandhinagar. The documents were impounded under Section 33 of the Act in light of the Government Notification dated 08.05.2013 considering the recital of the document stating that the stamp duty of Rs.100/- was inadequate and the petitioner was asked to show cause as to why stamp duty on the basis of market value of the relinquished portion of the share should not be levied.
3.3 On response to the show-cause notice, the Deputy Collector on 02.07.2019 passed an order and the petitioner was liable to pay deficit stamp duty details of which are as under:
T-A-B-L-E-
| Particulars | Document No/s. No. | Rupees | Document No/s. No. | Rupees |
| Deficit stamp duty for entering names of family members in the property as co-owners during lifetime. U/Sec. 39(1) (b) & Sch I Art. 49(b) & Art. 20 | 18491/2016
S. No. 11/1 | 7,31,185.00 | 18488/2016
S.No. 11/2 | 7,87,266.00 |
| Penalty U/s. 39(1)(b) of the Act. | 18491/2016 S. No. 11/1 | 73,000.00 | 18488/2016 S.No. 11/2 | 79,000.00 |
| Interest U/S. 46 of the Act | 18491/2016 S. No. 11/1 | 1,26,247.00 | 18488/2016 S.No. 11/2 | 1,35,992.00 |
| Registration fees on Release Document | 18491/2016 S. No. 11/1 | 1,49,250.00 | 18488/2016 S.No. 11/2 | 1,60,690.00 |
| TOTAL | - - Do - - | 10,79,682.00 | - - Do - - | 11,62,948.00 |
3.4 The total stamp duty on both documents was Rs.22,42,630/-. Aggrieved by this order, the petitioner filed appeals under Section 53(1) of the Gujarat Stamp Act. After depositing 25% of the stamp duty, by the orders dated 04.06.2020, the appeals were rejected. Hence the present petition.
4. Mr. R.V. Deshmukh, learned advocate appearing for the petitioner would submit that the action of imposing huge stamp duty on the transaction of entry of names of family members in the revenue records and thereafter on the release document is bad. He would
The court clarified the distinction between 'Release' and 'Conveyance', emphasizing existing rights in property under the Indian Stamp Act and the Hindu Succession Act.
Release deeds executed by a member of a Hindu Undivided Family cannot create new rights for one member over others and must be treated as conveyances subject to stamp duty.
The main legal point established is that a Relinquishment Deed executed in favor of one co-owner to the exclusion of others is considered a Conveyance/Gift Deed and must be stamped accordingly. Addit....
The central legal point established in the judgment is that the nature of the transaction and the precise nature of the rights created by the instrument determine whether a deed should be considered ....
Relinquishment deeds by co-owners do not automatically constitute gift deeds requiring higher stamp duty; evidentiary context is critical for determination.
The court ruled that release deeds among family partners must be stamped under Article 55-D(i) of the Indian Stamp Act, and that actual market value must be determined rather than relying solely on g....
Interpretation of statutory provisions and government clarifications to determine the classification of stamp duty under the Indian Stamp Act.
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