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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Sanjeev Prakash Sharma, J.
M/s Ajaymeru Housing Development Pvt. Ltd. - Petitioner
Versus
M/s Vrindavandham Buildev (India) Pvt. Ltd. and Ors. – Respondents
S.B. Civil Writ Petition No. 25614 of 2018
Decided On : 16-05-2019
Rajasthan Stamp Act, 1998 – Section 2(xi), 52, 52A – Income Tax Act, 1961 – Section 254(2) – Civil Procedure Code, 1908 – Order 9 – Rule 13 r/w Section 151 and 152 B – Petition Against order of Collector – Respondent filed a revision before Rajasthan Tax Board, alleging Collector wrongfully reduced stamp duty and Rajasthan Tax Board impugned order allowed revision and set aside order restoring earlier order of Collector, Stamps holding petitioner liable to pay a stamp duty as assessed earlier – Held, Tax Board not examined scope available with Collector in terms of Section 52A Act of 1998 – Noticed from order sheets which were mentioned in application moved by petitioner, before Collector, apparent that order passed earlier by Collector was ex-parte order – Power exercised by Collector while revising his earlier order not only exercise powers under Section 52 but also exercised powers under Section 52A. – Power under Section 52A would be much wider than that of under Section 52 and Collector entitled to go into the merits of case – Appeal for rectifying mistakes available under section 52 thus viewed, order passed by Tax Board cannot be said sustainable in law as it is only examine case in light of power exercisable by Collector in terms of Section 52 alone – Therefore order passed by Sales Tax set aside – Order of Collector with regard to depositing stamp duty on agreement is upheld – Petition allowed (Paras: 18,19 &20)
Facts of the case:
Petition Against order of Collector – Respondent filed a revision before Rajasthan Tax Board, alleging that Collector has wrongfully reduced stamp duty and Rajasthan Tax Board vide impugned order allowed revision and set aside order restoring earlier order of Collector, Stamps holding the petitioner liable to pay a stamp duty as assessed earlier
Findings of the court:
Tax Board not examined scope available with Collector in terms of Section 52A Act of 1998 – As noticed from order sheets which were mentioned in application moved by petitioner, before Collector, apparent that order passed earlier by Collector was ex-parte order – Power exercised by Collector while revising his earlier order not only exercise powers under Section 52 but also exercised powers under Section 52A. – Power under Section 52A would be much wider than that of under Section 52 and Collector entitled to go into the merits of case – Appeal for rectifying mistakes available under section 52. Thus viewed, order passed by Tax Board cannot be said sustainable in law as it is only examine case in light of power exercisable by Collector in terms of Section 52 alone – Therefore order passed by Sales Tax set aside – Order of Collector with regard to depositing stamp duty on agreement is upheld
Result: Petition allowed
ORDER :
1. The petitioner has assailed the order dated 22.10.2018 passed by the Rajasthan Tax Board in Civil Revision No.487/2018 whereby the revision has been allowed and the order dated 16.04.2018 passed by the Collector (Stamps) has been set aside.
2. Brief facts which required to be noted for consideration of the case are that on 2.7.2003 an agreement was executed between the petitioner-M/s. Ajaymeru Housing Development Pvt. Ltd. Company engaged in housing with one Rajendra Prasad Yadav, respondent No.2 of the present petition. Firm purchased agriculture lands owned by him at Village Lavana, Tehsil Amer Distt. Jaipur ad-measuring 1,18,275 Sq. Yards. As per clause 2 therein the payment was to be paid by the petitioner within three years whereafter the respondent seller would allow the petitioner to make demarcation on the said land. Before completion of the three years period, respondent No.2 further sold the land by registered sale deed to one M/s. Vrindavandham Buildev (India) Pvt. Ltd.-respondent No.1 on 24.06.2006.
3. Petitioner thereafter filed a suit for specific performance and mandatory injunction for declaration of sale deed executed in favour of respondent No.1 as null and void before the civil Court on 29.03.2009. On 17.05.2013, respondents filed their reply and on 23.11.2013 trial Court framed in all 11 issues.
On an application moved by respondent No.1 before the trial Court, the document agreement dated 4.4.2016 said to have been exhibited between the petitioner and respondent No.2 was deleted and was not allowed to be marked as an Exhibit vide order dated 04.06.2016.
The petitioner preferred a writ petition before this Court bearing S.B.C.W.P.No.2607/2017 challenging the said order and the writ petition was allowed. The order dated 4.4.2016 was set aside with direction to the petitioner to submit an application before the Court below for removing the deficiency of stamp duty as contemplated under Sections 35, 36 and 37 of Rajasthan Stamp Act.
The petitioner thereafter submitted an application accordingly and the trial Court sent the matter to the Collector, Stamps who vide his order dated 12.10.2017 held that the agreement is liable for stamp duty and assessed the market value and directed the petitioner to pay a sum of Rs.1,15,26,470/- towards stamp duty including surcharge and surcharge for conservation and propagation of cow. An application thereafter moved by the petitioner under Section 52, 52A of Rajasthan Stamp Act, 1989 alongwith Order 9 Rule 13 read with Section 151 CPC and 152 B of CPC alleging that the order was passed ex-parte and after hearing the petitioner the Collector, Stamps modified and corrected its earlier order vide its order dated 16.04.2018 and held that the petitioner is liable to deposit a sum of Rs.2,81,520/- as stamp duty in relation to the agreement. Accordingly, the petitioner deposited the said amount.
Against the order of the Collector dated 16.4.2018, respondent No.1 filed a revision before the Rajasthan Tax Board, Ajmer alleging that the Collector has wrongfully reduced the stamp duty and the Rajasthan Tax Board vide impugned order dated 22.10.2018 allowed the revision and set aside the order restoring earlier order of Collector, Stamps dated 12.10.2017 holding the petitioner liable to pay a stamp duty as assessed earlier of Rs. 1,15,26,470/-.
4. Feeling aggrieved, the petitioner has preferred this writ petition and inter alia Counsel for the petitioner submits that the petitioner had filed suit for specific performance and mandatory injunction with the purpose to get the agreement registered. It is his submission that the Rajasthan Tax Board has failed to appreciate that respondent No.1 has no locus with regard to the stamp duty liable to be paid on the agreement entered between the petitioner and respondent No.2 and the revision at his behalf would not lie to the Rajasthan Tax Board. It is his submission that the Collector has inherent power to correct/rectify his mistakes in terms
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