A certificate of sale issued by an Official Liquidator is chargeable with stamp duty under Article 18 read with Article 23 of Schedule I to the Stamp Act.

This is an application filed by the Official Liquidator, seeking by way of general directions, a clarification as to whether he must execute a Sale Deed or a Certificate of Sale, as and when the property of a company in liquidation, is brought to sale in public auction.

2. Heard Mr.M.Jayakumar, learned Deputy Official Liquidator.

3. In normal circumstances, the question raised in this application may look odd, since a rose by any other name, would smell as sweet and the name tag or the nomenclature given to a document may not be relevant to ascertain its true character. But the question raised in this application is of significance in view of the implications of stamp duty.

4. It appears that there is an emerging trend, among the purchasers of properties in public auctions, to seek the issue of "Certificates of Sale" rather than "Deeds of Sale". This is on the premise that a Certificate of Sale does not require registration compulsorily, in view of the provisions of Section 17(2)(xii) of the Registration Act, 1908. There appears to be a school of thought that such Certificates of Sale do not also attract stamp duty, in view of the obligation cast upon the Registering Officer under Section 89 (2) and (4) of the Registration Act, 1908, to file such Certificates of Sale in Book I, upon being forwarded to them.

5. The above view has found acceptance in a recent decision of this Court in Shree Vijayalakshmi Charitable Trust vs. The Sub-Registrar, Erode District {2009 (5) CTC 15}. Therefore, the Official Liquidator has come up with this application, seeking a clarification, citing the said decision of this Court in Shree Vijayalakshmi Charitable Trust case.

6. In Shree Vijayalakshmi Charitable Trust case, the purchaser of a property in public auction conducted by the Official Liquidator, sought to get the Certificate of Sale filed with the Registering Officer. But the Registering Officer demanded stamp duty as per the provisions of the Indian Stamp Act, 1899. Challenging the demand, the Trust filed a writ petition. Relying upon the decision of the Supreme Court in B.Arvind Kumar vs. Government of India {2007 (5) SCC 745} and the decision of a Division Bench of this Court in K.Chidambara Manickam vs. Shakeena {2008 (1) CTC 660}, the learned Judge allowed the writ petition filed by Shree Vijayalakshmi Charitable Trust, holding that the Sub Registrar cannot demand stamp duty on a Certificate of Sale issued by the Official Liquidator, when it is sought to be filed under Section 89 of the Registration Act, 1908. After holding so, the learned Judge pointed out that the law as it stands today is unfair to the Revenue in todays context and that the legislature should take note of the loophole in the law and plug it by necessary amendments.

7. But the question as to whether stamp duty is payable on a Certificate of Sale, was not examined in Shree Vijayalakshmi Charitable Trust, on a comparative analysis of all the provisions of the Transfer of Property Act, 1882, the Indian Stamp Act, 1899 and the Registration Act, 1908, and the issues of repugnancy and overriding effect of one Act over the other. Moreover, the question as to whether stamp duty was payable on a Certificate of Sale or not, was not decided either by the Supreme Court in B.Arvind Kumar case or by the Division Bench in K.Chidambara Manickam case. In any event, in B.Arvind Kumar, the Supreme Court was concerned with a Certificate of Sale issued by the Official Assignee, who stands on a different footing than the Official Liquidator. Similarly, in K.Chidambara Manickam, the Division Bench was concerned with a Certificate of Sale issued by the Authorised Officer of a Bank, in exercise of the power conferred under the SARFAESI Act, 2002. Therefore, neither the decision in B.Arvind Kumar nor the decision in K.Chidambara Manickam, is for the proposition that a Certificate of Sale does not attract stamp duty. Both these decisions do not deal with the issue of payment of s