The main legal point established in the judgment is that instruments executed for the purpose of carrying out the purposes of the Special Economic Zones are exempt from payment of stamp duty, and any collection of stamp duty contrary to law must be refunded.

JAISHREE THAKUR. J.

1. The present writ petition has been filed under Article 226/227 of the Constitution of India seeking a writ in the nature of mandamus to be issued for refund of the stamp duty paid on the lease deed.

2. In brief the facts as can be discerned are that the land in question belongs to the petitioner M/s ASF Insignia SEZ Private Limited and is situated in the Special Economic Zone and is therefore exempted from stamp duty. Tata Consultancy Services (“TCS” for short), respondent No.7 herein, took the land from the petitioner-M/s ASF Insignia SEZ Private Limited, under lease. Although the land is exempted from stamp duty, the respondent State emphasized that the procedure for getting the lease deed registered, is to pay the stamp duty in the first instance and then get the said amount refunded. TCS, the lessee, paid the stamp duty amounting to Rs.2,08,02,845/- to get the lease deed registered. As per Clause 6 in the lease deed, it was specified that in case the stamp duty is not refunded by the State to the lessee for whatsoever reason, despite the land being exempt from payment of stamp duty, then the applicable stamp duty shall be refunded by the lessor i.e. the petitioner to the respondent-TCS against the lease rent payable. Said clause of the lease deed further specified that the lessor shall fully indemnify and keep harmless the lessee in this regard. Since the stamp duty was not being refunded to the lessor by the State, the present writ petition has been filed seeking refund since the petitioner has to indemnify the respondent in case of any loss. Hence, the present writ petition.

3. Mr. Jasdev Singh Mehinderatta, learned counsel appearing on behalf of the petitioner would submit that the levy of stamp duty on the registration of the lease deed is contrary to the provisions of Section 3 of Indian Stamp Act, wherein proviso in sub-section (3) specifies that no stamp duty shall be charged in connection to the land in the Special Economic Zone. The petitioner also relies upon Article 265 of the Constitution of India which specifies that no tax shall be levied or collected except by authority of law. It is also argued that respondent No.7 had addressed several communications for refund of the stamp duty paid and the Director Industries and Commerce in its communication dated 29.11.2013 asked the said respondent to take up the issue with the SEZ Developers, who in turn should take up the matter with the State Government. There is communication available on the record from the authorities concerned which would reflect that stamp duty should not have been charged.

4. Per contra, Mr. Anant Kataria, DAG, Haryana, learned counsel appearing on behalf of the respondent-State would submit that the petitioner has no locus to maintain the present petition because the stamp duty has been paid by respondent No.1- M/s TCS Ltd. and not the petitioner. Moreover, there is no provision for refund of stamp duty under the provisions of the Indian Stamp Act. It is argued that Section 49 and 54 of the said Act provides for various situations for refund of stamp duty and the case of the petitioner is not covered thereunder.

5. I have heard the counsel for the parties and with their assistance have gone through the pleadings of the case and the law applicable.

6. Admittedly, the petitioner herein leased land that is part of the Special Economic Zone to respondent No.7 and the lessee had to deposit stamp duty to get the same registered. In terms of clause 6 of the Lease Agreement, it was the duty of the petitioner to facilitate the application made for refund of the stamp duty. Clause 6 of the Lease Agreement as under:-

“........ it shall be the responsibility of the lessor to facilitate the application made by the lessee for such stamp duty refund; and in case such stamp duty refund cannot be availed due to any reason whatsoever, in spite of such exemption (by way of refund) being available under the applicable SK said scheme and the less