The main legal point established in the judgment is the classification of the Deed of Assent as a Gift Deed under the Indian Stamp Act, 1899, and the liability for stamp duty and penalty.

The petitioner has filed the present writ petition being aggrieved by order dated 25-10-2011, passed by Board of Revenue, by which, the revision has been dismissed and the order of the Collector dated 22-9-2008 has been affirmed.

2. Brief facts of the case are that the petitioner is a Private Trust, constituted by way of the “Will” dated 26-10-2002, executed by Late Shri S.C. Dhanda (died on 5-7-2003). Shri S.C. Dhanda created a Trust by appointing his elder son Yogesh Dhanda as Chairman and two other trustees, who are other than the family members. Later on, two more trustees were inducted in the trust. Copy of the ‘Will’ dated 26-10-2002 is filed in the writ petition as Annexure-P/3. Later on, Board of Trustees in its meeting held on 6-4-2005, has passed the resolution to transfer the interest of deceased in Lantern Hotel property in favour of Yogesh Dhanda and Ishan Dhanda i.e. sons of late Shri S.C. Dhanda. To implement the aforesaid resolution, ‘Deed of Assent’ was executed on 21-4-2005, by which, the trustee/executor gave assent to complete the title to the legatees and vested absolutely forever in their favour the properties of Lantern Hotel and Jahaz Mahal.

3. Respondent No. 3, who was not related to functioning of the trust and the properties but under the garb of social worker, made a complaint to the Collector of Stamp that ‘Deed of Assent’ was executed without payment of proper stamp duties. On the basis of said complaint, the Collector of Stamp, Indore registered a Case No. 77/46(B)/47(A)(3) and issued notice under section 48-B of Indian Stamp Act, 1899 to the petitioner through Yogesh Dhanda and other trustees. The petitioner filed a detailed reply along with preliminary objection before the Collector of Stamp, Indore.

4. By order dated 22-9-2008, the Collector of Stamp has held that the trustee has acted contrary to the intention of executor - Late Shri S.C. Dhanda and transferred to Yogesh Dhanda and Ishan Dhanda. This is not a ‘Deed of Assent’ but is a ‘Gift’ because no consideration has been paid in lieu of the transfer, therefore, under Schedule 1-A of Article 31 of the Indian Stamp Act, 1899 the duty @ 8% is liable to be paid on the market value of the property. On the basis of the market guideline of the year 2005-06, value of the properties was assessed as Rs. 12,80,99,000/- and the total stamp duty payable was assessed Rs. 1,28,09,900/-. The Collector has also imposed 10 times penalty to the tune of Rs. 12,80,97,000/- and directed the petitioner to pay within 30 days in the Government Treasury. Being aggrieved by the order of Collector, the petitioner preferred a reference before the Board of Revenue under section 56(4) of Indian Stamp Act, 1899. The reference was argued on the ground that the ‘Deed of Assent’ is not notified in the Schedule No. 1-A of Indian Stamp Act, therefore, no stamp duty is liable to be paid by the petitioner. Under sections 332 and 332 of Indian Succession Act, that assent of executor of a ‘Will’ does not require or to pay ad valorem stamp duty. The executor appointed under a ‘Will’ has no title to the property bequeathed. Therefore, there is no question of transferring of title. The imposition of penalty @10 times was also challenged by way of reference. The petitioner has prayed that this matter be referred to the High Court by way of reference, as important issue of imposition of tax and penalty are involved. By order dated 25-10-2011, the Board of Revenue has dismissed the reference. Hence, the present writ petition before this Court.

5. Vide order dated 10-11-2011, notices were issued to the Respondents and vide order dated 8-12-2011, interim relief was granted to the petitioner that they shall not create third party right and shall not alienate the property and the Respondents shall not take coercive action for recovery of the stamp duty and penalty. Vide order dated 13-7-2012, the petition was admitted for final hearing. Respondent No. 4 filed an application for dismiss