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IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Narendra Patel and another v. State of M.P. and another
Writ Petition No. 1777 of 2019 (Gwalior): against order dated 5.9.2018 passed by the Board of Revenue in Revision No. 2017/3011; Decided on 10.4.2019
¼1½ LVkai vf/kfu;e] 1899 & vuqlwph 1d] vuqPNsn 5¼³½ ¼,d½ rFkk ¼nks½ & LVkai 'kqYd dk mn~xzg.k & foØ; dk djkj & djkj ds fu"iknu ls iwoZ gh dCtk ifjnRr & LVkai 'kqYd vuqPNsn 5 ¼³½¼,d½ ds v/khu cktkj ewY; ij mn~xzkg; gS] vuqPNsn 5¼M½¼nks½ ds v/khu ughaA 2015 ¼3½ eŒÁŒ ohDyh uksV~l 38] 2010 ¼2½ ,e ih ,y ts 104 rFkk 2011 ¼3½ ,e ih ,y ts 407 fufnZ"VA ¼iSjk 32] 33] 36 ,oa 44½
¼2½ LVkai vf/kfu;e] 1899 & vuqlwph 1&d] vuqPNsn 5 ¼³½¼,d½ rFkk nks & ykxw gksuk & foØ; dk djkj & vuqPNsn 5¼³½ ¼,d½ rFkk 5¼³½ ¼nks½ esa lqfHkUurk & laifÙk dk dCtk ,dek= lqfHkUurk gS & ftl rkjh[k dks dCtk fn;k x;k og egRoiw.kZ ugha gS & tgka dCtk ugha fn;k x;k & foØ; djkj vuqPNsn 5¼³½ ¼nks½ esa vk,xk & fdarq tgka dCtk ifjnRr fd;k tk pqdk gks ;k gLrkarj.k i= fu"ikfnr fd, fcuk ifjnÙk fd, tkus dk djkj fd;k x;k gks & og vuqPNsn 5¼³½ ¼,d½ esa vk,xkA ¼iSjk 33 ,oa 36½
¼3½ fof/k dk fuoZpu & fl)kar & djk/kku fof/k dk fuoZpu & vko';d fu"d"kksZ ds vfrfjDr dqN Hkh ugha i<+k tkuk gksrk gS vkSj u gh dqN Hkh foof{kr gksuk pkfg, & ;fn nks jk; laHko gksa & rc tks n`f"Vdks.k fu/kkZfjrh@fo"k; ds i{k esa gks] mls viuk;k tkuk pkfg,A ¼2018½ 9 ,l lh lh 1] ¼2010½ 8 ,l lh lh 24] ¼1986½ 2 ,l lh lh 237] ¼2002½ 4 ,l lh lh 105] ¼2015½ 10 ,l lh lh 161] ¼2016½ 11 ,l lh lh 147] ¼2010½ 4 ,l lh lh 301] ¼2016½ 2 ,l lh lh 362] ¼1995½ 1 ,l lh lh 451 rFkk ¼2009½ 1 ,l lh lh 540 vuqlfjrA ¼iSjk 35½
¼4½ LVkai vf/kfu;e] 1899 & /kkjk 33] 40 rFkk 47&d¼5½ & foØ; dk djkj & lE;d:i ls LVkafir ugha & fopkj.k U;k;ky; ds vkns'k ls ifjc) & dysDVj] LVkai dks Ásf"kr & cktkj ewY; vo/kkfjr vkSj 'kkfLr vf/kjksfir & jktLo eaMy ds le{k vihy yafcr jgrs i{kdjksa esa le>kSrk & le>kSrk ekeys dh fo"k; oLrq ugha & fopkj.k U;k;ky; us le>kSrs ds fo"k; esa Lo;a dk lek/kku fd;k & ;kphx.k de iM+ jgs LVkai 'kqYd rFkk 'kkfLr dk lank; djus ds ck/;rkèkhu gSaA ¼iSjk 45 rFkk 46½
¼5½ LVkai vf/kfu;e] 1899 & /kkjk 40 rFkk 47&d ¼2½ ,oa ¼3½ & foØ; dk djkj & lE;d :i ls LVkafir ugha & cktkj ewY; dk vo/kkj.k & dsoy nLrkost ds ifjo.kZu ls laifÙk dk cktkj ewY; vo/kkfjr ugha gksxk ¼iSjk 47½
(1) Stamp Act, 1899 -- Sch. 1A, Arts. 5(e)(i) and (ii) -- levy of stamp duty -- agreement to sell -- possession already delivered prior to execution of agreement -- stamp duty is leviable on market value of property under Article 5(e)(i) and not under Article 5(e)(ii). 2015(3) MPWN 38, 2010(2) MPLJ 104 and 2011 (3) MPLJ 407 referred to. [Paras 32, 33, 36 & 44]
(2) Stamp Act, 1899 -- Sch.1-A, Arts. 5(e)(i) and (ii) -- applicability -- agreement to sell -- distinction between Article 5(e)(i) and 5(e)(ii) -- possession of property is only distinction -- date on which possession is given is not important -- where possession has not been given -- agreement to sell would be covered under Article 5(e)(ii) -- but where possession has been delivered or is agreed to be delivered without executing conveyance -- it would fall in Article 5(e)(i). [Paras 33 & 36]
(3) Interpretation of Statute -- principles -- interpreting taxing statute -- nothing has to be read into nor should anything be implied other than essential inferences -- if two views are possible -- then view which favours assessee/subject should be taken. (2018) 9 SCC1. (2010) 8 SCC 24, (1986) 2 SCC 237, (2002) 4 SCC 105, (2015) 10 SCC 161, (2016) 4 SCC 785, (2017) 3 SCC 467, (2016) 11 SCC 147, (2010) 4 SCC 301, (2016) 2 SCC 362, (1995) 1 SCC 451 and (2009) 1 SCC 540 followed. [Paras 35]
(4) Stamp Act, 1899 -- Ss. 33, 40 and 47-A(5) -- agreement to sell -- not duly stamped -- impounded by order of trial Court -- sent to Collector of Stamps -- market value determined and penalty imposed -- compromise between parties during pendency of appeal before Board of Revenue -- compromise is not subject matter of case -- trial Court itself satisfied about compromise -- petitioners are under obligation to pay deficit stamp duty and penalty. [Paras 45 & 46]
(5) Stamp Act, 1899 -- Ss. 40 and 47-A(2) and (3) -- agreement to sell -- not duly stamped -- determination of market value -- mere recital of document would not determine market value of property. [Para 47]
ORDER
1. Heard on the question of admission.
2. This petition under Article 227 of the Constitution of India has been filed against the order dated 5.9.2018 passed by Board of Revenue in PBR/Revision/Gwl/Stamp Act/2017/3011, thereby affirming the order dated 27.5.2005 passed by Collector, in 15/B-103/2014-15/33, by which the Collector, Stamps while impounding the agreement to sell has held that Stamp Duty of Rs. 4,69,000/- with Penalty of Rs. 4,68,900/- is payable.
3. The necessary facts for the disposal of the present petition in short are that the petitioners have filed a suit for specific performance of Contract, on the basis of an agreement to sell dated 2.4.2011. As the agreement to sell was not properly stamped, therefore, the trial Court directed the Collector to impound the document.
4. The Collector, by order dated 27.5.2015, came to a conclusion that since, the possession of the property was already with the petitioners (intending purchasers), therefore, the agreement to sell is chargeable as per the provisions of Article 5(e)(i) of Schedule 1-A of Stamp Act. Being aggrieved by the order of the Collector, Stamps, the petitioners filed an appeal, which too has been dismissed by the Board of Revenue by order dated 5.9.2018. Accordingly, this petition has been filed.
5. Challenging the orders passed by Collector of Stamps, Gwalior and Commissioner, Gwalior, it is submitted by the Counsel for the Petitioners, that the agreement to sell was executed on 2.4.2011 and at that time Schedule 1-A as substituted by M.P. Act 12 of 2002 was in force and as the possession of the property in question was not delivered to the petitioners by virtue of agreement to sell, and they were already in possession of the same, even prior to the execution of the agreement to sell, therefore, their case is covered by Article 5(e) (ii) of Schedule 1-A of Stamp Act and not by Article 5(e)(i) of Schedule 1-A of Stamp Act, and thus, only one percent of the total consideration of the property set forth in the agreement or memorandum of agreement was payable.
6. Per contra, it is submitted by the Counsel for the State that the Collector of Stamps, Gwalior has not committed any mistake in charging the agreement to sell in accordance with Article 5(e)(i) of Schedule 1-A of Stamp Act.
7. Whether stamp duty as prescribed on the date of impounding shall be payable or not, is not being considered, because the Collector of Stamps, Gwalior has considered the case of the petitioners in the light of the Schedule 1- A of Stamp Act, which was in force on the date of agreement to sell. However, as there is no difference in the duty payable on the date of agreement to sell and on the date of impounding (although Schedule 1-A was already amended), therefore, this question being academic in nature, is not being considered.
8. Heard the learned Counsel for the parties.
9. In order to understand the real controversy involved in the present case, it would be appropriate to consider the various amendments which have taken place in Schedule 1-A of Stamp Act.
10. The agreement to sell was executed on 2.4.2011 and on that date, the Schedule 1-A of Stamp Act, which was substituted by M.P. Act 12 of 2002 as amended from time to time and lastly by 13 of 2008 and 8 of 2011 was in force. Prior to that, the Schedule 1-A of Stamp Act, which was substituted by M.P. Act 20 of 1997 as amended from time to time and lastly by Act 11 of 2000 was in force. The said agreement to sell was taken up for impounding on 27.5.2015, when Schedule 1-A substituted by M.P. Act 2 of 2015, which came into force w.e.f. 7.1.2015, was in vogue.
11. Explanation to Article 23 of Schedule 1-A of Stamp Act, which remained in force till 2002 reads as under :
''Explanation :- For the purpose of this article, where in the case of agreement to sell immovable property, the possession of any immovable property is transferred to the purchaser before execution or after execution of, such agreement without executing
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