IMPORTANT POINT
Assignment of lease is distinguishable from sub-lease to the extent that in assigning, lessee transfers his entire estate in the demised premises, whereas in sub-lease the sub-lessee acquires something less than the lessee’s entire interest.

Pankaj Mithal, J.—Heard Sri J.P. Pandey, learned counsel for the petitioner and learned standing counsel for the respondents and with their consent, the writ petition is being finally decided.

2. I have also perused the pleadings of the parties.

3. Agra Development Authority developed a residential colony Sanjay Place Group Housing Scheme at Agra. One of the houses in the said scheme i.e. Flat No. 1/2 H.I.G. situate on the ground floor having an area 85.13 sq. metre was allotted to one Kishan Chand Shivhare. A composite lease-cum-sale deed in respect thereof was executed and registered on 9.1.1987 leasing out the land for a period of 80 years and sale of the superstructure though actually superstructure was made by the Agra Development Authority on behalf of the lessee from his funds only. The aforesaid lessee/purchaser subsequently, transferred his rights in the said house in favour of the petitioner vide sale deed dated 31.3.2003 (Annexure 2 to the writ petition) for a consideration of Rs.4,00,000. The petitioner on the said instrument paid stamp duty on the value of Rs. 4,81,000 being the value as per the circle rate notified in accordance with Article 63 of Schedule 1B of the Indian Stamp Act, 1899 (hereinafter referred to as an ‘Act’). On reference, proceedings under Section 47 of the Act were drawn against the petitioner which came to be registered as Stamp Case No. 11 of 2006-07. The District Magistrate vide order dated 22.2.2007 determined. the stamp duty of the aforesaid instrument in accordance with Article 23(vi) of Schedule 1B of the Act treating it to be a lease for more than 30 years chargeable as a conveyance. Accordingly, deficiency in stamp duty of Rs.1,05,200 with interest of 1.5% per month from the date of the execution of the instrument till the payment has been directed to be deposited. A penalty of Rs.10,500 has also been imposed.

4. Aggrieved by the aforesaid order, petitioner preferred a revision before the Chief Controlling Revenue Authority. U.P. which came to be dismissed by the Additional Commissioner Stamp, Agra Division, Agra on 23.12.2009.

5. Both the aforesaid orders dated 22.2.2007 and 23.12.2009 have been challanged by the petitioner in this writ petition.

6. The fundamental question which arises for determination is, whether the document in question i.e. the sale deed dated 31.3.2003 transferring all rights in the house concerned lis, transfer of lease by way of assignment falling under Article 63 of Schedule 1B of the Act or is a lease/sub-lease chargeable to stamp duty as a deed of conveyance as defined under Section 2(10) of the Act according to Article 23 read with Article 35(vi) of Schedule 1B of the Act.

7. Learned counsel for the petitioner has argued that since Article 63 of Schedule 1B of the Act is a specific provision dealing with the transfer of lease by way of assignment, the general provisions relating to chargeability of lease deed stand excluded.

8. Learned Standing counsel has opposed the above submission and has contended that the document in question is not transfer of lease by assignment but in fact is a document of lease/sub-lease whereunder full leasehold rights have been transferred and since it happens to be a lease of more than 30 years it is chargeable to stamp duly as a conveyance under Article 23 of Schedule IB of the Act.

9. It would be beneficial to reproduce the relevant portions of Articles 23, 35(vi) and 63 of the Schedule 1B which reads as under:

10. The term ‘sale’ though defined under Section 54 of the Transfer of Property Act has not been defined under the Act but the same is covered by the term ‘conveyance’ as defined under Section 2(10) of the Act which reads as under:

“Conveyance—Conveyance includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos, and which is not otherwise specifically provided for by Schedule I, Schedule 1A or Schedule 1B, as the case may be.”

11. According to