IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 11348 of 2016 ==========================================================

ELECON EPC PROJECTS LTD., Versus PRINCIPAL SECRETARY/ADDITIONAL CHIEF SECRETARY REVENUE DEPARTMENT & 2 other(s)

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Appearance:

MR HARSHAD J SHAH(752) for the Petitioner(s) No. 1 MS DHWANI TRIPATHI, AGP for the Respondent(s) No. 1,2,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 08/11/2022

ORAL ORDER

1. Heard learned advocates for the parties.

2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the communication dated 07.05.2016 passed by respondent no. 3 – Chief Controlling Revenue Authority in Stamp Appeal No. 90 of 2016 by which the request for refund of stamp was rejected confirming the order dated 30.09.2015.

3. Facts in brief would indicate that the petitioner which is a company registered and incorporated under the provisions of the Companies Act, 1956 issued non cumulative, non convertible redeemable preference shares of Rs.100/- each aggregating to Rs.1,27,32,00,000/- on 03.02.2015 for which the company was required to pay stamp duty of Rs.12,73,200/-. On 04.03.2015, the petitioner company paid stamp duty for issuance of these shares by way of an adhesive stamp in the nature of franking done on the instrument by the Vallabh Vidhyanagar Commercial Cooperative Bank Ltd. which was authorised by the State Government. After having paid the stamp duty in the mode so made, the company informed the concerned about the payments so made.

3.1 However, on 11.05.2015, the company made an application for payment of consolidated stamp duty which was also paid for an amount of Rs.12,73,200/- on 14.05.2015. Since therefore a stamp duty was paid towards first through the mode of special adhesive stamp and secondly through the consolidated mode, the petitioner company applied for refund of the stamp duty paid by way of franking.

4. Reading the application, Mr. Harshad Shah, learned counsel for the petitioner would submit that in accordance with the provision of Section 47 (c)(6) of the Gujarat Stamps Act (for short ‘the Act’), an application for refund was made with sufficient proof by way of attaching documents namely the original preference share certificate bearing franking of Rs.12,73,200/- done by the Vallabh Vidhyanagar Commercial Cooperative Bank Ltd., format prescribed by the Superintendent of Stamps, Gujarat State for stamp duty refund, affidavit as prescribed by the office of the Superintendent of Stamps, Gujarat State for stamp duty refund, copy of money receipt for stamp duty payment of Rs.12,73,000/- towards consolidated stamp duty payment and certified true copy of page no. 240 of Register of Sale of Stamps by Machine Impressions of the Vallabh Vidhyanagar Commercial Cooperative Bank Ltd. That application was rejected by the impugned orders on the ground that the company is not entitled for refund of the same as the case would not fall under Section 47(c)(6) of the Act but under Section

47(b) of the Act.

5. Ms. Dhwani Tripathi, learned AGP would vehemently oppose the petition and justify the impugned orders. She would also fall back on the affidavit-in-reply filed on behalf of respondent no. 3 indicating that the application for refund was made by suppressing the very fact before the competent authority that prior to the application for consolidated stamp duty on 11.05.2015, the company had paid on 04.03.2015 stamp duty through the franking mode. Though the application for refund was made within six months as provided under the provisions of the Act, since the case was not falling within the provisions under Section 47(c)(6) of the Act and the instrument is not falling within the same, the application for refund of stamp duty was rejected.

6. Considering the submissions made by learned counsels for the respective parties, what