Proceedings for recovery of stamp duty under Section 46A must be initiated within five years from registration, barring cases of fraud.

ORAL ORDER

1. The petitioners are before this Court seeking for the following reliefs:

i. To issue a writ of Certiorari or such other appropriate writ or order or direction quashing the order dated 28.02.2017 passed by the Karnataka Appellate Tribunal in Appeal No.141/2014 vide Annexure-A and the Order dated 08.11.2013 bearing Case No.46-A/Y/44-2010-1 and Dastaveju No. 725/95-96, passed by the 1^st respondent vide Annexure-B and all further proceedings thereto in the interest of justice and equity.

ii. Issue such other appropriate writ or order or direction as deemed fit under the facts and circumstances of the case, in the interest of justice and equity.

2. Sri.B.R.Sreenivas Murthy and others were the owners of the following properties;

a. 03 Acres in Sy.No.75/1A (Old Sy.No.75/2).

b. 05 Acres 15 Guntas in Sy.No.75/1B (Old Sy.No.75/1B)

c. 02 Acres 20 Guntas in Sy.No.75/2 (Old Sy.No.75/1A)

3. The said landowners had appointed the petitioners as their lawful attorneys on 23.11.1995, which was presented before the respondent No.2-Sub-Registrar, Yelahanka for registration. Respondent No.2 called upon the petitioner to make payment of registration fee, which was so paid and thereafter the document came to be registered as document No.725/1995-96 on 23.11.1995.

4. Subsequently on 30.12.2010 the respondent No.1 issued a notice, calling upon the petitioner to remit a shortfall in the stamp duty of Rs.98,500/- on the GPA dated 23.11.1995, which is stated to have been issued on the basis of instructions and directions of the Inspector General of Stamps & Registration as per the Official Memorandum (OM) dated 16.12.2010.

5. The petitioner appeared before respondent No.1 on 15.01.2011 and sought for a copy of the OM, which was not so provided. The respondent No.1 passed an order on 8.11.2013 without providing the said document, calling upon the petitioner to make payment of sum Rs.98,500/- within 60 days. The petitioner challenged said order before the Karnataka Appellate Tribunal (KAT) in appeal No.141/2014, which came to be dismissed by order dated 28.2.2017, it is challenging the same, that the petitioners are before this Court seeking for the aforesaid reliefs.

6. The submission of Sri.K.N.Phanindra., learned Senior counsel appearing for the petitioner is that the action which has been taken by the respondents is contrary to the applicable law on two main grounds;

6.1. Firstly, that the notice has been issued to the power of attorney and not to the person who has executed the power of attorney. The stamp duty, if any, would be liable to made payment of by persons who have executed the power of attorney.

6.2. Secondly, he submits that any action under Section 46A of the Karnataka Stamp Act, 1957 was required to be taken within five years from the date of execution of the document. In the present case, the document has been executed and registered on 23.11.1995, notice has been issued on 30.10.2010 i.e., little over a month after the expiry of fifteen years and as such he submits that under Section 46A , there are no powers vested with the respondents to reopen the matter and issue notice calling upon the petitioner to make payment allegedly on account of deficit stamp duty.

7. Learned AGA seeks to support the order by stating that though notice was issued on 30.12.2010, the OM had been issued on 16.12.2010 and it took some time for necessary action to be initiated. Therefore, the delay will not come in the way of the respondents initiating the action and the order passed by the respondent No.1 and the KAT in this regard are proper and correct. He further submits that the period of five years has been substituted by a period of ten years in Section 46A and therefore, the notice which has been issued is proper and correct.

8. Heard Sri.K.N.Phanindra., learned Senior counsel appearing for the petitioner and Mahantesh Shettar., learned AGA appearing for respondents No.1 and 2. Perused papers.

9. The short question that would arise for consideration is