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2022 Supreme(Online)(MAD) 18533
HIGH COURT OF MADRAS
R.Subramaniam, J
Bell Tower Enterprises Llp – Appellant
Versus
State Of Tamil Nadu – Respondent
W.P.No.23237 of 2018
Important Points
Subject
Taxation Law - Stamp Duty and Registration
Act Referred
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002: S.13(4)
Indian Stamp Act, 1899: S.47-A
Tamil Nadu District Municipality Act, 1920: S.116-A
Headnote
Facts of the case:
The petitioner purchased secured assets in an e-auction conducted by a bank; the registering authorities treated the sale certificates as conveyances, collecting 7% stamp duty and 4% registration fees. The petitioner challenged this as erroneous, contending that such certificates attract 5% stamp duty and 1% registration charges, and sought a refund of the excess amount of Rs.19,72,620/-.
Findings of Court:
The court found that the Supreme Court decision in Esjaypee Impex Pvt Ltd settled the position that an Authorised Officer under the SARFAESI Act is a Revenue Officer, rendering the division and full bench decisions holding otherwise no longer good law. Consequently, the sale certificate does not require mandatory registration, and the higher charges collected were illegal.
Issues: Whether a sale certificate issued by an Authorised Officer under the SARFAESI Act requires compulsory registration and whether the higher rates for stamp duty and registration fees are applicable.
Ratio Decidendi: The Supreme Court's interpretation of Section 17(2)(xii) and 89(4) of the Registration Act mandates that Authorised Officers are Revenue Officers; hence, the certificate is evidence of sale and not a conveyance requiring registration, thus capping duty and fees at the rates applicable to such certificates.
Result: Writ petition allowed.
For the Appellants/Petitioners: Sharath Chandran, Govind Chandrasekhar
For the Respondents: V.Yamunadevi
| Table of Content |
|---|
| 1. petitioner seeks refund of excess stamp duty paid on sarfaesi sale certificates. (Para 1 , 2 , 3) |
| 2. contentions regarding whether authorised officers are revenue officers and impact of recent supreme court rulings. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 3. judicial assessment of sarfaesi sale certificates as non-compulsorily registrable documents under the registration act. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25) |
| 4. determination of applicable stamp duty rates and registration fees for non-conveyance sale certificates. (Para 26 , 27 , 28 , 29) |
O R D E R
The petitioner seeks a Writ of Mandamus directing the respondents 1 and 2 to refund the excess stamp duty and registration charges amounting to RS.19,72,620/- which, according to the petitioner, has been collected in excess by the respondents while registering the sale certificates issued by the Assistant General Manager of State Bank of India in its capacity as the Authorised Officer under the SARFAESI Act under Rule 9(6) of the Security Interest (Enforcement) Rules 2002.
2. It is the claim of the petitioner that the petitioner emerged as a successful bidder in the e-auctions conducted by the authorised officer of the State Bank of India and was favoured with six Sale Certificates for various properties purchased by the petitioner in the said auction. While registering the documents, the respective Registering Officers have collected Stamp Duty at 7% and registration charges at 4% for each of the sale certificates. According to the petitioner, the collection of stamp duty under Article 23 of the Stamp Act, treating the sale certificate issued as a conveyance itself is erroneous and the respondents ought to have collected stamp duty at 5% under Article 18 of the Stamp Act. According to the petitioner, the sale certificate issued by the Authorised Officer under the SARFAESI Act would not amount to a conveyance as defined under Article 23 of the Stamp Act. It could at best be treated as a certificate of sale granted by a Revenue Officer which would fall within Article 18 of the Indian Stamp Act.
3. Upon discovery of the fact that excess amount has been collected, the petitioner made a representation on 30.07.2018 seeking refund of the excess stamp duty and registration charges paid to the tune of Rs.19,72,760/-. Separate memos of calculation explaining, as to how, excess stamp duty and registration charges has been collected were also sent along with a said representation. Since there was no response, the petitioner has come up with the above Writ Petition.
4. Though no counter has been filed by the respondents this being a strictly legal issue, the Writ Petition was heard on merits.
5. Mr.Sharath chandran, learned counsel appearing for the petitioner would submit that a Sale Certificate issued by an Officer authorised by a Bank under the provisions of the SARFAESI Act, would be akin to a sale by a Revenue Officer which would fall within Section 89(4) of the Registration Act. Therefore, according to the learned counsel, registration of such document is not mandatory in view of the provisions of Section 17(2)(xii) of the Registration Act. The learned counsel would, however, submit that if such certificate is presented for registration, the Stamp Duty payable would be only at the rate of 5% and not at the rate of 7%. It is also the further contention of the learned counsel that the Registration Charges collected at 4% of the value is also incorrect and the registration charges payable could only be 1% as per Article 1 of the table of fees prescribed by the State Government under Section 78 of the Registration Act. The learned counsel would further point out that the proviso which has been included by G.O.Ms.No.49 dated 08.06.2017 would not apply to a sale certificate issued by the authorised officer and therefore, collection of 4% as Registration charges is wholly unjust.
6. Contending that a Writ of Mandamus seeking refund of tax coll
