Allahabad High Court
M/S Krown Agro Foods Pvt. Ltd. vs State Of U.P. And 3 Ors. on 26 September, 2013
Author: Arun Tandon
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. 10 Civil Misc. Writ Petition No. 25957 of 2013 M/s Krown Agro Foods Private Limited ....... Petitioner Vs. State of U.P. & others ....... Respondents Hon. Arun Tandon, J.
Heard Sri Pradeep Kumar, Advocate on behalf of the petitioner and Sri V.K. Birla, Advocate on behalf of the UPSIDC.
Petitioner before this Court seeks quashing of the order passed by the Assistant Collector (Stamp), Ghaziabad dated 30.09.2010 as well as the order dated 21.01.2013 passed by the same authority and lastly the order dated 04.04.2013 passed by the Chief Controlling Revenue Authority U.P./ Member, Board of Revenue.
Facts in short, as borne out from the records of this petition, are as follows:
Plot No. C-241 Site No. 1 B.S. Road, Ghaziabad was leased out for the first time in favour of M/s Rajendra Rosin and Turpentine Industries on 11.07.1968 by U.P.S.I.D.C. For a period of 90 years. On a transfer application being made both by the first lessee and one M/s Unicorn Chemicals, the plot was transferred under a second lease deed dated 23.07.1994 in favour of M/s Unicorn Chemicals for the remaining term. It appears that thereafter the petitioner and M/s Unicorn Chemicals made another transfer application in respect of the same plot and after processing the transfer application as made by the parties, including the petitioner, third lease of the same plot was executed in favour of the petitioner on 23.01.2009. This lease deed was got registered on 23.01.2009 claiming benefit of exemption from stamp duty under Government Order dated 09.07.2008.
This Government Order dated 09th July, 2008 had no application in the case of the petitioner, inasmuch as lease of the plot No. C-241, Site No. 1 B.S. Road, Ghaziabad was not the first lease of the same plot in favour of the petitioner. In fact it was the third lease of the same plot by UPSIDC. For ready reference the Government Order dated 09.07.2008 is being quoted below:
"No. Ka.ni.5-3084/XI/2008-500(35)-2000 dated Lucknow, July 9, 2008.
In exercise of the powers under clause (a) of sub-section (1) of Section 9 of the Indian Stamp Act, 1899 (Act No. 2 of 1899) as amended from time to time in its applications to Uttar Pradesh read with Section 21 of the General clauses Act, 1897 (Act No. 10 of 1897) and in partial modification of Government notifications issued in this behalf, the Governor is pleased to remit from April 1, 2008 to March 31, 2009 the duty chargeable under sub-clause (vi) of clause (a), sub-clause (ii) of clause (b) and sub clause (c) of Article 35 of Schedule I-B of the said Act of 1899 on the instrument of Lease of immovable property belonging to all the Government departments and the organizations working under them, whether Government or Semi Government such as a Development Authority constituted under the Uttar Pradesh Urban Planning and Development Act, 1973 (President Act No. 11 of 1973) as re-enacted with modification by the Uttar Pradesh President's (re-enactment with modification) Act, 1974 (U.P. Act No. 30 of 1974) as Industrial Development Authority constituted under the Uttar Pradesh Industrial Area Development Act, 1976 (U.P. Act No. 6 of 1976), the Uttar Pradesh Awas Evam Vikas Parishad established under the Uttar Pradesh Awas Evam Vikas Parishad Adhiniyam, 1965 (U.P. Act No. 1 of 1966) and the Uttar Pradesh State Industrial Development Corporation registered under the Companies Act, 1956 (Act No. 1 of 1956) and the Uttar Pradesh Krishi Utpadan Mandi Parishad constituted under the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam 1964 (Act No. 25 of 1964), Suda, registered under the Registration of Socieites Act, 1960 (Act No. 21 of 1960) and a Zila Panchayat constituted under the Uttar Pradesh Kshetra Panchayat and Zila Panchayat Act, 1961 (Act No. 43 of 1961) and a local body constituted under the Uttar Pradesh Municipal Corporation Act, 1959 (U.P. Act No. 2 of 1959) or under the Uttar Pradesh Municipal Act 1916 (U.P. Act No. 2 of 1916) and the Industrial Estate, administered by the Directorate of Industries and under control of the Industrial Development Department, Government of Uttar Pradesh executed by themselves to transfer an immovable property first time in favour of a person to the extent of the amount of duty chargeable on the amount that exceeds the amount of consideration equal to the amount or value of the rent reserved for first ten years and the amount or value of such fine or premium or advance as set forth in the lease."
It is, therefore, established on record that the petitioner had falsely claimed exemption from the stamp duty under the Government Order dated 09.07.2008 despite being aware that it was not the first lease of the plot in their favour by UPSIDC.
On correct facts being brought to the notice of the Collector, proceedings under Section 47-A/33 of the Indian Stamp Act was initiated with service of notice by registered post fixing 04th November, 2009 as the date. A copy of the notice has been enclosed as Annexure-5 to the present petition. It discloses the address of the petitioner as 'M/s Drown Agro Foods Pvt. Ltd. through Deepak Bherwani, Registered Office H-48, Shivaji Park Road, Punjabi Bagh, Delhi-26. This is the verbatim address as one recorded in the lease deed. Reference- page 26 of the present petition. In the notice it was communicated that the petitioner has evaded the payment of correct stamp duty on the document, which was got executed on 23.07.2009 and therefore he may show cause as to why appropriate proceedings be not taken for realization of correct amount of stamp duty and for such further orders as may be required.
The petitioner did not respond to the notice and the registered notice also did not return undelivered. Therefore, the Assistant Commissioner (Stamp), Ghaziabad deeming the service upon the petitioner to be sufficient in view of rule 9 of the U.P. Stamp (Valuation of Property) Rules, 1997 proceeded to pass the order dated 30.09.2010.
The petitioner after more than two years of the said order made an application for recall of the same on the ground that it was ex parte and further filed his objections on the merits of the denial of benefits of the Government Order qua exemption from stamp duty.
It is worthwhile to reproduce paragraph 3 of the application made by the petitioner seeking recall of the order on the ground that registered notice of the proceedings had not been served upon him as it was sent at a wrong address. Reference page 56 of the petition. For ready reference paragraph 3 is being quoted below, as corrected on 21.01.2013, reads as follows:
Þ3- ;g fd izkFkhZ dks u rks mlds fuokl LFkku ij vkSj u gh mlds laLFkku ij Jheku th }kjk izsf"kr uksfVl mls izkIr gqvkA vU;Fkk izkFkhZ U;k;ky; esa mifLFkr gksdj vius cpko esa lk{; izLrqr djrk gSA izkFkhZ dks ,p&48 f'kokth ikdZ fnYyh ds irs ij uksfVl Jheku th }kjk izsf"kr fd;k x;k FkkA tcfd izkFkhZ dk irk ,p&78 f'kokth ikdZ iatkch ckx fnYyh gSA irk lgh u gksus ds dkj.k izkFkhZ dks uksfVl dh rkehy ugha gqbZ FkhAß It is, therefore, clear that the entire case of the petitioner for recall of the order was that the registered notice of the proceedings was sent at a wrong address. According to the petitioner his address was H-78, Shivaji Park, while notice was sent at H-48, Shivaji Park.
The statement so made by the petitioner in paragraph 3 again a false statement, inasmuch as in his lease deed the address disclosed by the petitioner was H-48, Shivaji Park. Reference-page 26 of the present petition. This Court has therefore no hesitation to record that the petitioner not only made a false statement in his application qua correct address, he also prayed recall of the order on false facts qua his correct address. Once it was established beyond doubt that the registered notice has been sent at the address disclosed in the lease deed and that it was not the case of the petitioner that such notice was not delivered upon him at the address mentioned. No case for recall of the order was therefore made out.
There is another reason for the petitioner to not to respond to the notice, which in the opinion of the Court is as follows:
On the date the deed was got registered i.e. 23.01.2009 there was only one Government Order dated 09th July, 2008 in existence, which provided for exemption from payment of stamp duty on first lease being executed in respect of a particular plot by various State corporations including UPSIDC. In fact the petitioner had taken benefit of this Government Order while making payment of stamp duty in terms of the exemption provided under the Government Order dated 09.07.2008.
Admittedly, this Government Order had no application in the case of the petitioner, as it was not the first lease of the plot in question and therefore the petitioner had no answer to the notice which was issued. Exemption was wrongly claimed and wrongly granted on the date the deed was executed/registered.
At the pain of repetition it is recorded that on that date there was no other Government Order providing for exemption from stamp duty.
The petitioner grew wiser in the year 2012 when the subsequent Government Order had been issued to be precise on 30.09.2010, which provided for same benefits being extended in the matter of leases executed between 2008 to 2009, even if it was not the first lease of the plot in question.
When this Government Order saw the light of the day, the petitioner made recall application and in his objections filed along with recall application the only case pleaded is that the petitioner is now entitled to the benefits of the Government Order dated 30.09.2010 and therefore the notice should be withdrawn.
It is, therefore, clear that what the petitioner sought to introduce in garb of the recall application an altogether new case than that was not available on the date the deed was got registered, which was the relevant date for determining the quantum of stamp duty payable.
The petitioner's recall application was rejected by the Assistant Commissioner (Stamp) vide order dated 21.01.2013 after recording that the service upon petitioner was sufficient and that no case for recall was made out. Against this order alone the petitioner filed his appeal, without challenging the order of the Collector dated 30.09.2010, under Section 56 of the Indian Stamp Act. In his appeal also similar plea was raised for challenging the service of the notice, namely it was sent at wrong address i.e. H-48, Shivaji Park Road, Punjabi Bagh, New Delhi. Reference- page 69 of the paper book.
The statement so made, as already noticed, is a false statement of fact. The address disclosed in the lease deed was H-48 and not H-78 as claimed by the petitioner. As a matter of fact on this short ground alone the appeal filed by the petitioner was liable to be dismissed. However, since the petitioner addressed the appellate authority on merits of demand also, the appellate authority has gone into the said aspect of the matter also under the order impugned.
This Court in the facts of the case finds absolutely no illegality in the order of the Assistant Commissioner while proceeding ex parte against the petitioner and while rejecting his application for recall of the ex parte order, inasmuch as the statement of fact made by the petitioner qua service being not sufficient was false.
So far as the merits of the order passed by the appellate authority is concerned, this Court may record that on the date the deed was got registered, which is the relevant date for determination of the stamp duty payable, no concession was available to the petitioner, inasmuch as the Government Order dated 09.07.2008 did not apply in his case.
Before this Court also it has been conceded that the petitioner cannot get benefit of the Government Order dated 09th July, 2008 as the deed in his favour by the UPSIDC was not the first deed. Therefore, it has to be held that the concession, which has been drawn by the petitioner on the strength of the Government Order dated 09th July, 2008 at the time of registration of his deed, was not so available to him and that he was liable to pay the stamp duty on the lease deed in terms of Article 35 of Schedule-I of the Indian Stamp Act without any concession.
So far as the claim of the petitioner based on the Government Order dated 30.09.2010 is concerned, this Court may record that although the Government Order refers to lease deeds, which were executed between 01st April, 2008 to 31st March, 2009, but the Government Order was hedged with conditions and it is only on satisfaction of there conditions that exemption from stamp duty could be claimed/provided. For ready reference Government Order dated 30.09.2010 is being quoted herein below:
".............
Notification Order No. 4590/XI-5-2010-500(35)-200 Lucknow : Dated 30 September, 2010 In exercise of the powers under Clause (a) of sub-section (1) of Section 9 of the Indian Stamp Act, 1899 (Act no.2 of 1899) as amended from time to time in its application to Uttar Pradesh, read with section 21 of the General Clauses Act, 1897 (Act no. 10 of 1897) and in partial modification of Government notification issued in this behalf, the Governor is pleased to extend the benefits of the Government Notification no. K.N.-5-2757/XI-2008-500 (35)/2000 dated July 9, 2008 also to those deeds of transfers which are not first time transfer and there is no existing construction on the property transferred by such deed or if any construction exists thereon the deed of transfer of the existing construction has been executed. This benefit of remittance in stamp duty shall be given to such deeds as are executed between April 1, 2008 and March 31, 2009, provided that the stamp duty already paid shall not be refunded. For the purposes of this notification the officer authorised for executing the transfer deed on behalf of the concerned Institution shall issue a certificate that there is no construction on the property and if any construction exists, the transfer deed of such construction has been executed."
The relevant conditions of the Government Order for claiming the benefit of the exemption from stamp duty is that if there are standing constructions on the date of second or third lease of the same plot, then there has to be a certificate by the authority concerned, in the facts of the case the Regional Manager, UPSIDC to the effect and a separate lease deed has been executed in respect of the constructions so standing or else there has to be a certificate from the competent authority that there were no construction standing on the date of second/third lease deed.
Admittedly, the petitioner had not pleaded any such fact on merit before the appellate authority nor any certificate/sale deed of constructions has failed to satisfy the said requirements of the Government Order dated 30.09.2010.
Before this Court it had been admitted by the petitioner that there were standing constructions over the plot subject matter of second lease in his favour on the date lease was executed and further that no transfer deed was got executed in respect of the constructions which were so standing.
However, petitioner made an attempt to explain that the constructions, which were standing on the plot, were in very poor condition for want of maintenance. Whatever may be the condition of the constructions a transfer/sale deed had necessarily to be registered qua the constructions in terms of the Government Order dated 30.09.2010 for claiming the benefits thereunder.
Even before this Court the petitioner has not brought on record any sale deed in respect of the constructions which were standing on the date of the lease in his favour.
This Court has no hesitation to hold that on merit also the petitioner has no case, inasmuch as neither the Government Order dated 09th July, 2008 applies in his case nor he satisfies the essential conditions of the Government Order dated 30.09.2010 for claiming the benefit thereunder. Counsel for the UPSIDC rightly further points out that the Government Order itself provides that no refund of the stamp duty already paid shall be made even if the Government Order dated 30th September, 2010 becomes applicable to the deed concerned and, therefore.
Counsel for the petitioner lastly referred to the letter of the UPSIDC mentioning the stamp duty. Such document is of no relevance so far as the Indian Stamp Act and payment of stamp duty thereunder is concerned. It is an internal correspondence between the petitioner and the UPSIDC which is not binding upon the revenue authorities.
Even otherwise the document relied upon by the petitioner is only a letter written by the petitioner himself and not a demand by the UPSIDC.
Counsel for the petitioner has placed reliance upon the judgement of this Court in the case of Smt. Asha Kapoor vs. Additional Collector and others; 2008 All. C.J. 768.
Having regard to the conduct of the petitioner as noticed above, this Court refuses to entertain the petition even in respect of the challenge as has been made to the amount of penalty imposed.
In view of the aforesaid, writ petition is dismissed. Interim order, if any, stands discharged.
26.09.2013 Pkb/25957-13