Gujarat High Court
Maheshbhai Arjanbhai Velani vs Chief Revenue Controller Authority And on 30 January, 2023
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6693/2017 ORDER DATED: 30/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6693 of 2017
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MAHESHBHAI ARJANBHAI VELANI & 2 other(s)
Versus
CHIEF REVENUE CONTROLLER AUTHORITY AND & 1 other(s)
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Appearance:
MR CHIRAG B PATEL(3679) for the Petitioner(s) No. 1,2,3
MR.ROHAN SHAH, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 30/01/2023
ORAL ORDER
1. Heard Mr.Chirag Patel learned advocate for the petitioner and Mr.Rohan Shah learned AGP for the respondent nos.1 and 2.
2. Challenge in this petition under Article 226 of the Constitution of India is to the order dated 10.02.2017 passed by the respondent no.1 in proceedings under the provisions of Section 53A of the Stamp Act.
3. Facts in brief would indicate that the petitioner Page 1 of 9 Downloaded on : Tue Jan 31 20:48:03 IST 2023 C/SCA/6693/2017 ORDER DATED: 30/01/2023 entered into an agreement to sell for land bearing survey no.686 situated at Village:Tarsali, District:Vadodara. The agreement to sell was dated 08.12.2012. It was agreed that for the land in question, an aggregate amount of Rs.65,66,000/- and Rs.10,00,000/- was to be paid to the owner on the date of the agreement to sell i.e. 08.03.2010. It was agreed that the amounts would be paid in installments of the remaining sum of Rs.55,66,000/-. Two cheques of equal installments of Rs.18,55,333/- dated 08.06.2011 and 08.12.2011 were issued and the last remaining cheque of the same amount was issued on the date on which sale deed was executed i.e. 08.03.2012. Having found that a deficit amount of stamp duty was levied as on the date of the sale deed's execution. The market value was of Rs.3,000/- per square meter. The authorities taking the date of execution of the Page 2 of 9 Downloaded on : Tue Jan 31 20:48:03 IST 2023 C/SCA/6693/2017 ORDER DATED: 30/01/2023 sale deed as the relevant date imposed an additional stamp duty to the tune of Rs.5,55,443/-.
4. Mr.Chirag Patel learned counsel for the petitioner would submit that since the agreement to sell was executed in the year 2010 and the application was made for assessment, the market value of the lands as on the year 2012 cannot be taken into consideration and the order of the original authority as so confirmed by the Appellate Authority with an enhanced stamp duty was illegal.
5. In support of his submission, Mr.Chirag Patel would rely on a judgement of the Full Bench of this Court in case of Gorva Vibhag Co- operative Housing Societies Association v. State of Gujarat reported in 1992 (1) GLR Page 3 of 9 Downloaded on : Tue Jan 31 20:48:03 IST 2023 C/SCA/6693/2017 ORDER DATED: 30/01/2023
654.
6. Reading para 33 of the decision, Mr.Patel would submit that the factor that needs to be taken into consideration as per the market value is the one when an agreement to sell is executed. If the agreement to sell is found to be a genuine one, then the Collector is bound to take into consideration the facts so mentioned in the agreement to sell. That factor for the genuineness of the agreement to sell would govern the consideration and would be a relevant factor bearing the market value.
7. Mr.Rohan Shah learned AGP for the State would submit that since the sale deed was executed on 08.03.2012 in light of the provisions of the Stamp Act, especially the definition of 'market value under Section 2(na)' and 'chargeable under Page 4 of 9 Downloaded on : Tue Jan 31 20:48:03 IST 2023 C/SCA/6693/2017 ORDER DATED: 30/01/2023 Section 2(d)' of the Act, when read with the provisions of Section 17 of the Registration Act would indicate that the Jantri rate which was operational from 18.04.2011 would be relevant and therefore in seeking enhancement of stamp duty in light of the then jantri rate of Rs.3,000/- per square meter was just and proper. 7.1 Reliance was placed by Mr.Shah on the decision of the Supreme Court in the case of State of Rajasthan and Others v. Khandaka Jain Jewellers reported in (2007) 14 SCC 339.
8. Mr.Patel would distinguish the judgement of the Supreme Court in case of Khandaka Jain Jewellers (supra) to submit that in the case before the Supreme Court, there was a pendency of Civil Suit and therefore in the facts of that case, the relevant date taken into consideration Page 5 of 9 Downloaded on : Tue Jan 31 20:48:03 IST 2023 C/SCA/6693/2017 ORDER DATED: 30/01/2023 was that of the sale deed.
9. Facts discussed herein above would indicate that undisputedly the agreement to sell was executed in the year 2012, though as submitted by the learned counsel for the petitioner, the sale consideration was spread over for a period of two years in equal installments. The fact remains that ultimately a final deed was executed only on 08.03.2012. The relevant date whether the date for the purposes of ascertaining the market value is the date when the agreement to sell is executed or that of the sale deed in question has been considered by the Supreme Court in the decision in case of Khandaka Jain Jewellers (supra). After setting out the relevant provisions of the Stamp Act and the Registration Act, the Supreme Court interpreted the term 'execution' in paras 19 onwards. The Supreme Court held as Page 6 of 9 Downloaded on : Tue Jan 31 20:48:03 IST 2023 C/SCA/6693/2017 ORDER DATED: 30/01/2023 under:
"19. It may be mentioned that there is a difference between an agreement to sell and a sale. Stamp duty on a sale has to be assessed on the market value of the property at the time of the sale, and not at the time of the prior agreement to sell, nor at the time of filing of the suit. This is evident from section 17 of the Act. It is true that as per Section 3, the instrument is to be registered on the basis of the valuation disclosed therein. But Section 47-A of the Rajasthan (Amendment) Stamp Duty Act contemplates that in case it is found that properties are under valued then it is open for the Collector (Stamps) to assess the correct market value. Therefore, in the present case when the registering authority found that valuation of the property was not correct as mentioned in the instrument, it sent the document to the Collector for ascertaining the correct market value of the property.
20. The expression "execution" read with Section 17 leaves no manner of doubt that the current valuation is to be seen when the instrument is sought to be registered. The Stamp Act is in the nature of a taxing statute, and a taxing statute is not dependant on any contingency. Since the word "execution" read with Section 17 clearly says that the instrument has to be seen at the time when it is sought to be registered and in that if it is found that the instrument has been undervalued then it is Page 7 of 9 Downloaded on : Tue Jan 31 20:48:03 IST 2023 C/SCA/6693/2017 ORDER DATED: 30/01/2023 open for the registering authority to enquire into its correct market value. The learned single Judge as well as the Division Bench in the present case had taken into consideration that the agreement to sell was entered into but it was not executed. Therefore, the incumbent had to file a suit for seeking a decree for execution of the agreement and that took a long time. Therefore, the Courts below concluded that the valuation which was in the instrument should be taken into account. In our opinion this is not a correct approach. Even the valuation at the time of the decree is also not relevant. What is relevant in fact is the actual valuation of the property at the time of the sale. The crucial expression used in Section 17 is "at the time of execution".
Therefore, the market value of the instrument has to be seen at the time of the execution of the sale deed, and not at the time when agreement to sell was entered into. An agreement to sell is not a sale. An agreement to sell becomes a sale after both the parties signed the sale deed. A taxing statute is not contingent on the inconvenience of the parties. It is needless to emphasize that a taxing statute has to be construed strictly and considerations of hardship or equity have no role to play in its construction. VISCOUNT SIMON quoted with approval a passage from ROWLATT, J. expressing the principle in the following words:
"In a taxing Act one has to look merely at what is clearly said. There is no room for Page 8 of 9 Downloaded on : Tue Jan 31 20:48:03 IST 2023 C/SCA/6693/2017 ORDER DATED: 30/01/2023 any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used."
10. What is evident therefore is that, for the purposes of Stamp Act, the term 'execution' has been interpreted to mean a term used when for the purposes of market value, the instrument that is to be seen is the time of execution of the sale deed and not that of agreement to sell.
11. For the aforesaid reasons, there is no merit in the petition and therefore the same stands dismissed.
(BIREN VAISHNAV, J) ANKIT SHAH Page 9 of 9 Downloaded on : Tue Jan 31 20:48:03 IST 2023