Bombay High Court
Sai Raydam Realtors Private Limited vs The State Of Maharashtra Thr. Inspector ... on 29 July, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
wp 8477-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8477 OF 2023
Sai Rydam Realtors Private Limited. ...Petitioner.
Versus
The State of Maharashtra and Others. ...Respondents.
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Mr. Arshad Shaikh, Senior Advocate along with Mr. Satya M. Shettigar for the
Petitioner.
Ms. S. D. Chipade, AGP for the Respondent-State.
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Coram : Sharmila U. Deshmukh, J.
Date : July 10, 2024. P. C. :
1. The petition takes exception to the order dated 13th September 2021 passed by the Chief Controlling Revenue Authority, Maharashtra State, Pune under Section 53A of the Maharashtra Stamp Act [for short "the Stamp Act"] in Revision No.128/18/386/2021 by which the adjudication order dated 24th July 2012 passed by the Respondent No. 3 in Adjudication Proceedings No.906 of 2012 in respect of the development agreement dated 27th July 2012 was held to suffer from short levy of stamp duty and additional stamp duty of Rs.66,50,794/- was directed to be paid.
FACTUAL MATRIX:
2. The Development Agreement dated 27th July 2012 executed by Patil-SR (ch) 1 of 10 wp 8477-23.doc the Petitioner with one Rakeshkumar Kuldeepsingh Wadhavan was lodged for adjudication with the Respondent No. 3 under Section 31 of the Stamp Act and vide order dated 24 th July 2012 the Respondent No. 3 assessed the stamp duty under Article 5(g-a) of the Stamp Act at Rs.1,08,25,500/- at the rate of 5% of the market value which was certified by the Respondent No 3 under Section 32(1)(b) of the Stamp Act.
3. On 4th December 2017, notice came to be issued by the Respondent No.3 stating that under the development agreement, the Petitioner had acquired the development rights of 25540.15 square meters FSI arising out of Survey No 259 and 260 having market value of Rs.34,95,890/- and the stamp duty leviable @ 5% of the market value is Rs.1,74,76,294/- and the objection as to the short levy of stamp duty Rs.66,50,794/- has been raised by the Auditor General. By the said notice, the Respondent No.3 called upon the Petitioner to attend the office of Respondent No.3 for hearing.
4. On 5th July 2021, by notice issued by Respondent No.1 under Section 53A of Stamp Act, the Petitioner was informed that proper stamp duty has not been paid on the development agreement and there is a short levy of stamp duty of Rs.66,50,794/- and called upon the Petitioner to attend the hearing on 13th July 2021 at 12.10 p.m.
5. The notice of 5th July 2021 was responded by the Petitioner by Patil-SR (ch) 2 of 10 wp 8477-23.doc filing their written say on 10th August 2021. The principal contention raised by the Petitioner was that the proceedings under Section 53A of the Stamp Act was initiated after the prescribed period of limitation.
On merits, it was contended that the Assistant Town Planner while assessing the development agreement for stamp duty had rightly granted rebate of 15% by taking into consideration free of FSI area, that out of the area which forms part of the development agreement as the petitioner was the owner of land admeasuring 6400 square meters and while calculating the FSI for the purpose of stamp duty the said area was required to be deducted which had been rightly deducted by the Respondent No. 3.
6. Respondent No.1 by order dated 13th September 2021 rejected contention of the Petitioner and relying on the report of the Assistant Director, Town Planning Valuation held that there is a short levy of stamp duty of Rs.66,50,794/-.
SUBMISSIONS:
7. Mr. Shaikh, learned Senior Advocate for the Petitioner would submit that Section 53A proceedings initiated on 5 th July 2021 were beyond the period of limitation of six years. He submits that the adjudication order is of the year 2012 and thus the Chief Controlling Revenue Authority [for short "the CCRA"] could not have examined the issue after period of 6 years. He would submit that in order to tide over Patil-SR (ch) 3 of 10 wp 8477-23.doc the issue of limitation the impugned judgment refers to notice of 4 th December 2017 issued by the Collector of Stamps calling upon the Petitioner to pay the short levy of stamp duty and would submit that the power under Section 53A of Stamp Act could not be exercised by the Collector of Stamps. On the merits of the matter, he would submit that in the affidavit-in-reply filed by the State, the stand is that while adjudicating the development agreement, the Respondent No 3 applied Annual Statement of Rates [for short "the ASR"] for the year 2011 instead of the ASR for the year 2012. Pointing out to the averment in the affidavit-in-reply and the impugned order at Page 35 of Petition, he submits that it is clear from these two documents that the ASR for the year 2011 was Rs.12,600 per square meter and the ASR for the year 2012 was also Rs.12,600 per square meter. He would further submit that as the Petitioner was owner of part of the land forming part of development agreement, for calculating the stamp duty, the said area under ownership was required to be deducted. He would further submit that the free of FSI areas under the relevant development control regulations have also been considered for levy of stamp duty. In support of his submissions, Mr. Shaikh relies upon the decision of Single Judge of this Court in Guruashish Construction Pvt. Ltd. v. The Collector of Stamp [in OS WP No. 842 of 2012 dtd. 17 th April 2012] and the decision of Division Bench of this Court in Patil-SR (ch) 4 of 10 wp 8477-23.doc Yashwantrao Chavan Shetkari Sahakari Soot Girni Maryadit v. the State of Maharashtra [in AS WP No. 4760 of 2000 dtd. 11 th January 2005.]
8. Per Contra Ms. Chipade, learned AGP would submit that the provisions of Section 53A of the Stamp Act permit the CCRA to examine the short levy of stamp duty within a period of 6 years and in the present case, before the expiry of period of 6 years, notice was issued by the Collector of Stamps on 4 th December 2017. She would further submit that in the audit inspection, the issue of short levy of stamp duty was raised and as such the CCRA has rightly passed the impugned judgment.
REASONS AND ANALYSIS:
9. Section 53A of the Stamp Act deals with the revision of Collector's decision made under Sections 32, 39 and 41 and reads thus:
"53A. Revision of Collector's decision under Sections 32, 39 and 41.
(1) Notwithstanding anything contained in sub-section (3) of section 32, sub-section (2) of section 39 and sub-
section (2) of section 41, when through mistake or otherwise any instrument is charged with less duty than leviable thereon, or is held not chargeable with duty, as the case may be, by the Collector, the Chief Controlling Revenue Authority may, within a period of six years from the date of certificate of the Collector under section 32, 39 or 41, as the case may be, require the concerned party to produce before him the instrument and, after giving a reasonable opportunity of being heard to the party, examine such instrument whether any duty is chargeable, or any duty is less levied, thereon and order the recovery Patil-SR (ch) 5 of 10 wp 8477-23.doc of the deficit duty, if any, from the concerned party. An endorsement shall thereafter be made on the instrument after payment of such deficit duty.
(2) On failure to produce the original instrument by the party, the Chief Controlling Revenue Authority shall proceed under this section on the basis of the true copy or an abstract of the instrument filed with the Collector under section 31 or sub-section (2) of section 37 and such copy or abstract shall be deemed to be the original instrument for the purposes of this section."
10. Plain reading of the above provision indicates that the time period within which the adjudication by the Collector of Stamps can be revisited by the CCRA is six years from date of the certificate under Section 32 of Stamp Act. The power of revision is conferred only upon the CCRA and the proceedings under Section 53A of the Stamp Act have to emanate from the office of CCRA. Section 53A of the Stamp Act does not empower the Collector of Stamps to revise its own order and hence the reliance placed on the notice of 4th December 2017 issued by the Collector of Stamps pursuant to the audit inspection to contend that the limitation of 6 years will be arrested in the present case is clearly misconceived. Perusal of said communication dated 4 th December 2017 discloses that the same does not refer to any provision under which the said notice has been issued. Further, the notice also does not indicate that the same has been issued at the instance of CCRA.
Patil-SR (ch) 6 of 10
wp 8477-23.doc
11. Upon a query by this Court as to whether pursuant to the hearings conducted by the Collector of Stamps any order was passed by the Collector, learned AGP would submit that there is no such order passed on the same. It is thus clear that even if there was some hearing held by the Collector of Stamps, the same has not culminated into any order being passed by the Collector of Stamps and no provision of Stamp Act has been brought to the notice of this Court which vests any power in the Collector of Stamps to examine or review its own order of adjudication under Section 32 of the Stamp Act. The same view has been taken by the learned Single Judge of this Court in Guruashish Construction Pvt Ltd (supra), holding that the Collector of Stamps has no power to review its own decision either suo moto or because of any objection raised by Auditor or otherwise. I am respectfully bound by the said decision of learned Single Judge.
12. The notice of 5th July 2021 does not refer to the notice of 4 th December 2017 and it only refers to the adjudication of the year 2012. That being so, and, Section 53A prescribing limitation of six years, initiation of proceedings by the CCRA on 5 th July 2021 is clearly beyond the period of 6 years prescribed by Section 53A of the Stamp Act. In Yashwantrao Chavan Shetkar Sahakari Soot Girni Maryadit (supra), the Division Bench of this Court has held that the powers under Section 53A of the Stamp Act cannot be invoked beyond the period prescribed.
Patil-SR (ch) 7 of 10
wp 8477-23.doc
The impugned order is thus legally unsustainable being passed beyond the period of six years from the date of the certificate of the Collector under Section 32 of Stamp Act.
13. That apart, even on the merits of the matter, Mr. Shaikh learned Senior Advocate has rightly pointed out errors in the adjudication. It is pleaded in the affidavit-in-reply that market value of the FSI was worked out by applying the ASR for the year 2011 for the land rate instead of ASR for the year 2012. As per the affidavit-in-reply the ASR for the year 2011 is Rs. 12,600/- per square meter and the order of CCRA which reproduces the report of the Assistant Director of Town Planning Valuation shows ASR for the year 2012 was Rs.12,600 per square meter. While accepting the audit inspection, the CCRA has failed to notice that the ASR for the year 2011 and the ASR for the year 2012 was the same i.e. Rs 12,600/- per square meter.
14. Dealing with the objection raised by the Petitioner as regards his ownership area forming part of the Development Agreement, the CCRA has held that the present Development Agreement was executed with Mr. Rakesh Kumar Wadhwan and there is no mention of Mr. Dhananjay Vithal Gavde and Prakash Kanaiyalal Gupta. It needs to be noted that development rights were granted to the Petitioner in respect of properties mentioned in Third Schedule to the Development Agreement which included Survey No.260, Hissa No.A/2 admeasuring Patil-SR (ch) 8 of 10 wp 8477-23.doc 6400 square meters. Although the development agreement included Survey No.260, Hissa No.A/2, Clause 32 of the Development Agreement clearly states that the Deed of Conveyance in respect of the said land was registered in favour of the Petitioner directly on 16 th May, 2012. The Conveyance being registered in favour of the Petitioner, the Petitioner became the owner of Survey No.260, Hissa No.A/2 and thus no stamp duty on the development rights of the said land could be levied. The CCRA has failed to notice the relevant clauses of the Agreement and has rejected the Petitioner's contention only for the reason that names of the owners are not mentioned in the development agreement. Clause 32 makes it evident that there was dispute in respect of the said land which was resolved by the Petitioner and in whose favour the land was conveyed directly. The stamp duty was leviable on the development rights granted in favour of Petitioner and the said land bearing Survey No.260, Hissa No.A/2 being owned by the Petitioner was required to be deducted while calculating the stamp duty. The affidavit-in-reply filed by the State Government does not deal with the averment as regards the disputed area of 6,400 square metres which has been specifically pleaded in the petition and as such the said submission stands uncontroverted.
15. The above discussion indicates that the impugned order directing payment of short levy of stamp duty arose out of proceedings initiated Patil-SR (ch) 9 of 10 wp 8477-23.doc beyond the prescribed limitation of six months and hence cannot be sustained. Apart from the same, even on merits, the impugned order is unsustainable.
CONCLUSION :
16. In the light of above, the judgment dated 13 th September 2021 is hereby quashed and set aside.
17. In view of the disposal of Writ Petition, nothing survives for consideration in the pending civil/interim applications and the same stand disposed of.
[Sharmila U. Deshmukh, J.] [Corrected pursuant to order dtd 29-7-2024.] Patil-SR (ch) 10 of 10 Signed by: Sachin R. Patil Designation: PS To Honourable Judge Date: 30/07/2024 21:11:35