Gujarat High Court
Urvashiben Dipakkumar Patel vs State Of Gujarat on 27 December, 2018
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/3980/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3980 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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URVASHIBEN DIPAKKUMAR PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR AJAY MEHTA FOR MS NIYATI V VAISHNAV(6168) for the
PETITIONER(s) No. 1,2,3,4,5
MR ROHAN YAGNIK, AGP(5) for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 27/12/2018
ORAL JUDGMENT
1. This petition is filed under Article 226 of the Constitution of India in which the petitioners have prayed that the order dated Page 1 of 9 C/SCA/3980/2018 JUDGMENT 19.6.2014 passed by the respondent no.3 and the order dated 15.12.2017 passed by the respondent no.2 be quashed and set aside.
2. Rule. Learned Assistant Government Pleader Mr.Rohan Yagnik waives service of notice for respondents.
3. Heard learned advocate Mr.Ajay Mehta assisted by learned advocate Ms.Niyati Vaishnav for the petitioners and learned Assistant Government Pleader Mr.Yagnik for the respondents.
4. It is submitted by learned advocate for the petitioners that plot no.110 admeasuring 4007.21 sq.mtrs. situated at Motipura GIDC, Himmatnagar was originally allotted by GIDC to JC Industries on 1.1.1988 on a lease for a period of 99 years. On 5.1.1998, the said JC Industries has transferred the said plot in favour of Kohinoor Industries after following due procedure and after obtaining necessary permission, by way of registered Deed of Assignment. It is further submitted that the aforesaid plot was transferred by Kohinoor Industries on 29.1.2007 in the name of Raj Rajeshwari Industries wherein the petitioners are the partners. The said transfer was by way of registered Deed of Assignment. GIDC has therefore transferred the said plot in the Page 2 of 9 C/SCA/3980/2018 JUDGMENT name of M/s Raj Rajeshwari Industries on 15.6.2007.
4.1 It is further submitted that the respondent-Deputy Collector issued notice dated 11.1.2010 to the petitioners as well as GIDC calling upon the petitioners to pay the stamp duty on the said registered document of Deed of Assignment and asking to remain present on 18.2.2010. The petitioners, therefore, appeared before the respondent-Deputy Collector through advocate and filed the reply on 12.8.2010. Learned advocate has referred to the copy of the said reply which is produced at page 42 of the compilation. It is submitted that the Deputy Collector, by way of the impugned order dated 19.6.2014, without appreciating the reply of the petitioners, directed the petitioners to pay Rs.6,12,194/- for deficit stamp duty and also imposed penalty of the like amount and thereby the petitioners were directed to pay total amount of Rs.12,24,388/-.
4.2 It is further submitted that the petitioners, therefore, preferred the appeal before the Chief Controlling Revenue Authority. However, the respondent no.2 passed an order on 15.12.2017 and thereby partly allowed the said appeal by quashing and setting aside the amount Page 3 of 9 C/SCA/3980/2018 JUDGMENT of penalty and thereby modified the order of the Deputy Collector to the effect that the petitioners are required to pay Rs.6,12,194/- towards deficit stamp duty and Rs.1,000/- by way of penalty.
4.3 Learned advocate Mr.Mehta assailed the impugned orders mainly on the ground that the respondent authorities have not properly considered the fact that there is mere change of name in the record of the GIDC after seeking permission from the said Corporation insofar as the allotment of plot is concerned and there is no change in the ownership of the said property because GIDC would always be of the ownership of the concerned plot. It is submitted that the respondent authorities have wrongly placed reliance upon the objection raised by the auditor which was absolutely on the basis of the assumption and presumption. It is submitted that the plot in question was transferred in the name of the petitioners by way of Deed of Assignment wherein there is a constructed area of 670.68 sq.mtrs., and therefore there was no reason for the respondent authorities to consider that the constructed area is of 1618 sq.mtrs. It is submitted that the respondent authorities have considered that as per the rules and regulations of GIDC, only 40% of the area is allowed to be Page 4 of 9 C/SCA/3980/2018 JUDGMENT constructed and therefore 40% of total plot area of 4007.21 sq.mtrs. would come to 1618 sq.mtrs., and therefore the auditor has wrongly arrived at a conclusion that constructed area is 1618 sq.mtrs. However, actual constructed area is only 670.68 sq.mtrs. Thus, the respondent authorities have not properly appreciated the aforesaid important aspects of the matter and thereby directed the petitioners to pay the deficit stamp duty.
4.4 Learned advocate Mr.Mehta would further submit that while passing the impugned orders, the respondents have also not considered the fact that the construction was made in the year 1989 and therefore the construction was made before 17 years and 7 months. However, while calculating the depreciation, the respondent authorities have considered that the construction was made before 9 years and therefore the depreciation for a period of 9 years was considered by the respondent authorities while calculating deficit stamp duty. Learned advocate Mr.Mehta therefore urged that both the impugned orders be quashed and set aside.
5. On the other hand, learned Assistant Government Pleader Mr.Yagnik has supported the reasoning recorded by the respondent authorities Page 5 of 9 C/SCA/3980/2018 JUDGMENT and contended that no error is committed by the respondent authorities while passing the impugned orders which requires any interference in the present petition. He, therefore, prayed that this Court may dismiss this petition.
5.1 It is further submitted that the petitioners have failed to point out before the respondent Deputy Collector that the construction was made on the plot in question in the year 1989 and therefore no fault can be found with the respondent authorities. It is further submitted that the plot in question was transferred in the name of the petitioners by Deed of Assignment in the year 2007 and therefore the respondent authorities have rightly considered the depreciation of the constructed property for a period of 9 years. Thus, no illegality is committed by the respondent-authorities. He, therefore, urged that this petition be dismissed.
6. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it transpires that the plot in question was allotted by GIDC to JC Industries on 1.1.1988 on the basis of the lease for a period of 99 years. Thereafter, JC Industries executed a registered Deed of Assignment in favour of Kohinoor Industries on Page 6 of 9 C/SCA/3980/2018 JUDGMENT 5.1.1998. Thereafter, said Kohinoor Industries has executed a registered Deed of Assignment in favour of the petitioners on 29.1.2007. Thereafter, the respondent no.3-Deputy Collector issued the show cause notice dated 22.1.2010 to the petitioners under Section 39(1)(b) of the Gujarat Stamp Act, 1958. It is stated in the said show cause notice that as per Article 57 of the Act of 1958, the petitioners are required to pay the deficit stamp duty on Deed of Assignment. Thus, the petitioners were asked to explain why the deficit stamp duty with penalty may not be charged from the petitioners. The petitioners, therefore, immediately submitted the reply dated 12.8.2010 to the respondent no.3 wherein it was specifically stated that the construction was made in plot in question in the year 1989 and that too constructed area is 670.68 sq.mtr. In the audit report, the concerned audit officer has not examined on the site about the actual constructed property but he has considered permissible built up area i.e. 1618 sq.mtrs. and thereby calculated the market value of the property in question. It is further specifically stated that though the petitioners have obtained the rights for the plot in question by way of Deed of Assignment from Kohinoor Industries in the year 2007, in fact, the construction is of the year 1989 which is more than 17 years and 7 Page 7 of 9 C/SCA/3980/2018 JUDGMENT months old. Therefor, the audit officer has also committed an error while considering the depreciation of the property for a period of 9 years only. Along with the said reply, the petitioners have also annexed sketch of the plot in question wherein it was specifically stated that actual built up area is 670.68 sq.mtrs.
7. Inspite of the aforesaid specific reply given by the petitioners, the respondent-Deputy Collector has passed the order on 19.6.2014 wherein the respondent no.3 has considered only audit objections raised by the concerned audit officer. Though it is specifically observed that GIDC has, in its letter dated 26.2.2010, specifically stated that the plan of construction was sanctioned on 1.7.1989 and receipt was also produced before the respondent no.3. In absence of completion certificate, it was presumed by the respondent no.3 that the audit objection raised by the auditor is correct. The respondent no.3 has also not properly considered that in the said letter, GIDC has specifically stated that construction must have been completed in the year 1989-90-91. Inspite of that, on the basis of the assumptions and presumptions, the respondent authority has accepted the audit objection whereby depreciation for a period of 9 years was only considered i.e. from the date of Deed of Page 8 of 9 C/SCA/3980/2018 JUDGMENT Assignment executed in favour of the petitioners in the year 2007. It appears that the respondents have not considered the fact that the construction was made in the year 1989 and therefore depreciation for a period of 17 years was required to be considered.
8. Further, the respondents have considered the market value on the basis of the permissible built up area of the plot in question and not on the basis of the actual built up area which is 670.68 sq.mtrs. Thus, while considering the the permissible built up of 1618 sq.mtrs., market value was considered. This Court is of the view that the respondents have not adopted the correct method and only placed reliance upon the audit objections. Thus, the impugned orders passed on the basis of such incorrect method are not proper and therefore are required to be quashed and set aside.
9. In view of the aforesaid discussion, this petition is allowed. The impugned orders are quashed and set aside. Rule is made absolute.
(VIPUL M. PANCHOLI, J) SRILATHA Page 9 of 9