Andhra Pradesh High Court - Amravati
Karri Venkata Reddy, vs State Of Andhra Pradesh, on 21 August, 2020
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.7654 of 2020
ORDER:
This Writ Petition is filed seeking the following relief:
"....to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 3rd respondent in not refunding the said stamp duty fees paid by the petitioners for the sale deeds dated 08.07.2019 being presented for registration, pursuant to refusal of registration of sale deeds by the 3rd respondent on 14.08.2019, as illegal, irregular, irrational, violative of provisions of The Indian Stamp Act, 1899 and Rules framed thereunder and offends Article 14 and 21 of Constitution of India and consequently direct the 3rd respondent to refund the stamp duty paid by the petitioners for their said lands while presenting the sale deeds for registration and pass such other orders or order as this Hon'ble Court may deem fit and proper in the circumstances of the case."
This Court has heard Sri Sitaram Chaparla, learned counsel appearing for Sri KolluriArjun Chowdary, learned counsel for the petitioners and the learned Government Pleader for Registration and Stamps appearing for the respondents.
The Writ Petition is filed by six petitioners, who have presented certain documents for registration after paying the requisite stamp duty, fees etc. The petitioners have paid requisite stamp duty and registration charges, but the 1 documents were not registered because of reasons which were communicated to the petitioners by the Registration Department after due enquiry. The petitioners then made representations to the 3rd respondent with a request to refund the challan amount paid as stamp duty. The 3rdrespondent has refused the request and did not refund the stamp duty and other expenses that were paid by challan. Challenging the said action the present Writ Petition is filed.
Learned counsel appearing for the petitioners argues that refund of stamp duty is permissible under Chapter-V of the Indian Stamp Act, 1899 (in short "the Act") and more particularly under Sections 49 and 50 of the Act. He submits that Section 49 of the Act deals with the situations under which stamp duty can be refunded, while Section 50 of the Act describes the limitation period within which the refund can be claimed. The contention of the learned counsel for the petitioners is that the case of the petitioners falls under Section 49 (d)(2) of the Act. It is his contention that the sale deed is not used for the purpose originally intended and therefore learned counsel argues that it is a fit case in which the refund should be ordered. He also draws the attention of this Court to the affidavits furnished by the parties / petitioners seeking refund of the amounts paid through challan. Apart from this, learned counsel also relies 2 upon the judgment of the Hon'ble Supreme Court of India reported in Committee-GFIL v Libra Buildtech Private Limited and Othersand argues that in that case the Hon'ble Supreme Court of India ordered refund of the stamp duty paid and therefore learned counsel argues that this is a fit case in which mandamus must be granted as prayed for.
In reply to this, learned Government Pleader for Registration and Stamps states on the basis of written instructions which are uploaded that the 1st and 3rd respondents are not the "competent authorities" to refund the stamp duty. He submits that the stamp duty can only be refunded under Sections 49 to 54 of the Act and as per the procedure prescribed under G.O.Ms.No.222, Revenue (Registration.I) Department, dated 19.02.2005. Learned Government Pleader submits that as the petitioners did not follow the procedure prescribed, they are not entitled to an order as prayed for.
In view of the fact that there is no dispute about the essential facts, the Writ Petition itself is taken up for hearing with the consent of all the counsels.
After hearing the learned counsel for the petitioners and the learned Government Pleader, this Court notices that the allowance for refund of stamp duty is allowed only in certain circumstances. These circumstances are spelt out in Section 49 3
(a) to (d) of the Act. In addition, the Indian Stamp Rules, 1925 (in short "the Rules") as applicable in Andhra Pradesh and more particularly Rule 19 is also dealing with refund in Chapter-IV., As per this rule the Collector, before whom a claim for refund is made has the power to direct any person, who is seeking refund to make an oral deposition on oath or affirmation, or to file an affidavit setting out the ground for refund. He can also call for evidence of witnesses in support of the statements set forth.
Therefore, this Court notices that Section 49 read with Rule 19 details the procedure to be followed by a person claiming refund. The petitioners in this case have also partially adopted this procedure by giving affidavits seeking refund and setting forth their case. However, as rightly pointed out by the learned Government Pleader for Registration and Stamps on the basis of his written instructions respondents 1 to 3 in this Writ Petition are not competent to grant refund. The power is expressly vested in the Collector only as per Sec 49.
The judgment cited by the learned counsel for the petitioners turns on its own facts. In the case before the Hon'ble Supreme Court of India, the Supreme Court was selling certain property through a committee. Thereafter registrations were also affected. As the possession was not handed over the Hon'ble Supreme Court of India directed the committee to refund 4 the sale consideration with interest. Pursuant thereafter the matter was perused with the State Government for refund of the Stamp Duty paid. Applications were also filed before the Sub Divisional Magistrate. The Sub Divisional Magistrate rejected the request for refund. This was challenged in the Court. In the circumstances, the Hon'ble Supreme Court of India held that as the transaction failed due to reasons beyond the control of the parties and the court itself came to the conclusion that the sale deed should be cancelled along with the refund of the sale consideration itself, the order was passed. The Hon'ble Supreme Court of India held that action of a Court should not hurt in parity. In those circumstances, the Hon'ble Supreme Court of India directed the refund of the stamp duty paid on the grounds of equity. The facts are therefore clearly distinguishable.
The law is very well settled that if the statue prescribes a method, the said procedure is to be followed. All actions must be done in that method only and in no other method. Since the Stamp Act itself prescribes the procedure for making an application before the Collector, respondents 1 to 3 cannot be blamed for non-refund of the stamp duty paid through challan. Based on the written instructions filed by the learned Government Pleader for Registration and Stamps it is also clear that the G.O.Ms.No.222, dated 19.02.2005 also prescribes the 5 procedure for making an application and for refund of the stamp duty paid. The terms and conditions are also spelt out in the said G.O. This Court is therefore of the opinion that the petitioners are not entitled to any relief since the respondents 1 to 3 do not have the authority to order the refund.
The petitioners also partially invoked the procedure by following the requisite affidavits, but they filed the application before the wrong authority viz., the present respondent No.3. In the peculiar facts and circumstances of the case, as the limitation period is fixed for making an application, this Court is of the opinion that as the respondents also did not exercise their mind properly and stipulate in writing that they do not have the power to refund the stamp duty, the period spent by the petitioner in wrongly pursuing the remedy before the 3rd respondent should be excluded in computing the period/time. The petitioners are given an opportunity to file an appropriate application along with all the supporting documents etc., in terms of the Stamp Act and the Rules and Regulations framed thereunder, including the G.O.Ms.No.222, dated 19.02.2005, within two weeks of the date of receipt of this order before the concerned authority and seek refund. The authority is also directed to carefully examine the case and pass a speaking order 6 on merits. It is open to the respondents in that proceedings to raise all the defense that are available to them.
This entire procedure should be completed within a period of four months from the date of receipt of a copy of this Order.
With the above observations, this Writ Petition is disposed of. In the circumstances, there shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
__________________________ D.V.S.S.SOMAYAJULU, J Date:21.08.2020.
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