Bombay High Court
Having Its Registered Office At } vs Chief Controlling Revenue } on 9 July, 2014
Author: R. M. Savant
Bench: R. M. Savant
WP.4036.2013.Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4036 OF 2013
CR Retail Malls (India) Limited }
Having its registered office at }
3rd floor, Oberoi Mall, }
Goregaon (East) }
Mumbai 400 051 } Petitioner
versus
1. Chief Controlling Revenue }
Authority, Maharashtra State, }
Pune, Ground floor, New }
Administrative Building,
ig }
Opposite Council Hall, }
Pune 411 001 }
}
2. Collector of Stamps, Mumbai }
3rd floor, Old Custom House, }
Mumbai 400 001 }
}
3. State of Maharashtra } Respondents
Dr. Virendra Tulzapurkar - Senior
Advocate with Mr. Amit Jamsandekar,
Mr. Ajit Anekar and Mr. Yogendra
Singh i/b. Auric Legal for the
Petitioner.
Mr. S. K. Shinde - Government
Pleader with Mr. A. S. Bapat AGP for
Respondent Nos. 1 to 3.
CORAM :- R. M. SAVANT, J.
RESERVED ON :- JUNE 20, 2014
PRONOUNCED ON :- JULY 9 , 2014
JUDGMENT :-
Rule with the consent of the learned Counsel for the parties made returnable forthwith and heard.
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2) The Writ Jurisdiction of this Court under Articles 226 and 227 of the Constitution of India is invoked against the order dated 21 st March, 2013 passed by the Respondent No. 1 herein i.e. the Chief Controlling Revenue Authority, Maharashtra State, Pune, by which order, the Petitioner was directed to pay an amount of Rs. 91,66,800/-
(Rupees ninety one lacs sixty six thousand eight hundred only) as the deficit stamp duty in respect of the document being the Indenture of Sub-Lease (for short the "Indenture") which was got registered by the Petitioner.
3) The facts giving rise to the above Petition can be stated thus:
The Petitioner is engaged in the business of operating multi-
screen multiplex for exhibition of cinemas and operates the seven screen multiplex cinema unit at Block No. 43 and 43-A, Phoenix Mills Compound, 462, Senapati Bapat Marg, bearing CTS No. 1/142, 71 and 109, Lower Parel, Mumbai. Insofar as the said CTS No. 1/142, 71 and 109 are concerned, the Municipal Corporation of Greater Mumbai (for short "MCGM") was the original owner of the lands comprises in the said CTS. The MCGM had leased the same to the Phoenix Mills Limited vide an Indenture of Lease dated 17 th August, 2005 for a period of 999 Page 2 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc years. The Phoenix Mills Limited and one PVR Limited, which is a group company of the Petitioner, entered into an agreement on 22 nd July, 2005, by which, the Phoenix Mills Limited agreed to construct seven screen multiplex having sitting capacity of 200 and the said PVR Limited had agreed to take the same on long lease, which would be by way of Sub-Lease, as the Phoenix Mills Limited itself was the original Lessee from the MCGM. The said agreement dated 22 nd July, 2005 was assigned by the said PVR Limited on 27th February, 2007 in favour of the Petitioner. Pursuant to such assignment, the PVR Limited and the Petitioner entered into an Indenture of Sub-Lease which was registered with the Joint Sub-Registrar, Mumbai City No. 2 at Sr. No. 1757 of 2007 on the same date.
4) It appears that prior to the execution and registration of the Indenture, the Petitioner had applied to the Respondent No. 2 under Section 32 of the Bombay Stamp Act (for short "the said Act") vide adjudication case No. ADJ/427/2007 for adjudication of the proper stamp duty payable on the Indenture. The draft of the Indenture was also submitted to the respondent No. 2. It is the case of the Petitioner that the Respondent No. 2, after holding due inquiry, had certified that the proper stamp duty payable on the Indenture was Rs.2,34,37,500/-.
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5) On the ground that the said document was short levied for stamp duty, a notice was issued by the office of the Respondent No. 1 calling upon the Petitioner to attend the hearing of Revision Case being No. 42 of 2009, which was initiated in exercise of the powers under section 53A of the said Act. The cause for initiating the said action was the Audit report of the Accountant General, Nagpur, which, in its local inspection of the office of the Sub-Registrar, Mumbai No. 2 had taken objection of the valuation of the Indenture and consequently the stamp duty paid on the same. The office of the Accountant General referred to the annual statement of rates of properties in Mumbai City in the year 2007 i.e. the Ready Reckoner rates. As per the office of the Accountant General, since the property which was sub-leased to the Petitioner by the Indenture is situated in the Phoenix Mills Compound, the commercial rate of valuation Zone 12/91G ought to be applied to the Indenture for the purpose of calculating the stamp duty payable thereon and if so applied, there was a short levy of stamp duty. The Petitioner, it seems, objected to the said revised calculation on the ground that the property falls in Value Zone 12/91 and therefore the stamp duty leviable on the document in question was properly adjudicated. The objection raised by the Petitioner was rejected by the Respondent No. 1 on 10th August, 2010 and the Petitioner was directed to deposit the amount of Rs.90,68,925/-.
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6) The Petitioner had challenged the said order dated 10 th August, 2010 by way of Writ Petition No. 9010 of 2010. This Court was pleased to set aside the said order dated 10 th August, 2010 and directed the Respondent No. 1 to pass a fresh order after hearing the Petitioner.
It is pursuant thereto that the Petitioner was heard. Detailed submissions were made on behalf of the Petitioner and reliance was also placed on Judgments. The Respondent No. 1 as by the impugned order dated 21st March, 2013 rejected the objections of the Petitioner in respect of the recovery of the deficit stamp duty and directed the Petitioner to pay the amount of Rs. 91,66,800/-, which was the deficit stamp duty payable by the Petitioner. As indicated above, it is the said order dated 21st March, 2013 passed by the Respondent No. 1 which is taken exception to by way of the above Petition.
7) At this stage, reference to the "Ready Reckoner" is required to be made. The State Government, for the purposes of levying stamp duty publishes the Annual Statement of Rates, popularly known as the "Ready Reckoner", wherein the market value of the properties in different areas are mentioned. The said Ready Reckoner is published every year by the State Government and which is in the nature of guidelines for the Stamp Authorities to assess the market value of the property covered by a particular document and thereby arrive at the stamp duty that would be payable thereon. In the instant case, the Page 5 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc document i.e. the Indenture has been registered in the year 2007. The value zone and the rates mentioned in the said year are therefore relevant.
8) It is an undisputed position that the Petitioner's property is situated in CTS Nos. 1/142, 71 and 109. In the Ready Reckoner of the year 2007, the said CTS numbers are placed in value zone 12/91.
However, insofar as the "Phoenix Mills Compound" is concerned, it finds a place in value zone 12/91G. In the said value zone, it has been mentioned to the following effect:
"all the properties of Phoenix Mill and CTS Nos. 140 and 141"
The said Ready Reckoner has been corrected by the State Government by the letter dated 10 th January, 2012 addressed to the Joint Director, Town Planning Valuation, Pune, by which the entries in value zone 12/19G are corrected so as to include CTS Nos. 140, 141, 1/142 part, 71 part and 109 part. The said letter, therefore, is by way of a corrigendum correcting the entries in the said two value zones i.e. 12/91 and 12/91G.
9) Heard the learned Counsel appearing for the parties i.e. the learned Senior Counsel Shri. Virendra Tulzapurkar appearing for the Petitioner and the learned Government Pleader Shri. S. K. Shinde appearing for the Respondent Nos. 1 to 3.
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10) The learned Senior Counsel Shri. Tulzapurkar appearing for the Petitioner would contend that the Respondent No. 1 had erred in going by the description of the property in the Ready Reckoner rather than the specific CTS numbers in which the property is situated. The learned Senior Counsel would contend that the adjudicating authority had, by considering the CTS numbers, had correctly applied the Value Zone 12/91 and had accordingly adjudicated the stamp duty payable by the Petitioner. The learned Senior Counsel would further contend that the Respondent No. 1 is enjoined by the said act to carry out the exercise of re-adjudication of the stamp duty payable, however, without carrying out such exercise, the Respondent No. 1, by merely going by the description of the property, has held that the rates in Value Zone 12/91G would apply rather then the rates in Value Zone 12/91. The learned Senior Counsel would contend that even within one area there can be properties which have different values, as the values of the properties would depend upon various functions like road frontage etc. the learned Senior Counsel sought to draw the Court's attention to the Ready Reckoner for the said purpose. The learned Senior Counsel would contend that the Respondent No. 1 was not entitled to take into consideration the correction which has been carried out in the Ready Reckoner, insofar as values in Value Zone 12/91 and 12/91G are concerned, which correction has come in the year 2012, whereas, the Page 7 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc Petitioner's document has been adjudicated in the year 2007 and therefore, the Respondents are not entitled to apply the correction made in the said Value Zones retrospectively. The learned Senior Counsel lastly contended that if two interpretations are possible, the interpretation which is in favour of the Assessee should be adopted. In support of the said contention, the learned Senior Counsel relied upon the Judgment of the Apex Court in the case of The Central India Spinning and Weaving and Manufacturing Co. Ltd., The Empress Mills, Nagpur vs. The Municipal Committee, Wardha1.
11) Per contra, the learned Government Pleader Shri. S. K. Shinde contended that in the instant case the power exercised is one under Section 53A of the said Act, which provision contains the circumstances in which the said power can be exercised. The learned Government Pleader would contend that the Ready Reckoner is only by way of guidelines for adjudicating the stamp duty. The learned Government Pleader would contend that the powers of the adjudicating authority cannot be fettered by the rates mentioned in the Ready Reckoner. The learned Government would contend that in the instant case, it is an undisputed position that the multiplexes of the Petitioner are situated within the Phoenix Mills Compound and since the Phoenix Mills Compound is treated as a separate entity by placing it in Value 1 AIR 1958 (SC) 341 (V 45 C 55) Page 8 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc Zone 12/91G, it is the said Value Zone which is to apply and not Value Zone 12/91, wherein the CTS numbers of the lands on which the property of the Petitioner is situated. The learned Government Pleader would contend that the authorities were therefore entitled to correct the said mistake and re-adjudicate the document in question i.e. the Indenture by invoking Section 53A of the said Act. The learned Government Pleader would contend that the fact that the rates in the Ready Reckoner are guidelines is fortified by the Judgments of the Division Benches of this Court. The learned Government Pleader drew the Courts attention to the Judgments in the case of Prasadnagar Co-
operative vs. State of Maharashtra and Ors. 2, Solapur Promoters and Builders Association Society and Anr. vs. State of Maharashtra and Ors. 3 and Ashok Bansilal Mutha and Anr. vs. State of Maharashtra and Ors.4.
12) The learned Government Pleader would contend that the adjudicating authority is not bound by the rates mentioned in the Ready Reckoner and can, while exercising powers under the said Act, apply the rates which it thinks are applicable to the property in question for the purpose of the payment of stamp duty covering the said property.
The learned Government Pleader would contend that though the correction has been made in the Ready Reckoner insofar as the Value 2 2005(3) Bom. CR 478 3 2005(5) Bom. CR 626 4 2012 (6) Bom. CR 118 Page 9 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc Zone 12/91 and 12/92G are concerned in the year 2012, the same is of no consequence, as the said correction has not been relied upon, but what has been relied upon is the fact that the property of the Petitioner is situated in the Phoenix Mills Compound, which is in Value Zone 12/91G. The learned Government Pleader would therefore contend that the instant case is a case where a wrong Value Zone was applied to the Petitioner, resulting in loss of revenue to the State and therefore, this Court, in the exercise of Writ Jurisdiction, would not interfere with the order passed by the Respondent No. 1.
13) I have heard the learned Counsel appearing for the parties, I have considered the rival contentions. At the outset, it would be necessary to refer to the statutory provisions which lay down legal framework within which the authorities act. The same are as follows:
"31. Adjudication as to proper stamps (1) When an instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, by one of the parties to the instrument and such person applies to have the opinion of that officer as to the duty (if any) with which or the Article of Schedule I under which it is chargeable and pay a fee of one hundred rupees the Collector shall determine the duty (if any) with which or the Article of Schedule I under which in his judgment, the instrument is chargeable.
(2) For this purpose the Collector may require to be furnished with a true copy or an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of Page 10 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc the duty with which is chargeable, are fully and truly set forth therein and may refuse to proceed upon any such application until such true copy or abstract and evidence have been furnished accordingly:
Provided that, -
(a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding, except in any inquiry as to the duty with which the instrument to which it relates is chargeable; and
(b) every person by whom any such evidence is furnished shall, on payment of the full duty with which the instrument to which it relates is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid.(3)
Where the collector acting under sub-sections (1) and (2) is not the Collector of the District and if he has reasons to believe that the market value of the property, which is the subject matter of the instrument, received by him for adjudication, has not been truly set forth therein, he shall, for the purpose of assessing the stamp duty, determine the true market value of such property, as laid down in the Bombay Stamp (Determination of True Market Value of Property) Rules, 1995.
(4) When an instrument is brought to the Collector for adjudication, -
(i) within one month of the execution or first execution of such instrument in the State; or
(ii) if, such instrument is executed or first executed, out of the State, within three months from the date of first receipt of such instrument in this State, the person liable to pay the stamp duty under section 30 shall pay the same within sixty days from the date of service of the notice of demand in respect of the stamp duty adjudicated by the Collector. If such person fails to pay the stamp duty so demanded within the said period, he shall be liable to pay a penalty at the rate of two per cent of the deficient portion of the stamp duty, for every month or part thereof, from the date of execution of such instrument, or as the case may be, date of the first receipt of such instrument in the State:
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Hence under the above Section, the Collector is charged with the duty to determine the stamp duty chargeable on the instrument which has been brought to him for the adjudication of the stamp duty that is payable. The Collector has to be provided with all the facts and circumstances affecting the chargeability of the instrument with duty or the amount of the duty with which it is chargeable.
"32. Certificate by Collector.(1)
When an instrument brought to the Collector under section 31, is in his opinion, one of a description chargeable with duty, and -
(a) the Collector determines that it is already fully stamped, or
(b) the duty determined by the Collector under section 31, or such sum as with the duty already paid in respect of the instrument, is equal to the duty, so determined has been paid, the Collector shall certify by endorsement on such instrument that the full duty standing the relevant Article of Schedule I and the amount which which it is chargeable has been paid.
(2) When such instrument is, in his opinion, not chargeable with duty, the Collector shall certify in manner aforesaid that such instrument is not so chargeable."
Under this Section, the Collector issues a certificate that stamp duty determined in respect of an instrument has been paid. The said certification is done by the Collector by making an endorsement on such instrument.
Page 12 of 26J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc "32A. Instrument of conveyance, etc. undervalued how to be dealt with.
(1) Every instrument of conveyance, exchange, gift, certificate of sale, deed of partition or power of attorney to sell immovable property when given for consideration, deed of settlement or transfer of lease by way of assignment, presented for registration under the provisions of Registration Act, 1908, shall be accompanied by a true copy thereof:
Provided that, in case of such instruments executed on or after the 4th July, 1980, to the date of commencement of the Bombay Stamp (Amendment) Act, 1985, an extract of the instrument to be taken from the registration record shall be deemed to be the true copy accompanying the instrument, presented for registration for the purposes of sub-section (1).(2)
Any registering officer receiving such instrument for registration has reason to believe, on the basis of the information available with him in this behalf, that the market value of immovable property which is the subject matter of such instrument has not been truly set forth therein, he shall, immediately after receiving of such instrument, refer it to the Collector for determination of the true market value of such property:
Provided that, in respect of the instrument presented for registration before the date of commencement of the Maharashtra Tax Laws (Levy, Second Amendment and Validation) Act, 1996 where, in the opinion of the registering officer, the true market value of the immovable property, which is the subject matter of the said instrument, has not been determined by the Collector of the District, it shall be lawful for the registering officer to verify the true market value of such property as per the annual statement of rates of immovable property determined under the Bombay Stamp (Determination of True Market Value of Property) Rules, 1995 and issue notice to the person, who is liable to pay stamp duty under section 30 calling upon such person to pay the deficit amount of stamp duty and penalty at the rate of 2 per cent of the deficient portion of the stamp duty, for every month or part thereof from the date of execution of such instrument:
Provided further that, on the receipt of such notice, if the person liable to pay deficit amount of stamp duty and the penalty, pays within one month from the date of receipt of such notice, the deficient amount of stamp duty and also pays the Page 13 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc fixed penalty of rupees two hundred fifty, he shall not be liable to make payment of penalty at the rate of 2 per cent., as provided in the first proviso; and the reference already made to the Collector of the District shall abate:
Provided also that, in no case, the amount of the penalty to be charged under the proviso shall exceed double the deficit portion of the stamp duty.
(3) If any person referred to in section 33, before whom any such instrument is produced or comes in the performance of his functions, has reason to believe that the market value of the immovable property which is the subject matter of such instrument has not been truly set forth therein, he may, after performing his function in respect of such instrument, refer the instrument along with a true copy of such instrument to the Collector of the district for determination of the true market value of such property and the proper duty payable on the instrument.
Provided that if the person, before whom any such instrument is produced or comes in performance of his functions, is an officer appointed as the Collector under clause
(f) of section 2, and he has reason to believe that the market value of the immovable property which is the subject matter of such instrument has not been truly set-forth therein, he shall, for the purpose of assessing the stamp duty, determine the true market value of such property in the manner laid down in the Bombay Stamp (Determination of True Market Value of Property) Rules, 1995;
(4) On receipt of the instrument or the true copy of the instrument as the case may be, under subsection (2) or (3), the Collector of the District shall, after giving the parties concerned a reasonable opportunity of being heard and in accordance with the rules made by the State Government in that behalf, determine the true market value of the immovable property which is the subject matter of the instrument and the proper duty payable thereon. Upon such determination, the Collector of the District shall require the party liable to pay the duty, to make the payment of the amount required to make up the difference between the amount of duty determined under this sub-section and the amount of duty already paid by him and shall also require such party to pay in addition, a penalty of 2 per cent for every month or part thereof from the date of execution of the instrument on differential amount of stamp duty; and on such payment, the instrument received under sub-
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Provided that, no such party shall be required to pay any amount to make up the difference or to pay any penalty under this sub-section, if the difference between the amount of the market value as set forth in the instrument and the market value as determined by the Collector of the District does not exceed ten per cent, of the market value determined by the Collector of the District:
Provided further that, in respect of references pending with the Collector of the, District, before the commencement of the Maharashtra Tax Laws (Levy Second Amendment and Validation) Act, 1996, for determination of true market value of the immovable property which is the subject matter of the instrument, the person liable to pay the stamp duty under section 30 shall not be liable to pay penalty exceeding rupees 250 if, he makes the payment of the stamp duty and penalty within one month from the date of receipt of the order of the Collector of the District, by him.
Provided also that, in no case, the amount of the penalty shall exceed double the deficient portion of the stamp duty.
(5) The Collector of the District, may, suo moto or on receipt of information from any source, within ten years from the date of registration of any instrument referred to in sub-
section (1), (not being the instrument upon which an endorsement has been made under section 32 or the instrument or the instruments in respect of which the proper duty has been determined by him under sub-section (4) or an instrument executed before the 4th July 1980), call for the true copy or an abstract of the instrument from the registering officer and examine it for the purpose of satisfying himself as to the correctness of the market value of the immovable property which is the subject matter. of such instrument and the duty payable thereon; and if, after such examination, he has reason to believe that the market value of such property has not been truly and fully setforth in the instrument he shall proceed as provided in sub-section (4).
(6) It shall be lawful for the Chief Controlling Revenue Authority or the Collector of the District to transfer to any other Officer, any reference received by the Collector of the District under this section, for disposal in accordance with the Bombay Stamp (Determination of True Market Value of Property) Rules, 1995."
Page 15 of 26J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc This Section provides for that registering officer receiving an instrument for registration has reason to believe on the basis of the information available with him in that behalf that the value of the immovable property which is the subject matter of such instrument has not been truly set-forth therein, he shall immediately, after receiving such instrument, refer it to the Collector for determination of the true market value of such property.
"53A. Revision of Collector's decision under sections 32, 39 and 41ig (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 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."
This provision provides for the revision of the Collector's decision taken under Sections 32, 39 and 41 of the said Act. Under the said provision, the Collector or the Chief Controlling Revenue Authority may, Page 16 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc 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, may requires the concerned authority 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 orders a recovery of the deficit duty if any from the concerned party. The said provision can be invoked when through mistake or otherwise any instrument is charged with less duty than leviable thereon or is held not chargeable with duty.
14) A reading of the aforesaid provisions therefore disclose that the Collector and the Chief Controlling Authority have powers vested in them under the said Act in respect of the cases of short levy of stamp duty which has a direct co-relation to the undervaluing of the property.
In the instant case, it is under Section 53A that the Controlling Authority has exercised powers in view of the audit objection which was raised by the office of the Accountant General, Nagpur. As indicated above, the audit objection was on account of the fact that the Petitioner's Indenture was assessed by applying Value Zone 12/91 instead of 12/91G and therefore, according to the audit objection, there was short levy of stamp duty to the extent of Rs. 89,68,177/-. In view of the audit objection, the proceedings under Section 53A of the Act Page 17 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc were initiated against the Petitioner by the Chief Controlling Authority.
The Chief Controlling Authority, as can be seen from the impugned order, has also obtained the reports of the Joint Director of Town Planning, Mumbai who in turn had called for a report from the Deputy Director of Town Planning Mumbai, as regards the location of the Petitioner's property which is covered by the said Indenture. The said reports have been adverted to in the impugned order passed by the Chief Controlling Authority. However, the valuation as set out by the Deputy Director of Town Planning, Mumbai has been corrected by the office of the Joint Director, Town Planning, Pune by taking into consideration the value of the parking and the area for DG sets and hence, there is a marginal difference in the extent of the short levy of the stamp duty, computed by the office of the Joint Director, Town Planning, Pune and the Deputy Director, Town Planning, Mumbai. The Chief Controlling Authority has accordingly, after giving an opportunity to the Petitioner, has adjudicated upon the matter in respect of the short levy of the stamp duty in respect of the Indenture of the Petitioner.
Hence, insofar as the procedure that is required to be followed is concerned, the Chief Controlling Authority, as can be seen had called for the report of the Joint Director, Town Planning, Pune, Maharashtra and it is after getting the said report has adjudicated upon the said matter.
Hence no fault can be found with the said proceedings.
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15) It would be apposite to reproduce the unamended value zone 12/91 and value zone 12/91G and the rates mentioned therein :-
Rate of Land+Building in Rs. Per Zone Rate of Sq. Mt.
- Dev. Shop/ Description Sub Land Reside- Office Comm-
Industr-
Zone F.S.I. 1 ntial ercial
ial
... ...... ..... ..... ..... ..... .....
12 Land: On North Pandurang 23300 57500 63300 69000 57500
91 Budhkar Marg from Gokhale Road
to Balsheth Madurkar Marg upto
Central Railway Line, on East
Western railway line. On West Dr.
E. Moses road and Dr. G. M.
Bhosle Marg. All the traingular
portion
T.P.S./F.P.No. 1, 2, 3, 4, 5, 6, 7, 8,
9, 12, 14
C.T.S. No. 1/1, 1/2, ..........1/142
........70 to 79 ..........96 to 109 .....
12 Land: All the properties of 45000 100000 110000 120000 100000
91G Phoenix Mill.
C.T.S. No. 140, 141
16) Before proceeding further, it would be relevant to consider
the location of the Petitioner's property as covered by the said Indenture. For the said purpose, it would be relevant to refer to Schedule I and Schedule II of the said Indenture, which, for the sake of ready reference, are reproduced herein under:
"Schedule I The entire plot of land bearing CTS No. 1/142, 71 and 109 admeasuring approximately 20,091 sq. yds. Equivalent to 16,796.07 sq. meters or thereabouts, situate at the Phoenix Mills Compound, 462, Senapati Bapat Marg, Lower Parel, Mumbai - 400 013, with the structures standing thereon Page 19 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc Schedule 2 All the premises being part of the structure being the Multiplex Cinema Unit situated in Block 43 & Block 43A admeasuring approximately 6,060.77 sq. mtrs (buildup area) equivalent to 64,345 sq. ft (buildup area) and the space measuring 780 sq ft (buildup area) for installation of the DG sets of the Sub-Lease on the ground floor of Block 47, in front of SAI Service Station, below the ramp leading to podium level parking or thereabouts situate at the Phoenix Mills Compound, 462, Senapati Bapat Marg, Lower Parel, Mumbai - 400 013." (emphasis supplied) A reading of the aforesaid Schedules therefore indicates that the Petitioner's property is undisputedly situated in the Phoenix Mills Compound though it bears CTS No. 1/142, 71 and 109.
17) It would also be apposite to refer to the Judgments cited by the learned Government Pleader in support of his contentions that the rates mentioned in the Ready Reckoner are guidelines to the registering authority for the imposition of stamp duty. The Judgment of the Division Bench of this Court in the case of Solapur Promoters and Builders Association (supra) was concerning the development charges which are to be levied under Chapter VI-A of the Maharashtra Regional Town Planning Act. The imposition of charges at flat rate regardless of location of land was challenged on the ground that it was violative of Article 14 of the Constitution of India. In support of the said contention, reliance was sought to be placed on the rates mentioned in the annual statement of rates published by the State Government i.e. Page 20 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc the Ready Reckoner rates. The Division Bench held that the reliance placed by the Petitioner in the said Petition on the Ready Reckoner which is device for the purpose of imposition of stamp duty was misplaced as a Ready Reckoner provides guidelines to the registering authorities for the imposition of stamp duty which is depending upon the market value of the property. Now coming to the Judgment of the Division Bench of this Court in the case of Prasadnagar Co-operative (supra) the quashing and setting aside of the Ready Reckoner rates and the amendment thereto in respect of the Petitioner's layout situated at Jaitala, Nagpur was sought. The Division Bench, whilst allowing the Petition, directed the Respondents to treat the Ready Reckoner as guidelines and as a declaration of prima facie market value.
Hence, by the Judgments (supra), this Court has treated the Ready Reckoner as merely guidelines for the purposes of imposition of the stamp duty, as the same depends on the market value of the property.
18) In the instant case, as indicated above, it is an undisputed fact that the Petitioner's property which is the subject matter of the Indenture is situated in the "Phoenix Mills Compound" and bears CTS Nos.1/142, 71 and 109. The question is whether the said instrument is to be charged on the basis of Value Zone 12/91 or Value Zone 12/91G Page 21 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc as contained in the Ready Reckoner. In the said context, it is required to be noted that by the Value Zone 12/91G all the properties of Phoenix Mills are covered meaning thereby that the Phoenix Mills Compound is treated as an entity by itself considering the commercial value of the properties situated therein and is therefore placed in Value Zone 12/91G which is to be considered whilst adjudicating the stamp duty that is payable in respect of the instrument which is in respect of a property situated therein. Hence, though the CTS numbers of the Petitioner's property are placed in Value Zone 12/91, which attracts a lesser stamp duty, the Petitioner would be liable to pay stamp duty as per Value Zone 12/91G as the Phoenix Mills Compound is treated as an entity by itself and therefore, though a part of the property in the said Phoenix Mills Compound is placed in Value Zone 12/91, the same is obviously a mistake which has been corrected by issuance of the letter dated 10th January, 2012 of the Deputy Director of Town Planning, Mumbai.
19) Insofar as the adjudication by the Respondent No. 1 is concerned, the fact is that the rates mentioned in the Ready Reckoner are guidelines to the registering authorities for the adjudication of the stamp duty, the Respondent No. 1 or for that matter even the Collector of Stamps would therefore not be bound by the rates mentioned in the Page 22 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc Ready Reckoner and even if there were not to be any correction as in the instant case, by which correction, the CTS numbers of the Petitioner are now included in Value Zone 12/91G, the Respondent No. 1 would still be entitled to rely upon the said Value Zone 12/91G for the purposes of calculating the stamp duty payable on the said Indenture as the Petitioner's property is undisputedly situated in the Phoenix Mills Compound. Hence, there is no question of the amendment to Value Zone 12/91G being applied retrospectively. It is required to be noted that the powers of the authorities under the Stamp Act are wide enough and cannot be fettered by the rates mentioned in the Ready Reckoner.
An indication of the same can be had by having a look at Section 32A of the said Act, where, the Collector is to follow the required procedure in the event a document is referred to him on the ground that there is a short levy of stamp duty. In my view therefore, it is not possible to accept the contention of the learned Senior Counsel appearing for the Petitioner that since the CTS numbers of the Petitioner's property appear in Value Zone 12/91, as per the rates applicable to the said Value Zone that the Petitioner is liable to pay the stamp duty and since the stamp duty has been paid by the Petitioner on the said basis, the Respondents cannot revise the same by calculating the stamp duty on the basis of Value Zone 12/91G.
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20) As regards the contention of the learned Senior Counsel that in respect of the properties on the same road, different rates are mentioned, which implies that the rates have been fixed having regard to the locational advantage etc. and therefore, it is possible that even in the Phoenix Mills Compound, there can be properties to which lower rates are fixed. In my view, though the submission at the first blush, having regard to certain entries in the Ready Reckoner, appears to be attractive, the same does not hold any water. It is an undisputed fact that the Phoenix Mills Compound is a commercial hub in the City of Mumbai and it is for the said reason that the authorities have, while preparing the annual statement of rates, treated it as an entity by itself.
Hence, there is no question of any locational advantage etc within the Phoenix Mills Compound, as the intention of the authorities is very clear that the Phoenix Mills Compound being a commercial hub all the properties therein are to be covered by Value Zone 12/91G. Hence, it is not possible to accept the contention of the learned Senior Counsel that within the same property itself, there can be properties having different values.
The instant case is not a case where two interpretations are possible. The instant case is a case where the Phoenix Mills Compound is treated as an entity by itself and therefore, in a way treated separately Page 24 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc than the other properties and covered by Value Zone 12/91G. If that be so, all the properties within the Phoenix Mills Compound are liable to be similarly treated and the Petitioner cannot be singled out on the ground that the Petitioner's CTS numbers find a place in Value Zone 12/91, which attracts lower rates.
21) Insofar as the impugned order is concerned, it is required to be noted that the Respondent No. 1 had, prior to carrying out the adjudication under Section 53A of the said Act, had called for a report from the Joint Director, Town Planning, Pune, who, in turn, had called for a report from the Deputy Director of Town Planning, Mumbai as regards the location and the market value of the property. It is after obtaining the said report that the exercise under Section 53A of the said Act was carried out by the Respondent No. 1. As indicated above, the Respondent No. 1 was within his rights as a Controlling Appellate Authority to rely upon Value Zone 12/91G of the Ready Reckoner to adjudicate upon the market value of the property and resultantly, the deficient stamp duty payable by the Petitioner. In my view, the procedure that has been followed by the Respondent No. 1 cannot be said to be in violation of the statutory provisions of the said Act.
22) The impugned order therefore does not suffer from any illegality or infirmity for this Court to interfere in its Writ Jurisdiction Page 25 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 ::: WP.4036.2013.Judgment.doc under Articles 226 and 227 of the Constitution of India. The Writ Petition is accordingly dismissed. Rule discharged with parties to bear their respective costs.
(R. M. SAVANT, J.) At this stage, the learned Counsel appearing for the Petitioner Shri. Ajit Anekar seeks continuation of the ad-interim relief, which is operating in the above Petition for a period of eight weeks, to enable the Petitioner to approach the Apex Court. The said ad-interim relief is accordingly continued for a period of eight weeks from date.
(R. M. SAVANT, J.) Page 26 of 26 J.V.Salunke,PA ::: Downloaded on - 09/07/2014 23:50:43 :::