Bombay High Court
M/S. Lalit Constructions vs The Chief Revenue Controlling Autho. ... on 30 September, 2024
2024:BHC-AS:38707
ppn 1/6 14.wp-11761.16(j).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
Digitallysigned
signed
by
byPRACHI
PRACHI
PRACHI
PRACHI PRANESH
PRANESH
PRANESH
PRANESH
NANDIWADEKAR
NANDIWADEKAR
NANDIWADEKAR
NANDIWADEKAR WRIT PETITION NO.11761 OF 2016
Date:
Date:2024.10.01
2024.10.01
14:40:58
15:13:28+0530
+0530
M/s. Lalit Constructions )
a Registered Partnership Firm, )
Having its office at Poddar House, )
Patil Colony, Lane No.3, College Road, )
Nashik. )
Through its Partner )
Mr. Nemichand Lalitprasad Poddar, )
Age 64 years, Occu. Business, )
R/at. Nashik. ) ....Petitioner
(Orig. Appellant)
V/s.
1. Chief Revenue Controlling Authority and)
Inspector General of Registration and )
Controller of Stamps, Maharashtra State, )
Pune )
Ground Floor, New Administrative Bldg., )
Pune - 411 001. )
2. The Joint District Registrar-1 and )
Collector of Stamps, Nashik. ) ...Respondents
----
Mr. Girish S. Godbole, Senior Advocate i/by Mr. Parag M. Tilak for the
petitioner.
Smt. M. S. Bane, AGP for the respondent nos.1 & 2-State.
----
::: Uploaded on - 01/10/2024 ::: Downloaded on - 02/10/2024 00:58:06 :::
ppn 2/6 14.wp-11761.16(j).doc
CORAM : JITENDRA JAIN, J.
DATE : 30th SEPTEMBER 2024
JUDGMENT :-
1 This petition is filed challenging an appeal order dated 22 nd September 2014 passed under Section 53 (1A) of the Maharashtra Stamp Act, 1958 passed by respondent no.1-The Chief Revenue Controlling Authority, Maharashtra State, Pune.
2 Petitioner was the highest bidder of the property to be developed which belongs to a Trust. The Charity Commissioner granted permission for development of the said property to petitioner and Development Agreement dated 31 st December 2002 and Power of Attorney dated 17th March 2003 was executed before the Sub-Registrar, Nashik. Petitioner paid relevant stamp duty of Rs.2,31,680/- being 1% market value for the purpose of Development Agreement and Rs.100/- for the purpose of Power of Attorney.
3 The said property was developed by petitioner and the Trust executed individual sale deeds in favour of various purchasers wherein petitioner acted as a confirming party as developer of the property. 4 On 8th August 2007, Audit Team of respondents raised an objection with respect to deficit stamp duty paid by petitioner on Power of Attorney and worked out deficit of Rs.16,21,760/-. The said amount was demanded from petitioner and a charge was created on the property for ::: Uploaded on - 01/10/2024 ::: Downloaded on - 02/10/2024 00:58:06 ::: ppn 3/6 14.wp-11761.16(j).doc recovery of the same. Petitioner, therefore, paid a sum of Rs.16,21,760/- under protest and requested that the issue of correct stamp duty to be paid on Power of Attorney be adjudicated upon. Since there was no adjudication order deciding the issue of correct stamp duty on Power of Attorney, petitioner made an application for refund of the amount paid under protest which came to be rejected on 29th October 2007 on the ground that there is no provision for refund of stamp duty paid under protest. Said intimation was challenged before this Court in Writ Petition No.1695 of 2008 in which order came to be passed whereby petitioner was directed to file an appeal against the said intimation with a direction to the Appellate Authority to dispose of the same on its own merits.
5 Pursuant to the said order, an appeal came to be filed by petitioner and the Appellate order dated 22 nd September 2014 came to be passed by respondent no.1 which is the subject matter of challenge in the present petition.
6 Shri Godbole, learned Senior Counsel appearing for petitioner submitted that there is no order by the original authority passed under the Stamp Act deciding the issue on correct nature of the document-Power of Attorney and stamp duty thereon. It is his submission that unless there is an adjudication order, the State cannot retain the amount paid "under protest" by petitioner. It is his submission that merely because deficit stamp ::: Uploaded on - 01/10/2024 ::: Downloaded on - 02/10/2024 00:58:06 ::: ppn 4/6 14.wp-11761.16(j).doc duty is paid under protest it does not mean that petitioner has accepted the liability. It is further submitted that provision of Section 50 of the Stamp Act is also not applicable to the payment made under protest. He, therefore, prayed that the impugned order be quashed and the matter be remanded to respondent no.2 for adjudicating the issue of correct stamp duty to be paid on the Power of Attorney executed and if it is found that the payment made "under protest" is in excess of actual liability then respondents be directed to refund the balance.
7 Per contra, Ms. Bane, learned AGP appearing for the State submitted that communication dated 29th October 2007 can be treated as an order and therefore, the contention of petitioner is not justified that there is no adjudication order. Learned counsel, therefore, prayed for dismissal of the petition.
8 I have heard learned Senior Counsel for petitioner and learned counsel for respondents.
9 In my view, the communication dated 29 th October 2007 cannot be considered as an adjudication order under Section 32 A (4) r.w. (5) of the Maharashtra Stamp Act. There is no adjudication on the nature of the document and determination of correct stamp duty as mandated by the said provision. It is also important to note that petitioner on 19 th September 2007 has filed detailed submissions enclosing all the documents ::: Uploaded on - 01/10/2024 ::: Downloaded on - 02/10/2024 00:58:06 ::: ppn 5/6 14.wp-11761.16(j).doc to contend that the proceedings initiated under the Stamp Act be dropped and amount paid under protest be refunded. In my view, in the communication dated 29th October 2007, there is no reference to the said submission and, therefore, there is no consideration of the same by respondent no.2. It is settled position of law that merely because payment is made "under protest" it would not amount to acceptance of liability by a person making the payment. Therefore, the contention of respondents that payment once made "under protest" cannot be refunded is not correct. However, the said payment "under protest" would be subject to adjudication and determination of final liability to be determined by the original authority and if petitioner is found to be liable then the payment made "under protest" can be adjusted by the said authority. The provision of Section 50 of the Stamp Act cannot be made applicable to the payment made "under protest". The Appellate Authority in its order dated 22 nd September 2014 has made certain observations on merits of the case but the same could not be found in the communication dated 29 th October 2007 issued by the original authority. The original authority ought to have passed speaking order and failure to do so cannot be cured in the appellate order. In my view, therefore, in the interest of justice, the impugned order dated 22nd September 2014 and the communication dated 29th October 2007 is required to be quashed and set aside.
::: Uploaded on - 01/10/2024 ::: Downloaded on - 02/10/2024 00:58:06 :::
ppn 6/6 14.wp-11761.16(j).doc
10 I therefore, pass the following order :-
ORDER
(i) The communication dated 29th October 2007 and the Appellate order
dated 22nd September 2014 are hereby quashed and set aside.
(ii) Respondent no.2 is directed to adjudicate the issue of stamp duty on Power of Attorney within a period of eight weeks from the date of uploading the present order after giving an opportunity of hearing to petitioner.
(iii) Respondent no.2 is directed to pass a speaking order dealing with all the submissions and contentions of petitioner.
13 Rule is made absolute in aforesaid terms. Petition disposed.
(JITENDRA JAIN, J.) ::: Uploaded on - 01/10/2024 ::: Downloaded on - 02/10/2024 00:58:06 :::