Calcutta High Court
Sudipta Traders Private Limited & Anr vs State Of West Bengal & Ors on 18 February, 2020
Author: Sanjib Banerjee
Bench: Sanjib Banerjee, Kausik Chanda
OD-7
APO 226 of 2017
In
WP 57 of 2009
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SUDIPTA TRADERS PRIVATE LIMITED & ANR.
Versus
STATE OF WEST BENGAL & ORS.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
And The Hon'ble JUSTICE KAUSIK CHANDA Date : February 18, 2020.
Appearance Mr. Samit Talukdar, Sr. Adv.
Mr. Soumyajit Dasgupta, Adv.
Mr. P. K. Jhunjhunwala, Adv.
Mr. Meghnad Dutta, Adv.
Mr. S. Rudra, Adv.
...Appellants Mr. Abhratosh Majumdar, Sr. Adv.
Mr. Ayan Banerjee, Adv.
...State Mr. Indrajeet Dasgupta, Adv.
...U.O.I. The Court :- In the end, there appears to have been much ado about nothing. The appellants here purchased an immovable property pursuant to an auction conducted by the Recovery Officer attached to a Debts Recovery Tribunal under the Recovery of Debts due to Banks and Financial Institutions Act, 1993. Section 29 of the Act of 1993 makes the provisions of the Second and Third Schedules to the Income Tax Act, 1961 and the provisions of the Income Tax (Certificate Proceedings) Rules, 1962 applicable as far as possible to matters pertaining to a sale conducted under the Act of 2 1993. Accordingly, by virtue of Clauses 54, 63 and the like of the Second Schedule to the Act of 1961, the Recovery Officer attains the status of a Revenue Officer when conducting a sale to realise a debt due as defined in the Act of 1993. Clause 65 of the Second Schedule to the Act of 1961 provides for the issuance of a sale certificate by the Tax Recovery Officer bearing the date on which the sale became absolute. Since such provision would apply mutatis mutandis to a sale conducted by a Recovery Officer under the Act of 1993, a sale certificate is required to be issued to the purchaser of any immovable property in a sale conducted by the Recovery Officer.
Section 89 of the Registration Act, 1908 deals with certain orders, certificates and instructions. Sub-section (4) of such provision mandates as follows:
"(4) Every Revenue Officer granting a certificate of sale to the purchaser of immovable property sold by public auction shall send a copy of the certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situate, and such officer shall file the copy in his Book No.1.".
It, therefore, logically follows that when a Recovery Officer under the Act of 1993 makes over a sale certificate to a purchaser upon the conclusion of a sale of an immovable property for the recovery of a debt due under such Act to a bank or financial institution, such certificate enjoys the same status as that of a sale certificate issued by a Revenue Officer. A fortiori, a sale certificate obtained by a purchaser of an immovable property at a sale conducted by a Recovery Officer under the Act of 1993 for the recovery of a debt due under such Act to a bank or financial institution becomes the veritable deed of conveyance which may be registered under Section 89(4) of the Act of 1908. A separate deed of conveyance becomes wholly unnecessary. 3
In terms of the Stamp Act, 1899, as applicable in this State, a certificate of sale is governed by Article 18 in Schedule-1A to the Act. The appropriate stamp duty is the same as in respect of a conveyance under Article 23 of the same Schedule except that the basis is the purchase money and not the market value of the property as is the yardstick in respect of a conveyance under Article 23. Thus, as of now, the stamp duty payable is 6 per cent of the purchase money when the purchase is at a public auction conducted by a Recovery Officer for the sale of an immovable property to realise any debt due to a bank or financial institution as defined in the Act of 1993.
It appears that the appellants in this case may have barked up a wrong tree by seeking to have a deed of conveyance executed and the deed of conveyance registered. Since it was not necessary for the appellant to have any deed of conveyance prepared for the purpose of perfecting the sale that has been already made in their favour, the appellants submit that they will take steps to ensure that a copy of the sale certificate is forwarded to the appropriate registering authority for its registration. As far as the stamp duty is concerned, the stamp duty payable on the purchase money was deposited contemporaneously in or about 2007-08. However, the mistake committed by the appellants was that they submitted a deed of conveyance for its registration with the sale certificate appended thereto. Since such procedure is found to be unnecessary, the concerned registering authority will return the deed of conveyance unregistered but will enter the certificate of sale or the facts pertaining thereto in Book No.1 in accordance with Section 89(4) of the Act of 1908.
As a consequence, the judgment and order impugned dated March 17, 2017 stand set aside.
Since the collector had proceeded to assess the quantum of stamp duty payable based on the proposed registration of the deed of conveyance, an order was passed on 4 December 10, 2019 in South 24-Paraganas RC No.93/ARA-1/17. Such order of December 10, 2019 is redundant and the same is quashed.
It is recorded that the State has fairly accepted the position that in respect of any sale of an immovable property conducted by a Recovery Officer under the Act of 1993 to realise any debt due to a bank or financial institution in terms of such Act of 1993, it is the sale certificate only which is required to be registered. The State has also accepted that, in such a scenario, the stamp duty payable is in accordance with Article 18 of Schedule-1A to the Act of 1899 as applicable in this State. There is no room for any Revenue Officer of the State to question the quantum of the purchase money or to perceive the purchase money to be inadequate, provided the registration sought is of a sale certificate. However, if a purchaser insists on a deed of conveyance to be registered and not merely the sale certificate, the provision of Article 23 of Schedule-1A to the Act of 1899 as applicable in this State will apply. Since Article 23 of the said Schedule refers to market price, the State's revenue authorities may not be obliged to accept the purchase money as the market price, though they must have adequate reasons to believe that the consideration ought to have been higher.
APO No.226 of 2017 is disposed of on the above basis.
There will be no order as to costs.
(SANJIB BANERJEE, J.) (KAUSIK CHANDA, J.) sg/kc.