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Showing contexts for: section 40 of stamp act in Ansal Housing & Construction Ltd. vs State Of U.P. And 2 Ors. on 19 September, 2014Matching Fragments
1. Heard Sri Ashish Mishra, learned counsel for the petitioner and Sri Nimai Das, assisted by Sri B.P. Kachhwah, learned Standing Counsel for the respondents.
2. Briefly stated facts of the present case are that on 22.11.1996 a memorandum of understanding was executed between the petitioner and the U.P.S.I.D.C. Ltd. in respect of 15761 square meter of land in village Gulistanpur, district Gautam Budh Nagar. Subsequently, on the basis of the report, a stamp case no. 419 of 2004-05 was registered and an order dated 25.11.2004 was passed by ADM (F/R) Gautam Budh Nagar creating the demand of stamp duty of Rs. 34,67,438/- equal amount of penalty was imposed and interest was also demanded under Section 33 read with Section 40 (1) (b) of the Indian Stamp Act, 1899 (hereinafter to the "Act"). The petitioner preferred revision/ appeal before the Chief Controlling Revenue Authority U.P., The petitioner submitted proof of deposit of Rs. 34,67,438/ being one- third amount for the purpose of grant of interim relief in terms of the provision of Section 56 (1A) of the Act. The appeal/revision was allowed vide order dated 07th January, 2009 and the matter was remanded to the Collector, Gautam Budh Nagar to pass an order afresh in accordance with law. In compliance of the remand order, the Collector Gautam Budh Nagar passed an order dated 2nd April, 2011 in stamp case no. 94 of 2010-11 under Section 47A/33 of the Act and did not create any demand holding that the notice itself is barred by limitation. Since there was no demand against the petitioner and as such the petitioner prayed for refund of the amount of pre deposit of Rs. 34,67,438/- alongwith interest. When the amount was not refunded, the petitioner filed a Writ-C No. 52504 of 2013, which was disposed of by this Court vide order dated 24th September, 2013 directing the respondent concerned to decide the representation of the petitioner in accordance with law by a reasoned and speaking order preferably within a period of four weeks. Thereafter, the petitioner filed a representation dated 04th October, 2013 praying for refund of. Rs. 34,67,438/- alongwith interest at the market rate w.e.f the date of deposit i.e. 15.12.2005. On 29th May, 2014, ADM (F/R) Gautam Budh Nagar, passed an order sanctioning the refund of Rs. 34,67,438/- pursuant to the sanction granted by the District Magistrate vide dated 23rd October, 2013. He,however,has not considered the claim of interest of the petitioner. Since no interest was paid on the amount of deposit and as such the petitioner has filed the present writ petition.
10. Thus, it is wholly beyond dispute that the amount deposited by the petitioner was unauthorisedly retained and enjoyed by the respondents till the date of refund i.e. 29th May, 2014. Now, the question which arises for consideration is "whether as per provisions of the Act and the law settled by Hon'ble Supreme Court in various judgements as well as principles of restitution, the petitioner is entitled for interest and if he is entitled for interest then from which date" ?
11. To answer the above framed question, certain provisions of the Act needs to be examined, particularly Section 40, 47A, 45 and 56 of The Indian stamp Act, 1899, which are reproduced below:
(2) If any Collector, acting under section 31, section 40 or section 41, feels doubt as to the amount of duty with which any instrument is chargeable, he may draw up a statement of the case, and refer it, with his own opinion thereon, for the decision of the Chief Controlling Revenue-authority.
(3) Such authority shall consider the case and a copy of its decision to the Collector who shall proceed to assess and charge the duty (if any) in conformity with such decision."
12. Section 3 of the Act provides for instruments chargeable with duty. Section 40(I) provides for Collector's power to stamp an instrument impounded under Section 33, or an instrument sent to him under Section 38 (2) not being an instrument chargeable with a duty not exceeding ten naye paise or a bill of exchange or promissory note. Sub sections (1-A), (1-B) (1-C) and (1-D) have been inserted in Section 40 by U.P. Act 38 of 2001 w.e.f. 20.5.2002. Sub-section (1-A) empowers the Collector to require, alongwith the amount of deficit stamp duty or penalty required to be paid under clause (b) of sub-section (1), payment of a simple interest at the rate of one and half per cent per mensem on the amount of deficit stamp duty calculated from the date of the execution of the instrument till date of actual payment; provided that the amount of interest under sub section 1 shall be re-calculated if the amount of deficit amount duty is varied on appeal or revision or by any order of a competent court or the authority. Sub section (1- B) of Section 40 creates a legal fiction providing that the amount of interest payable under sub section (1 A) shall be added to the amount due and and be also deemed for all purposes to be part of the amount required to be paid. Sub-section (1- D) provides for adjustment of refundable amount. Similar provisions are contained in Section 47 A.