Document Fragment View

Matching Fragments

17. The Division Bench of this Court in State of U.P. Vs. M/s SJP Infracon Limited & Another [Special Appeal Defective No. 27 of 2021, decided on 25.06.2021] has held as under:-

5. Sri Sanjay Goswami, appearing on behalf of the State (appellant), submitted that the Stamp Act is a taxing statute. Being a taxing statute, equitable considerations are relegated to the background. What is to be considered is whether the stamp duty imposed on the instrument is valid. If so, whether, under the provisions of the Stamp Act, there could be a refund of stamp duty to the first respondent. According to him, by Section 3 of the Stamp Act stamp duty is chargeable on the instrument at the rate specified in the Schedule. In the State of Uttar Pradesh, vide section 3 (aa) of the Stamp Act, on an instrument of lease, stamp duty chargeable is as specified in Article 35 of Schedule 1-B. Article 35 (b) of Schedule I-B of the Stamp Act becomes applicable where the lease is granted for a fine or premium or for money advanced and where no rent is reserved; and Article 35 (c) of Schedule I-B becomes applicable where the lease is granted for a fine or premium or for money advanced in addition to rent reserved. On instruments contemplated under Article 35 (b) or Article 35 (c) of Schedule 1-B, the stamp duty is payable as on a deed of conveyance under Article 23 (a) of Schedule 1-B either on the premium set forth in the lease or on the market value of the subject of the lease. The original lease instrument dated 15.11.2010 between GNIDA and the first respondent specified the premium as Rs.228,94,57,090/- and stamp duty was paid accordingly. The rectification deed dated 07.02.2013 between GNIDA and the first respondent though reduces the area leased out from 198135.62 square meter to 126302 square meter but does not amend the premium set forth in the original lease instrument. Thus, no excess stamp duty has been paid. Otherwise also, there is no challenge by the writ petitioner (first respondent herein) as to the correctness of the stamp duty charged on the instrument of lease dated 15.11.2010 or the deed of rectification dated 07.02.2013. Under these circumstances, the claim for refund of excess stamp duty paid is misconceived. In so far as the claim for allowances in respect of alleged spoiled stamps is concerned, the same is not maintainable because the provisions relating to such allowances are not attracted. According to him, the provisions of Section 49 (d) (1) & (2) of the Stamp Act are not applicable as the instrument of lease is not completely void from the beginning nor it has been rendered unfit for the purpose originally intended as the demise made by it continues to operate albeit for a reduced area. He submitted that the Apex Court's judgment in Libra Buildtech case (supra) is not applicable on the facts of this case as that was a case where the instrument chargeable to stamp duty was executed under orders of the court and it was cancelled by order of the court. Thus, there the instrument was rendered unfit for the purpose originally intended. Whereas here the instrument of lease remains operable. He submitted that even if it is assumed that the Principal Secretary had no power to review, the earlier order passed by the Joint Secretary was ex facie illegal and, therefore, the writ court ought not to have issued a direction to enforce the order which had no sanctity in law. He, thus, prayed that the judgment and order of the learned Single Judge being not legally sustainable be set aside. In the alternative, it was urged by him that if the petitioner had suffered any loss on account of the conduct of GNIDA it could proceed against it, as per law, but claim for refund against the State is not sustainable.

15. A plain reading of the extracted charging provision would reflect that the stamp duty is payable as per the value of the premium or advance set forth in the lease instrument. There is no dispute inter se parties that the stamp duty paid on the lease instrument is as per the value of the premium set forth in the lease instrument. Importantly, the correction deed, dated 7th February 2013, which has been brought on record as Annexure 5 to the writ petition, though reduces the area of land leased out, also does not make any indication with regard to reduction of the premium payable. Rather, at page 179 of the paper-book of the appeal, the correction deed, after making a declaration with regard to reduction in the area of land leased out, declares that "except as hereinafter varied/ modified the original lease deed dated 15.11.2010 which was duly registered in the office of Sub-Registrar Gautam Budh Nagar registered on 16.11.2010 Bahi No.1, Gild No.7558 Page No.77 to 110 on Sl No.23383 shall continue to have full force and effect. Plot number, location and boundaries are same. Consequently credibility of stamp duty is remains unaffected." Once this is the position, the submission of Sri Goswami that the stamp duty paid on the lease instrument read with the deed of correction was as per the provisions of the Stamp Act, and it was not over paid, appears correct, particularly, when, according to the charging provision, stamp duty is payable on value of premium set forth in the lease instrument. Under these circumstances, even if by a subsequent letter GNIDA had reduced the premium, as is the case of the first respondent, there would be no impact on the stamp duty leviable as that would be on the premium set forth in the lease instrument, which remained unchanged. It is thus held that the stamp duty paid by the writ petitioner was not in excess than what was payable on the lease instrument as per the charging section. That takes us to issue no.(ii) formulated above.